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» » Legal Perspectives: The Secret Behind Sentencing

…as Govt hikes fines

Fidelicy Nyamukondiwa

When one man is slapped with an effective imprisonment sentence and another is sentenced to pay a fine or perform community service for committing the same offence, people are often quick to conclude that it is corruption and injustice. Two or more persons who jointly commit the same offence can be punished differently because their degrees of participation and personal circumstances may differ. This editorial seeks to enlighten the core legal reasons why sentences sometimes substantially differ. It is also a highlight of Statutory Instrument 57 of 2020 which hiked fines with effect from 28 February 2020.
Duty of the court
In determining the sentence to be imposed in each particular case, the court takes into consideration a number of factors depending on the offence committed. For instance in  a case of rape, it may consider the parties’ ages, nature of  relationship if any, whether a weapon was used and the degree of force or violence used. Using prescribed sentencing guidelines, a court is mandated to rationally and objectively sentence the offender by weighing up mitigating against aggravating factors. It must give full reasons for whatever sentence it imposes.
Mitigating factors
Before sentence is passed, a convict is given an opportunity to lay down factors which persuades the court to impose a lenient sentence. Such factors are known as mitigating factors. Where an accused is legally represented, the lawyer ordinarily adduces evidence or makes written/oral submissions. Lawyers usually cite salient case law in an endeavor to persuade the court. With some guidance from the court, an unrepresented accused person is given an opportunity to outline mitigating factors.
Where a minimum mandatory sentence is prescribed (e.g. 9 years imprisonment for stock theft) the court must impose such sentence unless if special circumstances exist. Special circumstances were defined by the High Court in the 1988 case of State v Mbewe and more recently in State v Kambuzuma as extraordinary factors arising out of the commission of the offence or which are peculiar to the offender. Trapping a person to commit an offence is regarded as a special circumstance.
Duty of the Public Prosecutor
There is a misconception that a prosecutor’s duty is to ‘nail’ the accused. The prosecutor’s duty is to assist the court in arriving at the most appropriate sentence based on justice, fairness and proportion. The prosecutor may either accept or dispute accused’s mitigation. Where an accused is unrepresented the prosecutor is duty bound to assist in mitigation where necessary.
Aggravating factors.
After mitigation. the prosecutor may if he/she so wishes, assist the court by bringing to its attention factors which call for a more severe sentence. These are known as aggravating factors and they vary from case to case. Robbery for example is committed in aggravating circumstances if a firearm is used or if serious bodily harm is threatened or actually inflicted. Being a repeat offender is aggravating.
New Standard Scale of Fines.
There exist a Standard Scale of Fines which guides courts in imposing fines. In the same vein, there are what are known as fine levels. These levels range from level one up to level fourteen. The more serious the offence, the higher the level. If for example an offence is a level six offence that does not mean a court must always impose a level six fine. The prescribed level only acts as the upper limit which a court must not exceed. Level one is the lower limit in all cases.
A court has discretion to impose any fine as long as the fine is within the range between level one and the prescribed level. Driving a motor vehicle without a licence, criminal insult and ‘public drinking’ are examples of level six offences. Assault and Theft are level fourteen offences. In exercising discretion, the court is guided by mitigating and aggravating factors.
With effect from 28 February 2020, level one fine is now ZWL$ 200 (from ZWL$ 40). This means that courts or the police can no-longer impose a fine of less than ZWL$ 200. Other fine levels are now prescribed as following; level three; ZWL$ 500, level five; ZWL$ 2400, level six; ZWL$4800, level ten; ZWL$ 24 000, level thirteen; ZWL$ 60 000 and level fourteen ZWL$ 120 000 (from ZWL$ 30 000).The new fine schedule was published through the controversial Criminal Law Codification and Reform (Standard Scale of Fines) Notice, 2020 [Statutory Instrument 57 of 2020]. The government had last reviewed fines in September 2019 through Statutory Instrument 209 of 2019.
Police fines
Where a person voluntarily admits that he/she is guilty, the police has discretion to accept an Admission of Guilt Fine. This discretion only comes into play when a ranked police officer is of the view that the offence is so petty to an extent that a court will impose a fine not exceeding level three. This mostly applies to traffic offences, ‘public drinking/fighting’ cases, trivial assaults and other petty statutory offences. In view of SI 57 of 2020, the ZRP now has powers to accept ZWL$ 500 as deposit fine. It must be noted that all Admission of Guilt Fines are later sent to a magistrate for possible confirmation. If confirmed, the offender is regarded as having been convicted and sentenced by a court.  
The sentence imposed is determined by weighing mitigating against aggravating factors. The existence or non-existence of special circumstances is also a determining factor in cases where a minimum mandatory sentence is prescribed. With effect from 28 February 2020, no court can impose a fine of less than ZWL 200. The police is now empowered to impose fines as high as ZWL$500. The maximum fine that a court can impose is now pegged at ZWL$ 120 000. The secret behind sentencing is that each case is decided on its own merits.
Fiat Justitia Ruat Caelum!
Fidelicy Nyamukondiwa writes in his personal capacity. Contactable on 0785827154

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