Rex v Kogo (Con. C. 108/1933.) [1933] EACA 23 (1 January 1933)

### CRIMINAL CONFIRMATION.

## Before THOMAS, J., and GAMBLE, Ag. J.

### REX

#### v.

## MALAKWEN ARAP KOGO

# Con. C. 108/1933.

Principles which ought to guide Court in determining proper sentence: (1) Intrinsic value of the subject-matter. (2) Antecedents of the accused. (3) Youth of the accused. (4) Conduct of the accused at the trial, particularly with regard to his plea. (5) Prevalence of the particular crime in the neighbourhood.

### Held (25-3-33). That the sentence was excessive having regard to the offence charged and proved. Sentence reduced.

A. D. A. MacGregor, K. C., Attorney General, for Crown.

Accused absent, unrepresented.

On the 23rd February, 1983, the accused was charged in the second class subordinate court at Kapsabet with the offence of stock theft. Evidence was given that on that same day the complainant, Ngetich arap Birigen, found that one of his goats with its kid had left his *boma*. The complainant went in search of the missing animals, and eventually found the accused holding them and driving them away. When asked what he wanted with the complainant's property, the accused said he was looking for some goats, and ran away. He was eventually caught. The value of the goat and its kid, according to the complainant, was Sh. 3.

On being charged with the offence, the accused replied that he had nothing to say; that he stole the goats, and that he could not deny it when found with them.

On the evidence of the complainant, and on accused's plea, the magistrate found the accused guilty. In sentencing the accused, the magistrate remarked that the Nandi tribe are given to stock theft, and expressed his view that a heavy punishment was necessary to act as a real deterrent to others contemplating this offence. He sentenced the accused to two years' imprisonment with hard labour and to a fine of Sh. 30, and in default of payment of the fine to a further period of three months' imprisonment with hard labour.

The case came before a Judge of the Supreme Court under the provisions of section 11 of the Criminal Procedure Code, and he directed that it be set down for hearing before two Judges in. open Court on the question of sentence.

The matter was heard in the Supreme Court, and the follow-<sup>1</sup>/<sub>2</sub> is a transcript of the shorthand notes:—

Attorney General.-The accused in this case pleaded guilty to the theft of a goat and its kid, which the Court below valued at Sh. 3. So far as the record discloses, there is nothing known against the accused, and the learned Magistrate sentenced him for that first offence to two years' imprisonment with hard labour and under the Stock and Produce Theft Ordinance to a fine of Sh. 30, or a further three months with hard labour.

I propose, with Your Honours' indulgence, to draw the attention of the Court firstly to the principles which have been laid down that will justify a Court in interfering with sentence. Your Honours will find these principles set out in the case of Nuttall, in Vol. I of the Criminal Appeal Reports at page 180, where Mr. Justice Channell, in delivering the judgment of the Court, said: "These cases of reduction of sentences give some little trouble. When there is a trial the judge who presides at it and has the advantage of personal observation has a better opportunity of determining the sentence. This Court will then be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges. The Lord Chief Justice has laid this canon down." These principles, Your Honours, were enunciated very early in the year 1908 in the life of the Court of Criminal Appeal, and they have been consistently adhered to. That being the canon, what then are the principles which ought to guide a trial Court in determining the proper sentence in any one case? I suggest to Your Honours that they are five in number, of which principles only three, and in moderate degree a fourth, affect this particular case.

The first proposition I have to make is that the principles are: the intrinsic value of the subject-matter; secondly, the antecedents of the accused; thirdly, the youth of the accused (though that does not apply, so far as we are aware, in this case); fourthly, the conduct of the accused at the trial, particularly in regard to whether he pleaded guilty or not guilty; and fifthly and lastly, the prevalence of the particular crime in question in the neighbourhood.

