Solomon Chilimba v The People (Appeal No. 86 of 1971) [1971] ZMCA 10 (14 December 1971)

SOLOMON CHILIMBA v THE PEOPLE (1971) ZR 36 (CA) COURT OF APPEAL DOYLE CJ, BARON JP AND GARDNER JA 14TH DECEMBER 1971 I (Appeal 15 No. 86 of 1971) Flynote Evidence - Uncorroborated confession. Sentence - First offender - Award of more than minimum statutory sentence - When proper. Headnote The appellant was convicted of stock theft on his own confession. His 20 confession was uncorroborated but the trial judge considered that point and he considered from the nature of the confession and its details that it could be relied upon. The trial judge passed a sentence of eight years and ten strokes. The minimum sentence for the offence I was seven years and ten strokes. 25 Held: ■ (i) When the trial court has considered that the confession of the accused was uncorroborated but came to the conclusion from the nature of the confession that it could be relied upon, the appellate court would not interfere even though it might be that 30 individual members of the court might, on the facts, have come to a different decision. ■ (ii) Unless the case has some extraordinary features which aggravate the seriousness of the offence, a first offender ought to receive the minimum sentence. Such a feature in cases of stock theft might 35 be an unusually large number of animals stolen, or facts which ■ point to a well - planned rustling operation. G M Sheikh, Senior Legal Aid Counsel, for the appellant. S C Heron, Assistant Senior State Advocate, for the respondent. Judgment Doyle CJ: delivered the judgment of the court: In this case the 40 appellant was convicted of stock theft on his own confession. His confession was uncorroborated but the learned trial judge considered that point and he considered from the nature of the confession and its details that it could be relied upon. Having come to that conclusion he was perfectly entitled to convict the accused. This court cannot interfere even 45 though it might be that individual members of the court might, on the facts, have come to a different decision. ■ ■ 1971 ZR p37 I DOYLE CJ On the question of sentence the accused was a first offender. He stole four oxen. For that he was given a sentence of eight years and ten strokes. The minimum sentence for this offence is seven years and ten strokes. The learned trial judge does not say why he imposed more than the minimum but presumably it was because he stole not one but four cattle. 5 In our view it is not a safe way to approach sentence, by multiplying the sentence in relation to the beasts stolen. No doubt in a sense it is more serious to steal four beasts than one beast, but the sentence of eight years and ten strokes is very severe for a first offender. Clearly the court must carry out the duty placed upon us by the legislature. In more serious 10 offences one can impose a sentence higher than the minimum but equally clearly this severe mandatory sentence must cover a broad spectrum of offences which would include most first offenders. In our view unless the case has some extraordinary feature enlarging the seriousness a first offender ought to receive the minimum. Such a feature might 15 be an unusually large number of animals stolen or facts which point to a well planned rustling operation. This case seems to us a very ordinary first offence. We do not think the fact that there were four head takes it out of this category. We consider the proper sentence which shoud have been imposed on him was the minimum sentence of seven years and ten 20 strokes. We quash the sentence of eight years and ten strokes and impose one of seven years and ten strokes to run from the date of arrest. ■ ■ ■ We do not wish to be thought that we are making any pronouncement in suggesting that because a person has two convictions he must automatically get more than seven years. Each case must be dealt with 25 on its own merits. Sentence substituted ■