Jutronich, Schutte and Lukin v The People (ZR 9 (CA)) [1965] ZMCA 19 (15 April 1965)

JUTRONICH, SCHUTTE AND LUKIN v THE PEOPLE (1965) ZR 9 (CA) COURT OF APPEAL BLAGDEN CJ, DENNISON AND CHARLES JJ 15th April 1965 Flynote and Headnote [1] Criminal Procedure - Sentencing - general approach of appellate court: In dealing with appeals against sentence the appellate court should ask itself these three ques�ons: (1) Is the sentence wrong in principle? (2) Is the sentence so manifestly excessive as to induce state of shock? (3) Are there excep�onal circumstances which would render it an injus�ce if the sentence was not reduced? [2] Criminal Procedure - Appeal against sentence - general approach of appellate court: See [1] above. [3] Criminal Procedure - Sentencing - hardship to accused and family not a factor to be considered: Hardship to family and dependants and to the accused himself is an inevitable consequence of criminal convic�on and, accordingly, should not be considered in imposing sentence. [4] Criminal Procedure - Sentencing - disparity of sentence for comparable crimes: Disparity of sentences for crimes of comparable character is a factor which can be taken into account on an appeal against sentence. [5] Criminal Procedure - Sentencing - mercy granted by Execu�ve not relevant in sentencing for crimes of same character: In sentencing, courts do not consider the fact that the Execu�ve has exercised mercy in arguably similar cases. [6] Criminal Procedure - Sentencing - prison treatment and administra�on not relevant in passing sentence: In sentencing, the court pays no aten�on to details of prison treatment and administra�on unless a change in treatment was so fundamental as to alter the very character of the sentence passed. Case cited: R v Ball (1951) 35 Cr. App. R 164. Cunningham, for the appellants Shoniwa, State Advocate, for the respondent Judgment Blagden CJ: The three appellants in this case, John Vincent Jutronich, Tom Schute and Lionel Edmond Lukin, were convicted by the Senior Resident Magistrate's Court, Kitwe, on five counts of the� of goods in transit contrary to sec�ons 243 and 247 (c) of the Penal Code (Cap. 6). The concurrent sentences passed on these counts aggregated four years' imprisonment with hard labour and were subject to High Court confirma�on. The appellants appealed to the High Court against their convic�ons and sentences but abandoned their appeals against convic�on. Their appeals against sentence were dismissed by Mr Jus�ce Ramsay. 1965 ZR p10 BLAGDEN CJ The facts were that the first appellant who is aged 34, and was at the material �me a scrap dealer, and the second appellant who is aged 34, and was at the material �me a railway shunter, and the third appellant who is aged 28, and was at the material �me a railway engine driver, over the period of the 2nd to 20th June last year, working in concert, carried out a series of large scale the�s of copper in transit from public transport, namely, Rhodesian Railway trucks. The learned Senior Resident Magistrate who tried this case described their ac�ons as commited with a high degree of organisa�on and skill. The total value of the copper stolen in the course of the five transac�ons was £11,400; and in weight something over 50 tons was stolen. These offences clearly comprised a criminal enterprise planned and executed on the grand scale, and deserving of the condign punishment which was imposed. [1] [2] In dealing with an appeal against sentence the appellate court should, I think, ask itself three ques�ons: (1) Is the sentence wrong in principle? (2) Is it manifestly excessive so that it induces a sense of shock? (3) Are there any excep�onal circumstances which would render it an injus�ce if the sentence were not reduced? Only if one or other of these ques�ons can be answered in the affirma�ve should the appellate court interfere. The principles which should guide a court in passing sentence have perhaps never been beter expressed than by Mr Jus�ce Hilbery in the case of R v Ball (1951) 35 Criminal Appeal Reports 164. I will content myself with quo�ng only three sentences from his judgment at page 165: ' In deciding the appropriate sentence a Court should always be guided by certain considera�ons. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preven�ng it.' Mr Cunningham on behalf of the appellants has advanced five grounds of appeal in each case. The first ground was that the appellant was a first offender; that circumstance the magistrate clearly took into considera�on. The second ground was that he had made no profit whatsoever from his crime. As to that, it seems to me, that the fact that the appellants made no profit can hardly be atributed to any creditable ac�ons or mo�ves on their part, but rather more to the astuteness and energy of the police who brought them to Jus�ce. The third ground is expressed in these terms: ' that he has already endured considerable punishment by way of loss of earnings in the conduct of his defence.' That was elaborated in argument to include the extreme hardship which was caused to the appellants' families by the same financial considera�ons. [3] As to this, I can only say that hardship to families 1965 ZR p11 BLAGDEN CJ and dependants and to the appellants themselves of this nature is a natural and indeed an inevitable consequence of indulging in criminal ac�vi�es. They should have thought of these consequences before they engaged in these ac�vi�es. The fourth ground is that the sentence is dispropor�onate to those inflicted in more serious cases which have notoriously been the subject of governmental remission. [4] Disparity of sentence is certainly a factor which can be taken into account on an appeal against sentence; but the disparity must relate to sentences for offences of the same or at least of comparable character, and no such disparity has been shown here. Moreover, the instances which Counsel clearly had in mind - he referred to murderers and arsonists - were cases where no cri�cism could be levied at the sentences which were imposed. [5] They were cases where the preroga�ve of mercy had been exercised under sec�on 54 of the Cons�tu�on. That is an exercise of the Execu�ve and not the Judicial power. The courts are not concerned with it, except perhaps - and then but rarely - to recommend to the Execu�ve that considera�on might be given to the exercise of that preroga�ve on account of special circumstances. And may I say that I see no such circumstances here. Finally, it is urged in the fi�h ground of appeal that recent changes in penal administra�on render the punishment far more severe than the learned Senior Resident Magistrate should ever have had in mind. A court in sentencing an offender to imprisonment would take account of circumstances which would make that imprisonment par�cularly hard for that par�cular offender to bear, and would adjust the period of imprisonment accordingly. That is an accepted principle. If such a circumstance were brought to the no�ce of an appellate court, and it was clear that that circumstance had not been made known, and could not have been made known to the sentencing court, the appellate court might interfere to reduce the sentence or to remit the case for re-sentence in the light of the new circumstance. It is said that there is a new circumstance here which was not and could not have been made known to the Senior Resident Magistrate, namely, a change in prison administra�on which will have the effect of increasing the severity of the appellants' sentences. Had the Senior Resident Magistrate been aware of this, it is argued, he would, or at any rate might have passed a less severe sentence; and similarly, with the judge who heard the appeal. [6] Now, let me make it quite clear that this court is not concerned with the details of prison treatment and administra�on. Only where it could be shown that there had been a fundamental change in penal treatment such as would alter the very character of the sentence passed, and that to the prisoner's substan�al disadvantage, would this court or indeed any appellate court be jus�fied in interfering with a sentence on these sort of grounds. Reference to the Prison Regula�ons of 1956, and to recent amendments thereto, discloses no change even approaching this character. 1965 ZR p12 DENNISON J Editor - Prison Regula�ons of 1956 are in Federal Government No�ce No. 42/1956, which are incorporated under the Zambia Prisons Act, 1965 (Zambia Act No. 56, 1965), by s. 147 (2) (a). For 'recent amendments' see e.g. Zambia Statutory Instrument No. 82/1964 ('Diets'). In sentencing the appellants the Senior Resident Magistrate said this: 'You stand convicted on five charges, each of which carries a maximum punishment of seven years' imprisonment with hard labour, charges of the� in transit of great quan��es of copper, a valuable metal which is vital to the economy of this country. The�s of, and the receiving of, stolen copper are as I know from experience in this court prevalent offences on the Copperbelt, and in the past year this court has given several public warnings which have been published in the press that offenders would be severely punished. I have no doubt that I would be failing in my public duty were I not to impose severe sentences.' In my view these observa�ons were fully jus�fied, and I would dismiss these appeals. [Note - Case to be remited to the High Court for formal confirma�on of sentences - see Criminal Procedure Code (Cap. 7), s. 8 (1) ]. Appeals dismissed Judgment Dennison J: I agree. Judgment Charles J: I agree. 1965 ZR p13