On the first point, Your Honours, the importance of bearing in mind in every case the intrinsic value of the subject-matter. I would refer Your Honours first to the case of Gilligan, which is reported in Vol. 15 of the Criminal Appeal Reports at p. 46 (1920 case). The appellant in that case was convicted at the Cheshire Sessions of larceny and sentenced to five years' penal servitude. Mr. Justice Sankey, as he then was, in delivering the judgment of the Court said as follows: "The appellant was convicted of stealing clothing from outside a shop. He was jointly indicted with a man named Jackson, and both were found guilty. His companion, Jackson, was sentenced to six months' hard labour. The reason for the difference in the sentences was that Gilligan had a very bad record. It is perfectly true that he has had two terms of penal servitude, the last in 1913, when he was sentenced to three years' penal servitude for stealing an overcoat. After he came out he went into the army, and served there for three years. We have come to the conclusion that the difference in the sentences passed on these two men was too great, notwithstanding appellant's previous bad record. Bearing in mind that his present offence was of a minor character, we reduce his sentence to twelve months' imprisonment with hard labour."

In the same volume, at page 54, there is reported the case of Hartley, where the note is: "The Court reduced the sentence to six months' imprisonment with hard labour in view of the youth of appellant (he being twenty-one years of age) and of the trivial nature of the offence (though he had been convicted previously three times for small larcenies).

As Your Honours will see, it is quite impossible to divorce the first ground from the others. That is a case of bad antecedents and yet a substantial reduction based on the trivial nature of the offence.

In Vol. 19, at page 177, I would refer Your Honours to the case of Williams. The offence there was obtaining goods by false pretences, and the sentence five years' penal servitude and three years' police supervision. There were three separate counts of. obtaining money, food and lodging by false pretences, and the Lord Chief Justice said, in delivering judgment: "The sums of money concerned were very small, and we think that this sentence calls for revision. The appellant, although he is only thirtyone years of age, has a record, between 1912 and 1926, of many terms of imprisonment and two terms of penal servitude." Again, bad previous record, Your Honours. "Looking at all the circumstances of the case, we think that the right course is to reduce this sentence to one of fifteen months' imprisonment with hard labour."

My next authority, Your Honours, is the case of Boreham, in Vol. 20, at page 182. The note there reads: "The Court, having regard to the smallness of the sum obtained, and especially to the appellant's youth (he being twenty-two), reduced the term. to twelve months." That was from twenty-one months.

In Woodward, in Vol. 21, at page 137, the Lord Chief Justice says: "The total value of the goods and money obtained as the result of the two offences charged in the indictment, and of four other offences which were taken into consideration, was $£5/0/6$ . The appellant has been previously convicted six times, although he is only thirty-one years of age, and has still a remanet of a sentence of three years' penal servitude to serve.

This Court has said again and again, and now repeats, that in passing sentence regard must be had to the intrinsic nature of the offence proved. It is entirely wrong to send a man to a long term of imprisonment or penal servitude merely because he has received heavy punishment at some other time for some other offence. The sentence in that case was reduced from five years' penal servitude to nine months' imprisonment. I would draw particular attention, Your Honours, to the Lord Chief Justice's<br>statement there: "It is entirely wrong to send a man to a long term of imprisonment or penal servitude merely because he has received heavy punishment before." At a later stage of my argument, I am going to submit to the Court that that applies equally to cases where the intrinsic value of the subject-matter being essentially small a deterrent sentence is imposed, not because of the antecedents of the accused, but because an alleged prevalence of one particular crime in the neighbourhood. The main guiding criterion throughout is the value of the subject-matter.

In the same volume, at page 143, there is a very parallel case—that of Wallace. The value of the goods stolen in this case was only £4/15/0. "Looking at all the circumstances of the case, including the value of the stolen property, we think that a sentence of three years' penal servitude is excessive, and we reduce it to one of twelve months' imprisonment.

