This
matter was placed before me for review with the following comments from the
trial magistrate:
“May
you place the attached record before the Honourable Judge with this minute.
I
convicted the offender on his pleas of guilty in respect of three counts. In
passing sentence, I considered the he is a repeat offender. In retrospect, I
have realised that the accused appealed against the convictions I considered as
previous convictions. Secondly, I also brought into effect a suspended sentence
the accused had appealed against.
I
am referring the record to you for guidance.”
One
can easily discern two issues of concern from the trial magistrate.
Firstly,
the learned magistrate seemed to be of the view that once one appeals against a
conviction such an offender ceases to be regarded as a repeat offender for
purposes of assessing sentence in the event of future transgressions against
the law.
Secondly,
the learned magistrate also seems to hold the view that once an accused person
has appealed against a conviction, the suspended sentence, if any, cannot be
brought into operation pending the prosecution of such an appeal.
It
is trite that the lodging of an appeal per se does not suspend the execution of
sentence unless the requirements of section 63 of the Magistrates Court Act
[Chapter 7:10] have been fully complied with.
For
clarity's sake, section 63 of the Magistrates Court Act [Chapter 7:10] is
worded as follows:
“63
Execution of sentence of imprisonment, fine or community service not suspended
pending review or appeal unless bail granted.
The
execution of any sentence of imprisonment, fine or community service shall not
be suspended by –
(a)...,.
(b)
The noting of an appeal referred to in section sixty.
Unless
–
(i)
In the case of imprisonment, or fine, bail is granted by a judge or magistrate
in terms of section 123 of the Criminal Procedure and Evidence Act [Chapter
9:07]; or
(ii)...,.”
It
is quite clear that once bail is granted, pursuant to the noting of an appeal,
the execution of sentence is suspended pending the outcome of the appeal.
But
there may be occasion (though very rare) when a judge, or magistrate, may
refuse bail to an appellant but still direct that the appellant be treated as
an un-convicted prisoner pending the determination of his appeal, applications
or review. In such a situation, the execution of sentence is again suspended until
such time the appeal is heard and a determination made. This is the situation
provided for in section 123(7)(a) of the Criminal Procedure and Evidence Act
[Chapter 9:07].
A
perusal of the record of proceedings, and in particular the reasons given for sentence,
clearly show that at the time the accused was convicted of the instant offences,
he was on bail pending appeal, and as such, it was not competent for the trial
magistrate to treat him as either a repeat offender, or to consider the
bringing into operation a suspended sentence which is the subject of an appeal.
I
have considered the record of proceedings in this matter and..., I am satisfied
that save for the error made by the trial magistrate of prematurely bringing
into operation the twelve months previously suspended, the sentence itself
cannot be faulted.
Accordingly, the twelve months brought into
operation by the trial magistrate is hereby set aside, and the rest of the
sentence is confirmed.
