…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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Conclusion.
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.
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!