In the next volume, Your Honours, Vol. 22, I would refer to the case of Williams, reported on page 78. A case of larceny, with a very bad record from the year 1913 onwards. This case is in 1930. The subject-matter again of small value. The offence. considered in itself, involved property of a small amount. The Lord Chief Justice, in delivering judgment, refers to a doubt in the mind of the judge (Mr. Justice Roche was the trial judge) as to whether he should pass a sentence of penal servitude. "That doubt was due to the view which this Court has again and again expressed, that the sentence passed ought to bear some relation to the intrinsic gravity of the crime, notwithstanding the fact that the offender may have previously committed other and more<br>serious crimes." In that case, the sentence was reduced from three years to twelve months.

On the following page 79 of the same volume I refer to the case of *Edwards*: The charge was larceny in a dwelling-house. Sentence, five years' penal servitude. The Lord Chief Justice says: "Regard being had to the nature of these offences and the history of this appellant, we think that the sentence may properly be reduced to a sentence of three years' penal servitude." That, I submit, is an extreme case, where many other cases were taken into account in assessing sentence and there was an extremely bad record of offences of dishonesty. None the less, in view of the intrinsic value of the subject-matter, the sentence was substantially reduced.

Coming now, Your Honours, to the last volume, No. 23 of the Criminal Appeal Reports. I refer, first, to the case of Bruy on page 30-obtaining money and food by false pretences and also obtaining credit by false pretences—sentence three years, and nineteen previous convictions for larceny. The judgment reads: " It is quite true that he has been convicted many times before, but always of comparatively minor offences, and as we have said in this Court more than once, in determining the sentence regard ought to be had to the intrinsic nature of the offence itself. We have come to the conclusion that, in the circumstances, this sentence of three years' penal servitude is excessive, and we think that it ought to be reduced to a sentence of twelve months' imprisonment with hard labour, to run from the date of conviction."

In the same volume, I refer Your Honours to the case of Jones, on page 69, where the head note is: "Sentence mitigated, despite a very bad 'record', in view of the trifling nature of the offence." The offence was office-breaking and larceny. It actually amounted to breaking into the booking-office at a railway station and stealing a swiss roll and two pork pies, the pork pies doubtless taking the place of the kid in the present case. "Having regard to the magnitude of the offence itself," reduced from five years to eighteen months.

Those, Your Honours, are the authorities on which I rely for my first proposition that the nature of the offence itself must be the first criterion in arriving at the adequacy of sentence.

My second point was the antecedents of the defendant. In the present case, there is nothing recorded against the accused, and I think that I have perhaps already cited enough cases to indicate that even where there is an extremely bad record involved, the Court tends towards leniency in the direction of reduction of sentence where the offence itself is of a trivial nature. It further authority is required. I refer Your Honours to Vol. 16, at page 181, where two cases are reported—the case of Lee and the case of Yules. The Lord Chief Justice, in the case of Lee, says: "It is not right to reduce sentences without some clear and substantial reason. There have been many previous convictions of this man, but he has not been convicted of any serious offence for a considerable number of years." The sentence in that case was reduced from three years' penal servitude to twelve months. In the Yules case, the facts were on all fours with Lee's case, and the Court, repeating its remarks, took the same course.

In Vol. 18 there is a case of Maxwell, at page 18; two offences-many previous convictions: "It is a difficult question whether a man of bad character should be sentenced solely with reference to the substantive offence with which he is charged, or

whether his previous convictions should always be considered. But at any rate it is clear that a heavy sentence should not be passed for a minor offence merely because the prisoner has previously committed serious offences." The sentence was reduced from five years to twelve months. Again I would ask Your Honours to translate those words into an estimation of the facts of the case which the Court is considering, and to say that it is equally true that a heavy sentence for a minor offence should not be passed on a man with no previous conviction and a man who pleads guilty to the offence, merely because the offence is alleged to be unduly prevalent in the neighbourhood.

