Prior to his departure he had raised a
query with regards to the sentencing approach by the magistrate.
The accused was charged with 3 counts of
stock theft involving 3 heifers. He pleaded not guilty to all the 3
counts but nonetheless was convicted of the three counts. Having found no
special circumstances he was sentenced as follows:
“Count 1 – 9 years imprisonment
Count 2 – 9 years imprisonment
Count 3 – 9 years imprisonment
Sentences in counts 1 and 2 to run
concurrently.”
Accused stole three heifers from his employer
and sold them to two different people. He was arrested following a tip
off.
Ndou J queried as to whether by making
counts 1 and 2 run concurrently the court had not reduced the sentences to
below 9 years per count.
The learned trial magistrate's view is
that certain counts can run concurrently as they maybe burdensome if left as
they are bearing in mind that the two counts are related. The learned
magistrate has misdirected himself in this matter. The mandatory
sentences can not be interfered with in a manner that effectively reduces or
removes the sting of a court in that manner. If the magistrate desired to
reduce the net effect of the sentence he should have treated the two closely
related counts as one and added the remaining count so as to give a harsher
sentence. Left as it, accused has not been sentenced for counts 1 and 2.
In view of the misdirection the following
is the order:-
Order
(1)
the conviction is confirmed
(2)
the sentence is set aside
(3)
the matter is referred back to the trial magistrate for the re-assessment of a
suitable sentence.
Cheda
J..............................................................................
Mutema
J agrees.........................................................................
