This
matter came before me on automatic review. The accused appeared
before a magistrate at Silobela facing two counts as follows:
Count
1: Assault as defined in section 89 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] (the Code).
Count
2: Robbery as defined in section 126 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (the Code) in that on
the 16th
day of December 2012, and at Mazhata Store, Hozi Business Centre, the
accused unlawfully and intentionally used violence or threats of
immediate violence to Slim Sithole by assaulting him once on the back
with an iron bar and took US$1,219= the property of Slim Sithole and
in the lawful control of Slim Sithole in order to induce him to
relinquish control.
Although
paragraph 7 of the State Outline states that the value of property
stolen is $1,219= and nothing was recovered, the court a quo ordered
restitution in the sum of US$719=. In fact, the sentence is worded
thus:
“Count
1: 12 months imprisonment.
Count
2: 24 months imprisonment.
In
total, accused is sentenced to 36 months imprisonment of which 4
months is suspended for 5 years on condition accused does not within
that period commit any offence involving assault and/or dishonesty as
an element for which he is sentenced to imprisonment without the
option of a fine. A
further 4 months is suspended on condition accused restitutes
complainant in Count 2 the sum of US$719= by 28 February 2016.
Effective sentence is 28 months.”…,.
The
conviction is proper and I hereby confirm it. However, I raised a
query with the trial court in the following terms:
“The
accused stole US$1,219= from the complainant and nothing was
recovered. Why did the court order restitution in the sum of US$719=?
How did the court arrive at this figure as such information is
missing from the record of proceedings?”
The
magistrate responded as follows:
“…,.
I respond as follows to the review minute dated 15 January 2016 which
was received by me on the 24th
of February 2016.
I
concur that I made an error. I was supposed to order the accused
person to restitute the complainant in the sum of $1,219=. This was
an oversight on my part and in future I will be wary of such
mistakes.”
That
error renders the sentence incompetent. It is therefore set aside and
substituted with the following:
Count
1: 12 months imprisonment.
Count
2: 24 months imprisonment.
Of
the total of 36 months imprisonment, 4 months imprisonment is
suspended for 5 years on condition accused does not within that
period commit any offence involving violence on the person of another
and/or dishonesty as an element for which he is sentenced to
imprisonment without the option of a fine. A further 8 months
imprisonment is suspended on condition accused restitutes complainant
in Count 2 the sum of US$1,219= by the 30th
of June 2016. Effective sentence is 28 months imprisonment.