The last case on this is that of *Bennewith*, reported in Vol. 21 at page 157. This is a case which is coming, I think Your Honours will agree, a little nearer to the particular facts of this case. A-case of an offence which is alleged to be, unfortunately, extremely prevalent in England nowadays-garage-breaking, stealing of cars, and going out with housebreaking implements in the stolen cars. Convicted of that offence, and sentenced to four years, at the Central Criminal Court. Only one previous conviction. The judgment in the case reads: "The appellant was charged with two others, one of whom was acquitted. It appeared that the appellant and his associates used a stolen car, of which the number had been changed and the body repainted, to carry away stolen property from the premises into which they had broken and entered. At the garage where the car was kept were found housebreaking implements and a number of labels, etc., which identified them with various shop-breaking offences. The record showed that the appellant had been bound over in January, 1926, for shop-breaking, and that later in the same year he had been sentenced to six months' imprisonment for obtaining by false pretences and breach of his recognizances. Since that time he had not been charged. Appellant must understand that these offences were of a grave character and were unhappily very prevalent. This would be the last occasion on which he would receive leniency, but owing to his age (thirty-two) and his record, the Court would substitute a sentence of eighteen months' hard labour, to run from the date of sentence."

On my third suggested principle I do not propose to make further inroads on Your Honours' time; that is, the youth of the offender. And in this present case, as Your Honours see, there is no evidence of the age of the convicted man; nor do I propose on the question of a plea of guilty to do more than refer Your Honours again to the case which I cited in Volume 1, where Mr. Justice Channell, proceeding to deliver judgment, says that the remark does not altogether apply (that is, the principle on which the Court should act in reducting sentence) when a prisoner

pleads guilty, though even in that case there may be some especial consideration, such as local circumstances. That, I submit, indicates that where an accused person comes before the Court and makes a clean breast of it, that is a matter which ought properly to be taken into consideration.

I would now like to refer to one or two cases where sentences were deliberately made severe because of the prevalence of the particular form of crime in the neighbourhood.

The first is *Warner*, reported in Vol. 2 of the Criminal Appeal Reports, at page 177. Two offences of housebreaking; sentence, three-and-a-half years on each to run consecutively. In that case, counsel for the Crown said: "Appellant was sentenced on two indictments to three-and-a-half years' penal servitude in respect of each, to run consecutively. He had seven previous convictions. The sentence, though severe, was in accordance with a rule laid down years ago by Sir Ralph Littler, of punishing with exceptional severity housebreaking in Middlesex, inasmuch as the small householders there, from the unavoidable insufficiency of police, can only be protected from London housebreakers by deterrent sentences, and experience had proved that the rule was efficacious." In delivering judgment, Mr. Justice Channell said: "We think that we cannot interfere with the sentence; it is doubtless a severe one, and might possibly have been passed in a better form. We hope that the division of the sentence will not deprive the appellant of the advantage of 'preventive detention' under the Home Secretary's order. That only applies in cases of sentences of five years and upwards, and though this sentence is in form two sentences of three-and-a-half years each, yet it is virtually one of seven years. There is no principle on which we can reduce this sentence." His Honour there is obviously referring to the two terms of three-and-a-half years as creating difficulties in the way of "preventive detention".

That authority is directly against me, but I hope to satisfy Your Honours that since the date of that judgment, which was 1909-very shortly after the Court of Criminal Appeal had got into the saddle, and perhaps before the learned Judges were feeling quite at their ease-that principle has been very considerably departed from.

I would next refer Your Honours to Vol. 3, Criminal Appeal Reports, at page 63-Sprake. This is the case of a lady who was charged with stealing and receiving six-pennyworth of coal from the Taff Vale Railway Company, and was sentenced to four months' imprisonment, the case being that it was the common practice of the neighbourhood to take the coal, and that boys were day after day taking it, and that the appellant made a practice of selling what they stole. There was nothing else of any sort alleged against her. There had been ninety prosecutions for thefts of this sort at the spot in question within the last three years, and the appellant had been found with a lot of coal in her house. The Court held that the Recorder was entitled to take into consideration that a regular practice of stealing coal had grown up in the district, and might fairly consider that it was time to make an example. The sentence was only four months, and the Court did not interfere, but directed that it should run from the date of conviction. I would particularly draw Your Honours' attention to the fact that the learned Recorder there regarded the offence as so prevalent that it had to be put down firmly, and considered a sentence of four months sufficient.

