CHEDA J: This
is an appeal against sentence. Appellant
was charged with 2 counts of contravening section 4(i)(a)(i) of the Exchange
Control Act Regulations, Statutory Instrument 109/96 as read with section
5(1)(a)(i) of the Exchange Control Act Chapter 22:05. She was convicted and sentenced to 15 months
imprisonment.
Appellant's contention is that the
trial magistrate's sentence on her was unduly harsh in the circumstances and
referred us to case authorities which supported the need to first consider
community service for sentences less than 24 months imprisonment – see S v Majaya
HB-15-03 and S v Manyerere HB-38-03.
On the other hand, it is
respondent's view that the sentence imposed is appropriate as stipulated by
section 5 (b) of the Act under discussion which reads:
“(5) Where
an individual is convicted of an offence in terms of –
(a)
Subsection
(1) which involves a failure-
(i)
To
furnish to any person any information; or
(ii)
To
produce any books, accounts or documents or any other records;
Or
(b)
Subsection
(1) and he has previously been convicted of an offence, whether similar in
nature or not, in terms of subsection (1);
The court shall, in addition to any fine which it might be required by
subsection (4) to impose or which it otherwise deems fit, impose a sentence of
imprisonment for such period as it deems fit.” (my emphasis)
It is the interpretation of this
section that respondent is of the view that the court a quo was correct in imposing a term of imprisonment.
My understanding of this section is
that the legislatures empowered the court to impose a prison term in addition
to a fine for a repeat offender not that a custodial sentence should be imposed
without first imposing a fine.
It is for that reason that I am of
the opinion that the court a quo
misdirected itself in this matter.
This misdirection therefore attracts
this court's attention to interfere with the sentence passed by the trial court.
Accordingly, the following order is
made:-
1.
The
conviction is confirmed, but the sentence is set aside and substituted by the
following:-
Ndou
J ………………………………………… I agree
