Online Reporter
Criminals who steal large sums of money or property, and this includes those who steal through fraud and corruption, can regard subsequent arrest and a jail term as a “business risk” that they can cope with when set against their criminal gains.
They will do the time so long as when they come out they can enjoy the wealth of laundered criminal gains.
A lot of effort has been made in recent times to make sure they cannot. Almost 40 years ago an innovative High Court judge, backed enthusiastically on the automatic appeal by the Supreme Court, brought in the concept of mitigation in arrears, that is a criminal could have a decent chunk of their jail term suspended if they paid back the money they stole or gave equivalent value.
The argument was that if they had given up their criminal gains before the trial, that would have been considered seriously mitigating when it came to sentence. The judge thought this could be extended to having the same chance of mitigation after sentence, since victims often wanted their money back more than they wanted the criminal to spend ever so many years in jail, although some sort of punishment was needed.
This has often worked. Even those criminals who first grit their teeth in court and decide to “do the time” change their minds after a few months behind bars, and there have been a number of cases when those in jail have urgently sought an extension of the time they were granted to raise the funds to benefit from the suspension of some years of their term.
At the same time the law has long allowed a civil ruling at the conclusion of many criminal cases for identified stolen property to be returned. There has been a growing enthusiasm by the prosecuting authorities and the Zimbabwe Anti-Corruption Commission to go for a civil seizure of assets that have been probably acquired through dishonesty.
This takes care of both the cases where there was a conviction, and so the high standard of criminal proof is involved, and these days in cases where a conviction was impossible, since there was no proof beyond a reasonable doubt. But in a civil case there is only need for a balance of probabilities, so it is quite possible for a person to be acquitted of theft or corruption, but still lose the property they acquired with the proceeds of that probable theft or corruption.
But that still leaves the criminal who squandered the cash they stole, and so cannot return it, or has managed to hide the money or has even managed to launder it so that it cannot be traced. And they might well be ready to “do the time” because they cannot return it, having squandered it, or because they do not wish to cut into their own legal assets to find the equivalent.
Prosecutor-General Justice Loice Mutanda-Moyo has made it clear in her long drive to make sure that no crime will pay by seeking property orders both to strip criminals of their gains and as a serious deterrent against those who think they can get away with crime or at least cannot suffer more harshly than a few years behind bars.
The National Prosecuting Authority found an ideal test case to take to the High Court, a criminal who had been convicted of embezzling money from their employer and although offered a suspension of two years of the subsequent jail term if they paid it back had decided to serve the extra two years. But their former employer was still missing the stolen money.
The authority investigated, and found that the thief had a property with a market value about three times the value of what was stolen. But detailed investigations suggested that this property had been built up using legal funds and so there could not be the automatic civil order to make the thief disgorge their illegal gains.
So the authority went to the High Court seeking an order that they could seize and sell that property, extract the value of the stolen money, and then give the former owner the change.
The case was properly heard, with the thief having legal representation. But the judge was convinced by the National Prosecuting Authority’s argument that crime cannot be allowed to pay and that victims of crime are entitled to compensation.
So he granted the order wanted. We would guess that this, being a partial extension of existing law and so setting a precedent, is likely to go on appeal to the Supreme Court. But it is only a very modest extension of the existing law, since we and many others believe that a thief does have a debt to those he stole from.
And “doing the time” does not repay that debt and the victim is still minus what was stolen.
The new ruling makes it clear that the punishment for the crime, the sentence granted after the criminal trial, can be separated from the need to compensate the victim in a subsequent civil action.
We would in fact go further and would like to see the courts becoming more assertive in the need to compensate victims of crime, and not just those who have had property or money stolen. In other cases, such as assault, it is possible to sue for damages in a civil court, with any criminal conviction making it clear that there is no argument about the assault, only about how much should be paid.
However, the cost of a legal action is often high, since lawyers have to be hired and a difficult criminal can push the legal costs unaffordably high through delaying tactics and the like.
Some of those who have sued for damages have discovered that they eventually win less than the cost of their lawyer, or that the criminal has inadequate assets to fulfil the court judgment.
Something more automatic for damages accompanying criminal cases would, we believe, be a useful extra deterrent so that victims of crime are not just a witness to the crime and helping to secure the conviction, but can be helped to recover from the crime.
