In
Count One, the appellant was sentenced to thirty six [36] months
imprisonment….,.
As
against sentence…, the grounds of appeal were that the trial court
had misdirected itself:
(i)
By not giving sufficient weight to the appellant's status as a
first offender and to the other mitigating features;
(ii)
By regarding imprisonment as the only punishment that is appropriate
for all ...
In
Count One, the appellant was sentenced to thirty six [36] months
imprisonment….,.
As
against sentence…, the grounds of appeal were that the trial court
had misdirected itself:
(i)
By not giving sufficient weight to the appellant's status as a
first offender and to the other mitigating features;
(ii)
By regarding imprisonment as the only punishment that is appropriate
for all purposes….,.
In
Count One, the sentence passed was incompetent, incidentally, a point
not forming part of the appeal. As the State correctly concedes now,
the penalty provision for indecent assault in the Criminal Code,
namely, section 67(1)(a)(i), prescribes a sentence of a fine not
exceeding level seven [i.e. $400=], or imprisonment for a period not
exceeding two years, or both. The court imposed thirty six months
imprisonment. This was a manifest misdirection. As such, this court
can interfere.
Defence
counsel pressed for twenty months imprisonment for Count One, not
because of the above misdirection, but on the grounds that the
appellant was a first offender whose mitigatory circumstances the
court a quo allegedly failed to take into account….,.
We
consider that the appropriate sentence for Count One should have been
twenty-four months imprisonment of which four months could have been
suspended on condition of good behaviour….,.
1…,.
2.
The appeal against sentence in Count One is hereby allowed;
3….,.
4.
The sentence of the court a quo, in Count One, is hereby set aside
and substituted with the following:
“Twenty
four months imprisonment of which four months imprisonment is
suspended for five years on condition that during this period the
accused is not convicted of an offence of a sexual nature for which
he is sentenced to imprisonment without the option of a fine.”…,.