In Vol. 6 of the Criminal Appeal Reports, Your Honours, 1 would refer you to two cases—Fitzgerald, at page 99, and Richmond, at page 204.

Here, Sirs, we again come back to housebreaking in Middlesex, which was always regarded as a very serious offence on account of its frequency in the district, and consequently a heavier sentence is imposed than might otherwise be the case. The Court, in delivering judgment in the Fitzgerald case, said: "In this case appellant is appealing against a sentence of twelve months' imprisonment with hard labour passed upon him at the Middlesex Sessions. It is his first offence, and the sentence is a severe one, and we have been told by Mr. Lawless for the Crown, and also by the learned Chairman who presided there, that housebreaking is a very serious offence in the neighbourhood, and that a great many such crimes are committed there. No doubt that was the reason why so heavy a sentence was given, and perhaps another consideration may have been that the appellant, who is a young person, is said to be medically unfit for detention in a Borstal institution. We have taken all these matters into consideration, but on the whole, we think the term of twelve months is too severe. The sentence will therefore be reduced to six months' imprisonment with hard labour, to run from the date of conviction."

That, so far as I have been able to ascertain, was the deathknell of the doctrine of Sir Ralph Littler in respect of housebreaking. It happened only two years after the same Court had seen fit to uphold a sentence of seven years for the same offence.

Richmond, in the same volume, at page 204, Your Honours. The offence was larceny from a van in Bradford, and the appellant was sentenced to eighteen months with hard labour. The judgment of the Court of Criminal Appeal reads: "The sentence appears to the Court to be somewhat severe. There is no previous sentence, except for a very short term of imprisonment, and we think this sentence should be reduced to twelve months' imprisonment with hard labour, to run from the date of conviction.

At page 289 of the same volume, Your Honours, there is the case of Conlon and Richardson. I cite that case merely because I conceive it to be my duty to put the Court in possession of all the authorities. This is a case where the appellants had been convicted of robbery with violence, and sentenced to imprisonment and the "cat", and appealed against that part of their sentence. The Lord Chief Justice dismissed the appeal in these words: "Having been convicted of robbery with violence, they are anxious, as such men generally are, to prevent any violence being done to themselves."

That, I submit, Your Honours, is quite distinguishable throughout the reported cases, with the exception of the Sir Ralph Littler case. I think Your Honours will be satisfied that the principle underlying the reduction of sentence is this: Where the offence is an offence against property, the material matter is the intrinsic value of the subject matter of the charge; but where the offence is against the person, the Court is extremely reluctant to reduce sentences. That last case was essentially a case of robbery with violence to the person.

In Vol. 7, I would refer Your Honours to Green, reported at page 225. The head-note is: "Severity of sentence may be determined by the prevalence of a particular form of crime in a particular neighbourhood." This is a Birmingham case, and the offence was the use of the knife by gangs of young men. The application for reduction of sentence was dismissed, but I would repeat that that case is a case against the person, where, in my submission, the Court has applied entirely different principles, and applied them consistently in the interests of the safety of the inhabitants of the country.

At page 249 there is the case of Day. This case has application to my argument from two points of view-the prevalence of crime in the neighbourhood, and a sentence against a first offender. The offence was again housebreaking in Middlesex, and the sentence twelve months' imprisonment with hard labour. The Lord Chief Justice says: "In this case the appellant, who had not been previously convicted, was sentenced to twelve months' imprisonment with hard labour for housebreaking. The Chairman, in passing this sentence, may have been actuated by the prevalence of burglaries in the district. The prisoner had a good character, and had done honest work, but he was tempted to break into the house by collusion with a person inside. The sentence was too severe for a first offence of this kind, and the: Court is of opinion that the proper punishment would be six months' imprisonment with hard labour from the date of conviction."

