Stephen James Hardy v The People (Appeal No. 1 of 1971) [1971] ZMHC 19 (29 January 1971)

STEPHEN JAMES HARDY v THE PEOPLE (1971) ZR 64 (HC) HIGH COURT BARON J 29TH JANUARY 1971 (Appeal No. 1 of 1971 ) Flynote I Criminal 10law and procedure - Appeal - Sentence - Powers of appellate court to interfere. Criminal law and procedure - Appeal - Sentence - Misdirection - No injustice - Court will not interfere. Criminal law and procedure - Appeal - Sentence - Several offences - Whole 15 course of conduct. ■ Headnote The appellant was charged in the Subordinate Court of the First Class with five counts of theft by public servant contrary to ss. 243 and 248 of the Penal Code. He pleaded guilty to all counts and asked that three similar offences be taken into consideration. He was sentenced to six 20 months' imprisonment on each count, to run consecutively, that is, a total of two and a half years. He appealed against sentence. Held: ■ (i) Even if it could be said that the magistrate erred in his assessment of the appellant's position, there was not such an error as to 25 entitle an appellate court to interfere; the ■ appellate court will not interfere unless the sentence is manifestly excessive or wrong in principle. (ii) The appellate court will not interfere with the sentence if the magistrate was influenced by proper considerations in arriving 30 at the sentence even if there was some misdirection from which no injustice resulted. ■ (iii) It is not the correct approach simply to add together the sentences for the individual offences regarded individually; the court must look at the whole course of conduct and impose a 35 sentence commensurate with that. ■ H Reilly, Jaques & Partners, for the appellant. B R Sharma, Assistant Parliamentary Draftsman, for the respondent. Judgment Baron J: The appellant was charged in the Subordinate Court of the First Class for the Lusaka District with five counts of theft by public 40 servant contrary to ss. 243 and 248 of the Penal Code. He pleaded guilty on all counts, was duly found guilty, and asked that three similar offences be taken into consideration; he was sentenced to six months' imprisonment with hard labour on each count, to run consecutively. He appeals against sentence only. ■ 1971 ZR p65 I BARON J The facts, very shortly, are these. The appellant, a man aged 48, had been in the United Kingdom Civil Service for about thirty years. In 1967 he was seconded to the service of the Government of the Republic of Zambia, and was employed as an accountant in the Lusaka Post Office Savings Department. One of his duties was to uncover flaws in the 5 computer system, and he did in fact discover a method whereby unclaimed money, deposited in their lifetimes by persons since deceased, could be stolen with little risk of detection. On the 31st August, 1967, the appellant put his method to the test and stole three amounts totalling approximately K800; these are the 10 three offences he asked to have taken into consideration. The record does not show the precise date on which the appellant took up his duties in Zambia, but obviously these offences were committed within, at most, eight months of his arrival in this country. The offences in respect of which the appellant was charged were committed between the 9th 15 October, 1969, and the 1st July, 1970, the amounts involved totalling approximately K2,000. ■ ■ ■ Mr Reilly advanced three grounds of appeal: (1) that the magistrate erred in stating that the accused was in a special position of responsibility and trust; (2) that the magistrate misdirected himself in his interpretation of the evidence before him; (3) that the sentence was excessive in the circumstances. In support of the first ground, Mr. Reilly submitted that the magistrate's remarks were a mis-statement of the position amounting to a misdirection because the appellant was in no different position from any 25 other public servant, and therefore no special trust was breached. The learned magistrate said: "On secondment from the U. K. the accused was in a special position of responsibility, trust and accountability, and was, no doubt, expected to set an example to others." I do not think this is a mis-statement of the position; where a very experienced civil servant 30 from the United Kingdom Civil Service comes to Zambia to help because our Civil Service cannot meet the demand, then it is fair to say that such a man is expected to set an example by virtue of his long experience, and one of the ways he is expected to set an example is in the integrity of his conduct. But even if it could be said that the learned magistrate erred in 35 his ■ assessment of the appellant's position, this is not such an error as entitles this court to interfere. It is not the function of an appellate court to make minor adjustments in sentence; nor will the sentence passed by the trial court be altered merely because the appellate court thinks it might have passed a different one. The appellate court will not interfere 40 unless the sentence is manifestly excessive or wrong in principle - Halsbury's Laws of England, 3rd Ed., Vol. 10, para. 995. I see no error of principle here. The second ground of appeal relates to a passage in which the learned magistrate stated that "there is little doubt that the accused resumed his 45 dishonest conduct upon realising that his earlier crimes in 1967 had not been detected, in the belief