Alubisho v The People (SCZ Judgment No. 2 of 1976) [1976] ZMSC 2 (13 January 1976)

■ ALUBISHO v THE PEOPLE (1976) ZR 11 (SC) SUPREME 10 COURT SILUNGWE CJ, HUGHES JS AND MUWO AJS 13th JANUARY 1976 SCZ Judgment No. 2 of 1976 Flynote Appeal - Sentence - Discretion of trial court to select appropriate sentence - 15 Whether appellate court has such discretion - When appellate court should ■ interfere with sentence - Whether appeal judge should alter sentence merely because he thinks he might have passed a different one. Headnote Upon his own plea of guilty the appellant was convicted of stealing from a person a purse containing K22.00 cash and a National Registration 20 Card. He had a bad record of fifteen previous convictions for dishonesty. After stating, inter alia, words to the effect that the appellant was not entitled to the leniency which would normally be given to a first offender the magistrate sentenced the appellant to imprisonment with hard labour for two and a half years. The appellant appealed against this sentence to 25 the High Court. The appeal judge made the following observation: "Two and a half years' imprisonment with hard labour is the sort of sentence that I would expect to be imposed upon a first offender, not upon a man who has little or no claim to leniency. Two and a half years is quite inadequate" and thereupon increased the sentence to four years' 30 imprisonment with hard labour. Held: ■ ■ ■ (i) With the exception of prescribed minimum or mandatory sentences a trial court has a discretion to select a sentence that seems appropriate in the circumstances of each individual case. 35 An appellate court does not normally have such a discretion. ■ (ii) In dealing with an appeal against sentence the appellate court should ask itself three questions: (1) Is the sentence wrong in principle? (2) Is it manifestly excessive or so totally inadequate that it 40 induces a sense of shock? ■ 1976 ZR p12 SILUNGWE CJ (3) Are there any exeptional circumstances which would render it an injustice if the sentence were not reduced? Only if one or other of these questions can be answered in the affirmative should the appellate court interfere. Dictum 5 of Blagden, CJ, in Jutronich, Schutts and Lukin v The People [1] applied. I (iii) An appeal judge should not alter the sentence passed at a trial merely because he thinks he might have passed a different one. (1) Jutronich, 10 Schutts and Lukin v The People(1965) ZR 9. Case cited: ■ Judgment Silungwe CJ: delivered the judgment of the court. This is an appeal against sentence. Upon his own unequivocal plea of guilty the appellant, now aged about 38 years, was convicted of stealing from the person of Shadrick Malishana a purse containing K22 cash and a 15 National Registration Card. He had a bad record of fifteen previous convictions, all for dishonestly. After stating, inter alia, words to the effect that the appellant was not entitled to the leniency which would normally be given to a first offender the trial magistrate sentenced the appellant to imprisonment with hard 20 labour for two and a half years. Against that ■ ■ sentence the appellant appealed to the High Court. Concluding his observations on the supposed impropriety of the sentence the learned appeal judge said this: ■ "Two and a half years' imprisonment with hard labour is the sort of sentence that I would expect to be imposed upon a first offender, 25 not upon a man who has little or no claim to leniency. Two and a half years is quite inadequate." Thereupon the sentence was increased to four years' imprisonment with hard labour. With the exception of prescribed minimum or mandatory sentences a 30 trial court has a discretion to select a sentence that seems appropriate in the circumstances of each individual case. An appellate court does not normally have such a discretion. It is fitting to refer to the decision of the then Court of Appeal for Zambia in the case of Jutronich, Schutts and Lukin v The People [1], wherein Blagden, CJ, as he then was, said at 35 page ■ 10: ■ "In dealing with an appeal against sentence the appellate court should, I think, ask itself three questions: (1) Is the sentence wrong in principle? (2) Is it manifestly excessive so that it induces a sense of 40 shock? ■ (3) Are there any exceptional circumstances which would render it an injustice if the sentence were not reduced? Only if one or other of these questions can be answered in the affirmative should the appellate court interfere." 1976 ZR p13 SILUNGWE CJ That statement is sound in law; it is however, necessary, for a transparent reason, to recast (2) above by the addition of the phrase "totally inadequate" so that it now reads: "(2) Is it manifestly excessive or so totally inadequate that it induces a sense of shock?" ■ In this case it is not clear whether the learned appeal judge increased the sentence because the one that had been imposed by the trial court was so totally inadequate that it induced a sense of shock or whether he (the appeal judge) was merely substituting his own discretion for that of the trial court. If the enhancement was due to the first reason the approach 10 was, of course, correct in law, but if it was due to the second reason then that was clearly a misdirection since an appeal judge "will not alter the sentence passed at the trial merely because" he thinks "he might have passed a different one." (See paragraph 995 of Halsbury's Laws of England, 3rd Edition, Volume 10.) Where, as this case, reasonable doubt exists 15 as to what construction must be placed upon the ■ judge's phraseology then in the ordinary course of things the construction most favourable to the appellant must be adopted. Consequently it will be assumed in this case that the appeal judge substituted his discretion for that of the trial magistrate. The enhanced sentence must therefore be set aside and the 20 original sentence of two and a half years' imprisonment with hard labour restored. The sentence is effective from 25th April, 1975, the date upon which it was passed. Enhanced sentence set aside Original 25 sentence substituted ■ ■