In the case of *Pomfret*, Your Honours, at page 17 of Vol. 18 of the Criminal Appeal Reports, the sentence was three years' penal servitude for larceny in Sheffield. The judgment reads

thus: "This is a case of difficulty. The appellant was convicted with others for stealing from a dray---a class of crime which seems to have been prevalent in Sheffield (and to have ceased to a great extent after the arrest of certain offenders). He has not a good character, and there was ample in his past career to warrant a long sentence. The learned Recorder had himself bound this man over in the hope of reclaiming him. Were it not for the frequency of this offence the sentence would have been lighter. We are in the same dilemma as the learned Recorder was. Every judge acts on the principle of not sending a man to penal servitude when a lighter sentence will act as a sufficient deterrent, but the prevalence of a specific crime in a particular place will and must be considered. In this case, these principles clash somewhat; but, without any disrespect to the learned Recorder, we think we may set aside the penal servitude and reduce the sentence to one of twenty-one months' imprisonment with hard labour."

The case of *Bennewith* I have already referred to, Your Honours, and my last authority is *Edwards*, reported at page 229 of Vol. 5, Criminal Appeal Reports. Lord Coleridge delivered the judgment of the Court, and said: "The offences were of a petty nature." (There were four previous convictions, Your Honours; the sentence in this case was two years' imprisonment.) "The offences were of a petty nature very similar in character to the present offence. This Court has often pointed out that if very severe sentences are imposed for small crimes, it leaves no heavier sentence for graver crimes, and although it seems the appellant made a practice of stealing articles from shops, we think the sentence of two years' imprisonment with hard labour is too heavy. The sentence will therefore be reduced to one of twelve months' imprisonment with hard labour."

It does not require any great mathematician, I suggest, to arrive at the conclusion that when the learned Magistrate who tried this case is faced with the theft of six goats, he will be in something of a dilemma if one goat merits two years' imprisonment; it is a matter of simple arithmetic to arrive at the point where he exhausts his jurisdiction altogether.

I do suggest that the principles which have been laid down by the Court of Criminal Appeal for the guidance of police courts in matters such as these are clear, that essentially the important aspect is the intrinsic value of the subject-matter of the charge, and without for a moment belittling the prevalence of the offence of stock theft in this particular neighbourhood, without in any sense minimizing or attempting to minimize the necessity for putting down that form of crime by deterrent sentences, I do confidently submit that the sentence in this case, having regard to all the circumstances, is unduly severe.

Mr. Justice Thomas.—There are two arguments which might possibly be used, and the one is that the magistrates are dealing with uncivilized people, and the second is that these are unsettled districts. I do not know whether you wish to say anything on those heads.

The Attorney General.—We are, of course, throughout the country dealing with backward people, but, Sir, if very heavy sentences are necessary to deal with people such as these then I suggest that the legislature has been woefully lacking in fixing the maximum sentences. The maximum for larceny in this Colony is three years, as in Great Britain; and I do suggest that two years is just as long a time in the life of an illiterate African as it is in the life of anyone else. There is little if any stigma attaching to imprisonment in this Colony. To that extent, the punishment of imprisonment is a very much milder one than in a civilized country with a high ethical standard of morals. But two years is still twenty-four months; it is not a sentence which ought lightly to be imposed.