that he would not be found out". Mr Reilly ■ ■ ■ 1971 ZR p66 I ■ BARON J submitted that this was a mis-interpretation of the evidence; he said there was nothing on the record to support such an inference. I think there is some substance in this argument; I do not think it is the correct inference from the lapse of two years, and it is certainly not a necessary inference, 5 that the appellant waited to see whether his earlier offences would be discovered. On the other hand, it is not certain that this is what the magistrate meant; but if the magistrate meant no more than that the accused would not have resumed his dishonest conduct if he had not believed that his earlier conduct had gone undetected and that his later 10 conduct would equally not be found out, it would seem unnecessary to state something so self - evident. Assuming, then, in the appellant's favour that the learned magistrate held that the appellant had waited to see what would happen before resuming his operations, I agree that this is a misdirection. I do not, 15 however, regard it as such a misdirection as will entitle an appellate court to interfere; on reading the judgment as a whole it seems to me that the magistrate was influenced in arriving at the sentence by a number of proper considerations, and there is nothing to suggest that the passage quoted above influenced the mind of the magistrate so as to have a material 20 effect on the sentence. The magistrate had regard (to use his own words) to "the intrinsic gravity and insidious character" of the offence, and to "the shocking extent" to which it is prevalent in Zambia; he had regard also to the extenuating circumstances which he outlined. Although, therefore, I hold that there was a misdirection, I am satisfied 25 that no injustice resulted from it. In support of his third ground of appeal Mr Reilly cited the following commentary from the Criminal Law Review, October, 1970, at para. 593: ■ ■ ■ ■ "As a general rule, consecutive sentences even though imposed for quite separate offences should not be added together to produce 30 an aggregate sentence which is totally out of proportion to the gravity of the individual offences, or the most serious of them. A court is entitled to reduce what would be the logical total sentence if a strictly mechanical approach were followed, if this is necessary to produce a reasonable result." 35 ■ This clearly does not mean that one looks at the most serious of a number of offences and imposes only such sentence as would be appropriate to that offence; if this were so the effect would be that the other offences would be ignored. This passage simply means that if, for example, a man is convicted of fifteen offences an appropriate sentence for ■ each of 40 which, regarded individually, would have been one year's imprisonment, it would be wrong to sentence him to a total of fifteen years' imprisonment unless the total course of behaviour warrants such a sentence. I accept the validity of this proposition. It is not the correct approach simply to add together the sentences for the individual offences regarded 45 individually; the court must look at the total course of behaviour and impose a sentence commensurate with that course of behaviour. ■ 1971 ZR p67 I ■ BARON J It seems to me that the learned magistrate must have taken these principles into account. Had this been a single offence involving K500, and having regard to all the factors to which reference has already been made, I venture to think that an appropriate sentence would have been more than six months' imprisonment with hard labour. However, this is not 5 the real consideration; the questions are whether the magistrate viewed the whole course of conduct, and whether a total of two and half years' imprisonment with hard labour is a manifestly excessive sentence in respect thereof. I am satisfied on reading his judgment that the magistrate did consider the whole course of conduct; and the sentence does not strike 10 me with a sense of shock. It follows that the appeal must be dismissed. A point emerges from this record to which it is necessary to draw attention. The appellant asked that the three offences committed in 1967 be taken into consideration, and the learned magistrate referred to them in his judgment and included them in his computation of the statutory judgment. 15 He did not, however, refer to them in passing ■ sentence. Now it is true that when other offences are taken into consideration this does not amount to a conviction, and in theory the accused could be charged in respect of those offences and could not plead autrefois convict - see Archbold 36th Ed. para. 616. In practise, however, it is difficult to imagine this happening. Furthermore, the accused is liable to a heavier sentence on account of the other offences. It is important therefore that the judgment should state in terms (if this is the case) that other offences have been taken into consideration, and it is particularly important in cases where no question of a statutory judgment arises, since there would then be 25 nothing on the record from which the magistrate's decision could be inferred; while frequently (as in the present case) the other offences are so similar in character that no question arises as to whether it is competent to take them into consideration, there will obviously be instances where I this is debatable. 30 Appeal dismissed ■