The People v Tenson Chipeta (HNR 233/1970) [1970] ZMHC 14 (22 September 1970)

THE PEOPLE v TENSON CHIPETA (1970) ZR 83 (HC) HIGH COURT 35 CHOMBA AGJ 22nd SEPTEMBER 1970 HNR 233/1970 Flynote Criminal law and procedure - Sentence - Confirmation of sentence imposed by subordinate court - High Court to confirm entire sentence not portion. 40 Sentence - Factors to be taken into account when imposing. Headnote The accused was convicted and sentenced to nine months' imprisonment with hard labour by a Magistrate Class III of the subordinate court. The offence was theft by servant contrary to ss. 243 and 249 of the Penal Code. The accused was a first offender and the amount involved was 45 1970 ZR p84 CHOMBA Ag J K25.50. Since the sentence was nine months and not within his jurisdiction the magistrate ordered that three months of it be confirmed by the High Court. Held: 5 (i) Under s. 8 (5) of the Criminal Procedure Code a Class III trial magistrate of a subordinate court cannot pass sentence in excess of six months' imprisonment without confirmation by the High Court. However the entire sentence and not a portion of it has to be confirmed. (ii) When imposing sentence the court should take into account the intrinsic value of the subject matter, antecedents of the accused, his youth, conduct at the trial particularly with regard to his plea and the prevalence of that particular crime in this neighbourhood. 15 Cases cited: (1) R v Enock Lomba 4 NRLR 226. (2) R v Edward Nsokolo 2 NRLR 85. Legislation referred to: Criminal Procedure Code, 1965 (Cap. 7), s. 8 (5). 20 Penal Code, 1965 (Cap. 6), ss. 243 and 249. Judgment Chomba Ag J: The accused in this case was convicted by the Subordinate Court, Class III, Mansa, of the offence of theft by servant contrary to ss. 243 and 249. He was sentenced to nine months' imprisonment with hard labour and the magistrate ordered that three months of 25 that sentence required confirmation at the High Court. In terms of s. 8 (5) of the Criminal Procedure Code, the trial magistrate, who holds a subordinate court of the third class, could not pass a sentence in excess of six months' imprisonment without such sentence being confirmed by the High Court. The magistrate was, however, 30 wrong in taking the view that only three months of the sentence he imposed was subject to confirmation. The case of R v Enock Lomba (1) is the authority for the proposition that where a magistrate imposes a sentence in excess of his jurisdiction, the entire sentence, and not only that portion in excess of his jurisdiction, requires confirmation by the 35 High Court. Therefore, in the present case, the whole sentence, namely nine months' imprisonment with hard labour required confirmation. The sentence imposed in this case comes to me with sense of shock. In the case of R v Edward Nsokolo (2), the following were given as principles which should guide a court when considering what sentence is 40 to be imposed. They are: (1) intrinsic value of the subject matter; (2) antecedents of the accused (3) youth of the accused; CHOMBA Ag J (4) conduct of the accused at the trial particularly with regard to his plea; (5) prevalence of the particular crime in this neighbourhood. 1970 ZR p85 The value of the property involved in the present offence was K25.50. As to antecedents, it was accepted by the magistrate that the 5 accused was a first offender. I do not consider that principle No. (3) is applicable to the present case because the accused is an adult. As to principle No. (4), the accused made a frank confession at the time of his plea, and lastly there is no information on the case record as to the prevalence of the offence of theft by servant in the Mansa District. In 10 my opinion, had the magistrate directed his mind to the fact that the property involved in this case was worth K25.50 only, that the accused was a first offender, that he made a clean breast of his crime and that there was no information placed before him as to the prevalence of this kind of offence in his area, he might have imposed a less severe 15 sentence than he did in fact impose. I therefore feel that the sentence cannot stand. It is hereby set aside and replaced by one of four months' imprisonment with hard labour backdated to 22nd May, 1970. This means that the accused is entitled to be released forthwith from custody. Order accordingly 20