Lunga Mika v The People (Appeal No. 109 of 1970) [1970] ZMCA 14 (16 December 1970)

LUNGA MIKA v THE PEOPLE (1970) ZR 61 (CA) I COURT OF APPEAL 5 DOYLE CJ, PICKETT JA AND MAGNUS J 16TH DECEMBER 1970 Appeal No. 109 of 1970 Flynote Criminal law and procedure - Appeal - Sentence - Enhancement of - Whether appellate court competent to enhance sentence imposed by 10 lower court. Sentence - Enhancement - Appeal - Whether appellate court competent to enhance sentence imposed by lower court. Headnote The appellant was convicted of burglary and sentenced to three years' imprisonment with hard labour by a Class I magistrate. This was 15 the maximum sentence within the jurisdiction of the magistrate. On appeal, the appellate judge enhanced the sentence to five years' imprisonment with hard labour. Held: ■ ■ (i) On appeal the appellate judge could not give a sentence which 20 was not within the ■ jurisdiction of the magistrate. (ii) Sentence of five years' imprisonment with hard labour quashed and reduced to three years' imprisonment with hard labour. ■ Judgment Doyle CJ: delivered the judgment of the court. In this case the appellant was convicted of burglary by the learned 25 magistrate, Class I, at Lusaka. He was sentenced to imprisonment for three years. On appeal that sentence was increased to five years by the learned appellate judge. Looking at the appellant's record we are quite satisfied that five years was not too much for this offence. If the learned magistrate had 30 decided that he had not sufficient jurisdiction he could have sent the appellant onward for sentence, but he did not. Instead he sentenced the appellant to the maximum which he could give, namely three years' imprisonment with hard labour. The learned appellate judge must have overlooked the fact that a 35 greater sentence was outside the jurisdiction of the magistrate. We do not consider that on appeal the appellate judge could give a sentence which was not within the jurisdiction of the magistrate. Accordingly, we grant this application for leave to appeal against sentence only. We treat the application as the appeal. We quash the sentence of five years' imprisonment with hard labour and reduce the sentence to three years' imprisonment with hard labour. The appellant is a very lucky man. Sentence quashed and substituted 45 ■ ■ ■