CHEDA J: This is a review case referred to me by
the learned Regional Magistrate in the exercise of his power for scrutiny.
The accused
was charged with contravening section 131 of the Criminal Law (Codification and
Reform) Act, 2004 which is (unlawful entry into premises) which is formerly
“housebreaking”.
This crime
has now been simplified as it eliminates the requirements regarding the nature
of the premises broken into and the manner of entry. The use of the term unlawful entry into
premises broadens the crime as its objective is to protect people's privacy
against invasion.
The crime is
committed where entry is made without permission or authority by the lawful
occupier. Section 131 (2) deals with
aggravating circumstances for example:
(a) when the accused entered a dwelling house,
(b) knew that there were people inside the premises,
(c) used violence against any person, or
damaged or destroyed any property in effecting the entry, and
(d) whether the accused committed or intended to commit some
other crime.
In casu accused
was charged with contravening section 131 of the Code, but, the court dealt
with the matter as if accused was being charged with the common law crime of
housebreaking. This should not have been
the position. That crime has since been
replaced by section 131 of the Code.
This, therefore, means that the conviction was
improper. The accused should have been
charged with unlawful entry as one count and theft as the other. The courts, are, therefore, urged to bear in
mind the provisions of section 131 (2) with regards to sentence.
The following order is made:
(1) The conviction and sentence are set aside.
(2) The matter is referred back to the same court for a trial de novo before the same magistrate. In the event of a conviction the court should
not impose a sentence which is in excess of that which it imposed on the 5th
September 2011.
Cheda
J...................................................................
Ndou
J........................................................................I
agree
