IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case number 669 of 2002
REPUBLIC
Versus
SYMON KAMUNA
From
the First
CORAM: DF MWAUNGULU (JUDGE)
Chimwaza, Deputy Chief State
Advocate, for the State
Defendant, present,
unrepresented
Kamanga, court interpreter
Mwaungulu, J
JUDGEMENT
The judge who reviewed this matter set it down to
consider the sentence the lower court imposed on the defendant. The
The facts are not complex and, to the extent they
resolve matters the judge raises, are as follows. The defendant stole items
worth K 375 from a hawker. He pleaded guilty in the lower court. The lower
court approached the matter from the perspective that theft is a very serious
offence. Of the crimes in our Penal Code, the law indicating offences involving
high moral turpitude, simple theft is not even in the top or middle bracket of
serious crimes under our criminal law. On the contrary, among the felonies, a
classification still persisting in our criminal law, theft is the lowest of
offences, attracting a maximum sentence, as the lower court observed, of five
years imprisonment. Neither was this crime committed in circumstances
justifying aggravation of the sentence.
The lower court also approached the matter from the
perspective that the lower court previously convicted the defendant of unlawful
wounding. The lower court thought the defendant was not entitled to leniency at
all. The lower court should not have approached the matter that way. First, the
offence was quite different from the one the lower court convicted the
defendant for this time around. Generally, and the case of R v Chang’ono (1964-66) ALR (Mal) 415, suggests it, it is previous
convictions the similar offence charged that the court should consider. Moreover,
the defendant had only one previous conviction. In Republic v Zwangeti Conf. Cas. No. 179 of 2002, unreported, this
Court said:
“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.”
Thirdly, previous convictions are not a reason
for passing a sentence higher than one justified by the nature and
circumstances of the offence, the circumstances of the offender and the victim
and the public interest. There are decisions of this Court: see Bwanali v R (1964-66)3 ALR (Mal) 329.
There is also a decision of the Supreme Court: Maikolo v R (1964-66) ALR (Mal) 584. The sentencing court must
arrive at the right sentence deserved by the crime. After that, previous
convictions are reasons for maintaining the right sentence (R v White (1923-61) 1 ALR (Mal) 401; and
Bwanali v R.
The
offence, theft of property worth K 375, even factoring in the victim’s station
in life, is manifestly excessive. Moreover, the defendant is young, pleaded
guilty to the offence and is offending for the first time. It is wholly
inappropriate for sentencing courts to pass long and heavy sentences for young
offenders committing otherwise not serious offences. For first and youthful
offenders, a short and a quick prison sentence, if deserved, may just be as effective.
Sentencing courts must take pleas of guilty seriously. Apart from saving courts
resources, time and space, such pleas redirect the court’s effort to more
deserving cases. Moreover, such pleas are the surest proof that avoids
miscarriages of justice possible through the trial process. Lowe courts should,
when dealing with first offenders follow the suggestions this Court made in Bobat v Republic Criminal Appeal case
number 29 of 1994, unreported. This is a sure way to arrive at the right
sentence. In my judgment a sentence lower than six months was appropriate. The
lower court should have ordered community service or suspended the sentence. I
pass a sentence as results in the defendant’s immediate release.
Made
in o[pen court this 24th Day of July 2003.
D F Mwaungulu
JUDGE