Procedural Law-viz criminal review.
Firearms Violations-viz unlawful possession re section 4(4) of the Firearms Act [Chapter 10:09].
Sentencing-viz sentencing approach re special circumstances.
Sentencing-viz sentencing approach re special circumstances iro mandatory sentences.
Sentencing-viz firearms violations.
Charge-viz firearms violations.
Firearms Violations-viz unlawful possession of ammunition re section 4(4)(a) of the Firearms Act [Chapter 10:09].
Firearms Violations-viz unlawful possession of a firearm re section 4(1) of the Firearms Act [Chapter 10:09].
Firearms Violations-viz unlawful possession of a firearm re section 4(2) of the Firearms Act [Chapter 10:09].
Firearms Violations-viz mandatory sentence re Act Number 22 of 2001.
Sentencing-viz mandatory sentences re firearms violations iro Act Number 22 of 2001.
The
accused was charged before a Western
Commonage magistrate of the unlawful possession of a Star pistol with a
magazine of three rounds in contravention of section 4(4) of the Firearms Act
[Chapter 10:09]. He was convicted after admitting the charge in a summary trial….,.
It is clear that the learned trial magistrate did not check, or at least read,
the Firearms Act before the trial. If he
had done so, he would have realized the following flaws:
First, subsection (4)(a) of section 4 of the
Firearms Act [Chapter 10:09] only deals with the unlawful possession of
ammunition. For the unlawful possession of the Star pistol, the accused should
have been charged with a contravention of section 4(1) of the Firearms Act
[Chapter 10:09] as read with section 4(2) of the Firearms Act [Chapter 10:09].
The
learned magistrate carried out an enquiry on the existence or otherwise of
special circumstances. He did not find
any and sentenced the accused to “mandatory” sentence of five (5) years…..,.
Second,
the maximum penalty is now “a fine not exceeding level ten or to imprisonment
for a period not exceeding five years or to both such fine and such
imprisonment.”
Third,
the mandatory sentence of five (5) years was done away with by Act Number 22 of
2001. The enquiry on the existence of special circumstances was an exercise in
futility. Because of these material flaws, the conviction and sentence cannot
stand. To do justice in the circumstances, I have quashed the conviction, set
aside the sentence and order a trial de novo before a different magistrate.
It is accordingly ordered that the conviction is
quashed and the sentence be set aside. The accused to be tried afresh before a
different magistrate.
NDOU J: The
accused was charged before a Western
Commonage magistrate of the unlawful possession of a Star pistol with a
magazine of three rounds in contravention of section 4(4) of the Firearms Act
[Chapter 10:09] (herewith referred to as “the Act”). He was convicted after admitting the charge
in a summary trial. The learned
magistrate carried out an enquiry on the existence or otherwise of special
circumstances. He did not find any and
sentenced the accused to “mandatory” sentence of 5 years. It is clear that the learned trial magistrate
did not check or at least read the Firearms Act before the trial. If he had done so, he would have realized the
following flaws.
First, subsection (4)(a) of section
4 only deals with the unlawful possession of ammunition. For the unlawful possession of the Star
pistol, the accused should have been charged with a contravention of section
4(1) as read with (2) of the Act. Second,
the maximum penalty is now “a fine not exceeding level ten or to imprisonment
for a period not exceeding five years or to both such fine and such
imprisonment.”
Third, the mandatory sentence of
five years was done away by Act number 22 of 2001. The enquiry on the existence of special
circumstances was an exercise in futility.
Because of these material flaws, the conviction and sentence cannot stand. To do justice in the circumstances, I have quashed the conviction, set aside the
sentence and order a trial de novo
before a different magistrate.
It is accordingly ordered that the
conviction is quashed and the sentence be set aside. The accused to be tried afresh before a
different magistrate.
Kamocha J
…………………………………………………….I agree
