R. v. Alexander Mabele. Crim. App. 764-D-69, 16/1/70, Georges C.J.

R. v. Alexander Mabele. Crim. App. 764-D-69, 16/1/70, Georges C.J.

The accused was charged (inter alia) with theft by public servant c/ss 270 and 265, Penal Code, of Shs. 77/50. Although the offence is scheduled under the Minimum Sentences Act, the court discharged the accused conditionally, purporting to act under s. 5(2) of the Act.

            Held: “It has been clearly decided by this Court that the discretion granted to a trial magistrate under section 5(2) of the Minimum Sentences act is discretion to impose a term of imprisonment or 10 strokes instead of the minimum penalty prescribed by the Act. A full Court has so ruled. In extraordinarily exceptional circumstances where it is patently obvious that no real punishment should be imposed, the Court has suggested that the way out of the dilemma could be to impose a sentence of 1 day’s imprisonment which would result in the immediate discharge of the convicted person. It must be stressed that the cases where such a course would be proper would be extremely rare indeed. Mr. Kanabar submitted that the trial magistrate was under no obligation to impose a sentence of imprisonment because under s.27 (a) of the Penal Code a person liable to imprisonment may be sentenced to a fine instead of imprisonment. If this section could possibly apply, the Minimum Sentences Act would be made immediately ineffective even as far as convictions in circumstances where no discretion could apply. The argument is bad and has been decisively rejected on more than one occasion.” Order of conditional discharge set aside and a prison term of 9 months substituted, the court finding that special circumstances existed.