IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 516 of 2002
THE REPUBLIC
Versus
MABVUTO JOSEPH
In the Second Grade Magistrate court sitting
at Midima Criminal case number 179 of 2002
CORAM: DF MWAUNGULU
(JUDGE)
Kalaile, Senior State
advocate, for the state
Defendant, present, unrepresented
Kamanga, Official Interpreter
Mwaungulu,
J
JUDGMENT
The judge who reviewed
this matter set it down to consider the sentence. The court below convicted the
defendant, Mabuto Joseph, of theft of cattle. Theft of cattle is an offence
under section 281 of the Penal Code. The
lower court sentenced the defendant to five years’ imprisonment. The judge
thought the lower court’s sentence for theft of cattle manifestly
excessive.
The defendant stole a
pig. The defendant admitted the charges at the police. He pleaded guilty in the
lower court. The defendant is 18 years old. The defendant admitted to a
previous conviction for theft for which he served a prison term of four months.
The lower court’s reasoning on the sentence is meager. The lower court
considered the offence’s gravity from the sentence the legislature prescribed.
Clearly, however, the lower court imposed a heavier sentence because of the
defendant’s previous conviction
The sentencing
approach is the same in theft of cattle as with other offences. The sentencing
court must regard the nature and circumstances of the offence, the offender and
the victim and the public interest
Sentences courts pass,
considering the public interest to prevent crime and the objective of
sentencing policy, relate to actions and the mental component of the crime.
Consequently, circumstances escalating or diminishing the extent, intensity or
complexion of the actus
Besides
circumstances around the offence, the sentencing court should regard the
defendant’s circumstances generally, before, during the crime, in the course of
investigation, and during trial. The just sentence not only fits the crime, it
fits the offender. A sentence should mirror the defendant’s antecedents, age
and, where many are involved, the degree of participation in the crime. The
defendant’s actions in the course of crime showing remorse, helpfulness,
disregard or highhandedness go to sentence. Equally a sentencing court must
recognize cooperation during investigation or trial.
While
the criminal law is publicly enforced, the victim of and the effect of the
crime on the direct or indirect victim of the crime are pertinent
considerations. The actual circumstances for victims will depend, I suppose, on
the nature of the crime. For example for offences against the person in sexual
offences, the victim’s age is important. An illustration of circumstances on
indirect victims is the effect of theft by a servant on the morale of other
employees, apart from the employer.
Finally,
the criminal law is publicly enforced primarily to prevent crime and protect
society by ensuring public order. The objectives of punishment range from
retribution, deterrence, rehabilitation to isolation. In practice, these
considerations inform sentencing courts although helping less in determining
the sentence in a particular case.
Applying these principles
to theft of cattle, theft of cattle involves the intention to deprive the owner
of cattle. Section 281 includes many animals, some large, some small, some
ordinary an others exotic. Consequently, the sentence a court chooses as a way
of disposing the matter will depend on the number, type and size of the
animals. Generally the sentence will be higher for larger and more exotic
animals. The larger the number of animals involved, the greater the sentence.
The court may enhance the sentence where there were more crimes are more than one
person participated in the crime.
In this matter five
years imprisonment was manifestly excessive. A pig, just one, was all the
defendant stole. A pig is neither the largest nor the most exotic of animals
section 281 of the Penal Code lists. It is, no doubt, a useful possession for
ordinary people as the complainant is known to be. Moreover, the lower court
should have considered from trends in that court and this Court establishing
that more often than not more pigs are involved. If five years, ceteris paribus, is what a sentencing
court imposes for theft of a pig, difficulties there will be if more pigs,
larger and more exotic animals are stolen and stolen in larger numbers. Besides,
there were many matters calling for lesser sentence: the pig was restored to
the owner; the defendant pleaded guilty and was entitled to a reduction of up
to a third of the possible sentence; the defendant is 18 years old; and the
defendant cooperated during investigations.
Of course, the
defendant had a relevant previous conviction. It was only one. The defendant,
in my judgment, had not lost his whole right to leniency. The sentence of four
months indicates the previous conviction was petty. In an appropriate case, and
this was one, a sentencing court may overlook petty previous convictions (Rendall-Day v Republic (1966-68) ALR
(Mal) 155. Moreover, previous convictions are no reason for a sentence higher
than one the offence and the offender, after considering the circumstances of
the victim and the public interest, deserve. Decisions of this Court (R v White (1923-61) 1 ALR (Mal) 401; Bwanali v R (1964-66) ALR (Mal) 329) and
the Supreme Court (Maikolo v R (1964-66)
ALR (Mal) 584) are to the similar effect.
The sentence of five years
imprisonment is, as the reviewing judge and the state observed, inappropriate.
I set it aside. I sentence the defendant to a sentence as results in his
immediate release.
Made in open court
this
D F Mwaungulu
JUDGE