Benua v The People (SCZ Judgment No. 4 of 1976) [1976] ZMSC 3 (27 January 1976)

BENUA v THE PEOPLE (1976) ZR 13 (SC) SUPREME COURT SILUNGWE CJ, GARDNER AD CJ AND HUGHES JS 27th JANUARY 1976 SCZ 30 Judgment No. 4 of 1976 ■ Flynote Criminal law - Sentence - Plea of guilty - Need to take into account - Failure - Error in principle. Headnote Facts to be taken from the judgment. Held: (i) A plea of guilty must be taken into account in considering a 35 sentence unless there are circumstances such as a man being caught red - handed when he has no alternative. Failure to take into account a plea of guilty is an error in principle. ■ Appellant in person. I M Lwatula, State Advocate, for the respondent. 40 Judgment Gardner ADCJ: delivered the judgment of the court. 1976 ZR p14 ■ GARDNER AD CJ The appellant was convicted of the offence of aggravated robbery and sentenced to twenty years' imprisonment. He appeals against that sentence. I The circumstances of the offence were that the appellant with 5 others held up a car and took therefrom keys which they used for a store-breaking. The appellant was the one who held and threatened with a revolver the occupant of the car. There were three accused, in this case. The first accused had one previous conviction involving dishonesty and he was sentenced to twenty 10 years' imprisonment with hard labour. The second accused was a first offender and he was sentenced to eighteen years' imprisonment with hard labour. Both those accused pleaded not guilty as a result of which trial had to be held. The appellant, however, pleaded guilty and he also was a first offender. The learned trial judge sentenced him to twenty 15 years' imprisonment with hard labour on the grounds that he was the one that held the gun. However, all three accused had a common purpose to use the gun and they were all equally guilty of the offence. The appellant appeals against his sentence on the grounds that the learned trial judge did not take into account the fact that he pleaded guilty. This court has said before that a plea of guilty must be taken into account in considering a sentence unless there are circumstances such as a man being caught red - handed when he has no alternative. Failure to take into account a plea of guilty is an error in principle. The appeal against sentence will be allowed. The sentence is set aside and in its place we 25 substitute a sentence of eighteen years' imprisonment with hard labour with effect from the 28th September, 1973. Appeal against sentence allowed Sentence of eighteen years' imprisonment with hard labour substituted. ■ ■