The other point which Your Honour has made is more important. It is, I imagine, almost a matter of judicial knowledge that the Nandi, in common with other tribes—the Lumbwa, and, to a certain extent, the Masai-are extremely addicted to stock theft. But here we hardly have stock theft in its ordinary acceptance. We have the most open and unabashed and perfectly honeless case of trying to take away one goat, which was followed doubtless by its kid, from a fellow Nandi. The gravity of the offence alone lies in its tendency to promote retaliation from a neighbouring tribe or from neighbours of other races. The accused quite openly went up and put a rope round the goat's neck and started to walk it away. Whether there was any theft of the kid or not, or whether the kid merely conceived a sudden affection for the accused and followed him, I don't think it necessary to argue; but the whole offence was a perfectly futile attempt to make himself possessor of another's goat. If this had been a case of a Nandi or more than one crossing the boundary and raiding the cattle of another tribe, then it would be much more serious. Even if that had been done, even if it had been a case of running off a whole lot of cattle in circumstances which might have evoked bloodshed, the magistrate could not have given a very much more severe sentence.

Mr. Gamble, Acting Judge.—The magistrate appears to have thought that because the theft was inside the tribe it was worse than outside.

The Attorney General.—The graveness of the sentence is on its tendency to prevent disturbances, Your Honour, and in a case like this it could not. I fully appreciate the importance of the two points put to me. I do quite seriously and quite confidently

submit that in this case they have not the same application that they have in many cases of stock theft in this and other comparable areas of the Colony. It is a very minor offence indeed in this particular case, and I do suggest that the sentence is quite disproportionate to the gravity of the offence committed.

$Mr.$ Justice Thomas.—My reason for asking those questions, Mr. Attorney, is that a shorthand note is being taken of your arguments, and I have no doubt that your arguments will be read with the greatest interest by almost every administrative and judicial officer throughout the Colony, and I thought that it might be said: "Oh, the Attorney General did not deal with these points," and naturally you did not, because they are not included in the case, but they might think, "Oh, yes; but because they were not included they were of no importance, or that they were considered as being of no importance." Therefore, I thought I would just mention those two matters. Of course, there may be others that have not occurred to me.

The Attorney General.-I am very grateful to Your Honour for giving me the opportunity.

Mr. Justice Thomas.—My brother and I are in complete accord that the sentence would require revision, but we would rather, according to the practice of the Court, give a written judgment.

The Attorney General.—As Your Honour pleases. The accused is serving a sentence quite properly, and the few days' delay will not affect him ultimately, Your Honour.

Mr. Justice Thomas.—I think you will agree that it is a case in which some sentence should be passed.

The Attorney General.-I do hope you do not think I am attempting to argue away the offence; but it is merely the quantum of sentence.

On the 25th March, 1933, an Order in Confirmation was delivered in the following terms: -

ORDER.-The Court is indebted to the Honourable the Attorney General for his able and interesting argument, and accepts it as an exact statement of the guiding principles for the punishment of offences. The Court wishes to emphasize that statement. and therefore refrains from adding anything. At the same time, it is necessary, in order to avoid possible error, to mention that when the Honourable the Attorney General referred to the punishment of three years for larceny he was referring to what is generally known as common larceny only, and was not including other offences of larceny in respect of which a higher term of imprisonment is provided by the Penal Code.

The Court hopes that the argument will be printed and widely circulated amongst all judicial officers, and that they will read, mark learn and inwardly digest the principles therein enunciated.

The accused was convicted of stealing a goat and a kid from a member of his own tribe, and sentenced to two years' hard labour, and a fine of thirty shillings or in default of payment to a further three months' imprisonment with hard labour.

There was a statement that the accused when he was caught tried to hit the complainant with a rungu. There was no separate charge for assault, and in view of the possibility of force having been used in catching the accused and that the attempt to strike was not successful, we do not consider that this matter should be considered in passing sentence.

In the opinion of the Court the sentence passed was excessive having regard to the offence charged and proved.

The sentence of two years' imprisonment with hard labour will be reduced to a sentence of four months' imprisonment with hard labour to date from the date of the conviction.

The alternative of three months' imprisonment with hard labour in default of payment of the fine of thirty shillings is reduced to one month's imprisonment with hard labour.

The conviction is confirmed.