Mpate Jamadini v. R. Crim. App. 621-D-69, 2/10/69, Hamlyn J.

Mpate Jamadini v. R. Crim. App. 621-D-69, 2/10/69, Hamlyn J.

The accused was convicted of offense of burglary and stealing, c/ss 294(1) and 265 of the Penal Code: he was sentenced to two years imprisonment and twenty-four strokes of corporal punishment on the first count and to a concurrent nine months imprisonment on the second count.

            Held: “In so far as sentence is concerned, the accused has admitted a number of similar previous convictions. I observe that  the last of these shows that the appellant was convicted on August, 1967 of offences of burglary and stealing and that he received a total of two year imprisonment and twenty-four strokes of corporal

punishment on that occasion. He can have been out of prison for a very short time before committing the present offences and has apparently learned nothing by his former punishment. During the course of his judgment the District Magistrate makes a somewhat enigmatic remark, for he observes, “It should be borne in mind that some judges have repeatedly said that previous conviction should not be ground for enhancement of sentence”. He proceed “for those reasons” to sentence the accused to two years imprisonment and to twenty-four strokes of corporal punishment, - that is to a punishment exactly similar to the one which the appellant had just completed for a similar offence. Clearly there is something wrong with the magistrate’s line of reasoning. What I think that he has in mind is that a previous conviction not per se a reason for the imposing of a heavier sentence; much must depend on the nature of the previous offence, the length of time which has elapsed since completion of the former punishment and so on. Nor indeed is the previous conviction a mere excuse for the imposing of a heavier sentence upon a convicted man. The proper view of the matter is that the convicted person has forfeited his right to be treated with leniency as a first offender; he is not to be punished a second time for his former offence, but he now appears in a different guise from the one in which he came before the court on the earlier occasion – a person who has adopted an antisocial mode of existence. It is in this light that the matter should be viewed when the question of sentence rises. While this appeal in so far as convictions must be and is hereby rejected summarily, I consider that this man should receive a more deterrent sentence on the burglary count hat which he has suffered at the hands of lower court. I consequently enhance sentence for the offence of burglary to one of three years imprisonment. The sentence of twenty four strokes of corporal punishment will stand as passed by the lower court, as will the sentence of nine months imprisonment on the stealing charge, which will run concurrently with the sentence as enhanced by this court.”