The
learned magistrate found the accused guilty as charged and treating both
counts as one for purposes of sentence he sentenced the accused to twenty-four
months imprisonment of which six months was suspended for five years on
condition of good behaviour. In addition, the magistrate ordered the accused to
compensate the complainant in the sum ...
The
learned magistrate found the accused guilty as charged and treating both
counts as one for purposes of sentence he sentenced the accused to twenty-four
months imprisonment of which six months was suspended for five years on
condition of good behaviour. In addition, the magistrate ordered the accused to
compensate the complainant in the sum of $4,500= being the value of the
animals. None of the sentence was suspended on condition of the restitution
ordered.
Section
5 of the Trapping of Animals Central Act [Chapter 20:21] provides –
“Any
person who makes, possesses, or uses a class 1 trap for the purposes of
trapping any animal shall be guilty of an offence and liable to a fine not
exceeding level 8 or to imprisonment for a period not exceeding 3 years or to
both such fine and such imprisonment.”
It
is the imposition of restitution as part of the sentence which is not in
accordance with real and substantial justice. In the first place, all the meat
was recovered and presumably restored to the complainant. Even assuming that
the value thereof would be less than the value of live animals it cannot be
said that the complainant still lost $4,500=. If, indeed, it was necessary to
restitute, what should have been ordered is the difference between the value of
the live animals and the meat which was recovered – and not the full $4,500=.
No evidence was led to determine this value. I have also noted that the
magistrate did not suspend a portion of the sentence on condition of
restitution and this was a misdirection. For these reasons, I order as follows
-
(a)
That the conviction is confirmed;
(b)
That the sentence is confirmed only to the extent of the custodial term of an
effective eighteen months; and
(c) That the order for restitution in the sum of
US$4,500= be and is hereby set aside.
