S v Mutetwa (CRB 4080 of 2013) [2015] ZWHHC 374 (15 April 2015)

1 HH 374-15 CRB 4080/13 THE STATE versus MAXWELL MUTETWA HIGH COURT OF ZIMBABWE MAFUSIRE & CHIGUMBA JJ HARARE, 16 April 2015 Criminal Review MAFUSIRE J: The accused was convicted of theft of trust property as defined in s 113(2) of the Criminal Law (Codification & Reform) Act, [Cap 9: 23]. He was sentenced to twelve months’ imprisonment of which five months imprisonment was suspended for five years on condition of good behaviour. A further two months’ imprisonment was suspended on condition of restitution. The remaining five months imprisonment was commuted to community service. On scrutiny the regional magistrates raised two queries. The first was that the trial court sentenced the accused as a first offender yet the record makes no indication that the prosecution had so advised the court. The second query was that the order of restitution was imposed by the trial court mero motu, i.e. without any application by the prosecutor or the complainant as contemplated by s 368(1) of the Criminal Procedure and Evidence Act, [Cap 9:07] (“the CP & E Act”) To the first query the trial magistrate conceded that she had omitted to record that the prosecution had indicated that the accused was indeed a first offender. To the second query the trial magistrate stated that she had acted in terms of s 358(3) (b) of the CP & E Act and that s 368(1), which the regional magistrate had cited, applied to s 366. In response to the response by the trial magistrate the regional magistrate argued that s 358(3) (b) did not refer to restitution but to compensation, and that at any rate, whether the section referred to compensation or restitution, the trial court ought not to have made such an order without an application having been made by either the prosecutor or the complainant as required by s 368(1). HH 374-15 CRB 4080/13 I have considered the record of proceedings and the queries by the regional magistrate. With regards the first query, the trial magistrate ought to have recorded the fact that the prosecutor had informed the court that the accused was a first offender. It is hoped that such a mistake will not recur. However, since the omission caused no prejudice, and since, according to the trial magistrate, the prosecutor had indicated that the accused was indeed a first offender, the proceedings shall not be upset for that omission. With regards the second query, the correct position, with all due respect to the regional magistrate, is that adopted by the trial magistrate. The following should be noted: In terms of s 358(2) (b), as read with sub-section (3) (b) of the CP & E Act, a court which has convicted a person of an offence which is not one specified in the Eighth Schedule, may suspend the operation of the whole or a portion of the sentence for a period not exceeding five years on condition that the accused pays compensation for the damage or pecuniary loss caused by the offence. An application by the prosecutor or the complainant is not a pre-requisite. The power of a court to suspend the whole or a portion of the sentence on condition of compensation in terms of s 358 aforesaid should not be confused with the power of the court to order compensation or restitution under Part XIX of the Act. The compensation under s 358 is part of the sentence. The award of compensation under Part XIX is not. That the compensation under s 358 is part of the sentence is clear from sub-sections (4) and (9). In terms of ss (4) the suspended portion of the sentence falls away where the accused complies with the condition of suspension. Under ss (9), where the accused complies with only a part of the condition, then the suspended portion falls away to the extent of the part compliance, as the court may consider appropriate. That the compensation under s 358 is part of the sentence is also clear from the proviso to para (b) of ss (3) of s 358. It reads: “Provided that no such condition shall require compensation to be paid in respect of damage or loss that is the subject of an award of compensation in terms of Part XIX.” In other words, where the damage or loss caused by the offence is one in respect of which an award of compensation may be made by the court under Part XIX, then it is HH 374-15 CRB 4080/13 not competent for the court to impose it in lieu of a portion of the sentence as can be done under s 358(2) (b) as read with s (3) (b). That the award of compensation under Part XIX is not part of the sentence is manifest from a reading of that whole part. It is clear that under this part the criminal court is enjoined to exercise a special civil jurisdiction which, among other things, is unfettered by the usual limits of civil jurisdiction, for example, such as those imposed on the court of a magistrate under the Magistrate’s Court Act, Cap 7:10, or any other enactment. Section 367 of the CP & E Act expressly empowers the court to award compensation in any amount or restitution of property of whatever value. That in making an award under Part XIX the court will be exercising a civil function is also evident from the following provisions:  the provision that requires that such an award be made only upon an application being made by the injured party or the prosecutor [s 368], which is not a requirement under s 358;  the provision that the award of compensation be registered by the registrar of the High Court or the clerk of the magistrate’s court for enforcement [s 372(1) and (2)], which is not necessary with a s 358 award;  the provision that says any appeal by the accused person against conviction or sentence or both does not affect or suspend the award even if the execution of the sentence may have been suspended, or even if such an appeal is successful [s 372(3)];  the provision that the injured party in respect of whom the award is made is debarred from instituting separate civil proceedings in respect of the loss or injury which has been the subject of the award [s 374]. In conclusion, the award of compensation by the court under s 358 of the CP & E Act, and the nature and purpose of such an award are manifestly different from those under Part HH 374-15 CRB 4080/13 XIX. The observation by the regional magistrate that s 358(3) (b) refers to “compensation” and not “restitution” is, with due respect, a distinction without a difference. In para (b) of ss (3) the compensation is for “damage or pecuniary loss caused by the offence.” In law “compensation” is money or something that one gives to another in lieu of the hurt or harm or damage or loss caused. “Restitution” is the same. It is the giving back of something that was lost or stolen. It is also the payment, usually of money, for some harm or wrong done. Notwithstanding that Part XIX of the CP & E Act is titled “COMPENSATION AND RESTITUTION”, it is noted that except for s 366(2) and 367 where the term “restitution” is used in reference to the restoration of property obtained unlawfully, in all other instances only the term “compensation” is used, the same as in s 358. Therefore, the proceedings of the trial court are hereby certified as having been conducted in accordance with real and substantial justice. 15 April 2015 CHIGUMBA J agrees …………………….