CHEDA
J: This matter was forwardedto my brother Ndou J for review. He
has however, left the bench. Prior to his departure he had raised the
following queries:
“1.
May the learned Provincial magistrate explain her sentence?
2.
Is the sentence for both counts treated as one?
3.
It appears that accused 1 is a first offender yet he got a more severe sentence
than his two co-accused persons who have previous convictions.”
On the 17th
January 2013 the Provincial magistrate advised the Registrar that the trial
magistrate has since left service,
therefore there is no one to address the issues raised by the learned Judge.
I have perused the record and indeed I find an anomaly in the record of
proceedings with regards to sentence.
The brief facts of the matter are that the three accused aged 38, 27 and 42
were charged with and were convicted of one count of assault and 2 counts of
robbery. They were sentenced as follows:
“Accused 1- 5
years imprisonment of which 6 months is suspended for 5 years on condition the
accused is not within that period commit of any offence involving violence as
an element for which upon conviction he is sentenced to imprisonment without
the option of a fine.
Accused 2 – 2
years imprisonment. In addition the 2 years suspended on CRB 200/08 is
hereby brought into effect. 4 years effective.
Accused 3 – 4
years imprisonment. In addition the 2 months suspended on CRB 14/00 is
hereby brought into effect as well as the 40 days suspended on CRB 283/10
(Filabusi). 4 years , 3 months and 10 days effective.”
The learned Judge's concern was with the disparity of sentences passed.
The accused were convicted of the same crimes, but, were sentenced
differently. Indeed the trial court is at liberty to treat accused
differently depending on their personal circumstances, most importantly in
relation to the role each accused played in the commission of the offence.
This is the general approach, however, should the court find it necessary to
differentiate, it should clearly state its reasons for doing so.
In casu the learned trial magistrate has not proffered any reasons for
her departure from this general approach. In the absence of such reasons
I am left with the only irresistible conclusion that she did not apply her mind
to the sentencing process.
Failure to apply one's mind to the work at hand is tantamount to a
misdirection.
It is therefore clear that accused one has
been prejudiced due to the learned magistrate's misdirection. In light of
this, her sentence should be interfered with: The following order is
made;
Order
(1)
The conviction is confirmed, but, the sentence for accused 1 is set aside and
is substituted by;
1.1
3 years imprisonment of which 1 year imprisonment is suspended on condition
accused does not within that period commit an offence of which violence is an
element for which upon conviction he is sentenced to imprisonment without the
option of a fine.
Cheda
J..................................................................................
Mutema
J agrees.................................................................
