The
accused was sentenced to two months imprisonment. A further two
months imprisonment which had been suspended on CRB N332/14 was
brought into operation and the effective custodial sentence of four
months imprisonment was imposed….,.
The
complainant is an eighteen year old female and the accused is twenty
years old, male, and unemployed. They are husband and ...
The
accused was sentenced to two months imprisonment. A further two
months imprisonment which had been suspended on CRB N332/14 was
brought into operation and the effective custodial sentence of four
months imprisonment was imposed….,.
The
complainant is an eighteen year old female and the accused is twenty
years old, male, and unemployed. They are husband and wife….,.
The
opinion of the Regional Magistrate
was that the sentence imposed was too harsh in the circumstances and
would alienate the parties and destroy their marriage. In his view, a
community service sentence would have met the justice of the case….,.
In
assessing sentence…,, the court considered…, in aggravation…,
the fact that the accused person was a repeat offender who had
previously been convicted of a similar offence….,.
It
has been suggested, by the Regional Magistrate,
that the trial magistrate ought to have considered imposing a
community service sentence, as opposed to sending the accused person
to prison. For that reason, it is postulated that the sentence
imposed was too harsh in the circumstances, more particularly because
the imposition of a custodial sentence was likely to break up the
family, which runs contrary to the purpose of the Domestic
Violence Act.
What
this court needs to consider is whether the trial magistrate, by
imposing a custodial sentence, made an error in the exercise of his
discretion. Did the trial magistrate act on a wrong principle, or
allow extraneous or irrelevant considerations to affect the
sentencing process? Did the trial magistrate make any mistakes of
fact or fail to take into account relevant considerations in
sentencing the accused person?
We
know, from the reasons for sentence, that the accused was not a first
offender.
Section
10(8) of the Domestic
Violence Act [Chapter 5:16] prescribes
the penalty for repeat offenders:
“Any
respondent who repeatedly breaches a protection order, whether or not
that respondent has been previously prosecuted for such breach, shall
be guilty of an offence and liable to imprisonment for a period not
exceeding five years.”
My
reading of section 10(8) of the Domestic
Violence Act is
that, once a court makes a finding that the respondent is a repeat
offender in terms of the Domestic
Violence Act,
or that he has breached a protection order repeatedly, there is a
custodial sentence of up to five years imprisonment.
In
this case, the accused was a repeat offender who had one previously
imposed custodial sentence that had been suspended on condition of
good behaviour brought into effect….,.
Clearly,
the sentence imposed fell within the purview of section 10(8) of the
Domestic
Violence Act [Chapter 5:16].
Where
is the misdirection on the part of the trial magistrate?
