Yusuf s/o Issa V. R. Crim. App. 12-D-70; 17-6-70, Makame Ag. J.

Yusuf s/o Issa V. R. Crim. App. 12-D-70; 17-6-70, Makame Ag. J.

Appellant was convicted on two counts of robbery c/ss 285 and 286 of the Penal Code, and sentenced to three years imprisonment on one count and to four years on the other, the sentences to run concurrently, and to twenty-four strokes of corporal punishment. After midnight on 23^rd April, 1969, the appellant terrorized two barmaids after the closing of a bar at Temeke. He assaulted the first causing muscular strain all over her body, and took her sweater and her purse containing Shs. 40/-. Later, he assaulted the second, causing muscular strain stratches, abrasions and contusions to various parts of her body; attempted to have sexual intercourse with her against her wish; told her that he was “the Spear” and that he was not afraid of the police; and took her coat and Shs. 40/-. For the defence it was submitted (a) that the trial magistrate had no power to impose or sentence of more than two and a half years without confirmation by the High Court, (b) that the appellant’s age (22 years) was such that a long term imprisonment in the company of hardened criminals would corrupt him, (c) that this was a first offence, and (d) that the value of the items was small. Appeal on sentence only.

            Held: (1) “The Criminal Procedure Code (Amendment) Act of 1963 notes after the new Seventh Schedule that the old sections 7, 8 and 9 of the Criminal Procedure Code are amended so that, among other things, a subordinate court may pass up to five years for a scheduled offence, but: - “Notwithstanding the provisions of subsection (1) of this section, a sentence of imprisonment for a scheduled offence which exceeds the minimum term of imprisonment prescribed in relation to that offence by sub-section (2) of section 4 of the Minimum Sentences act, 1963, by more than six months ….. etc. (unless it is awarded b a senior resident magistrate) shall not be carried into effect …. Etc. unless the sentence or order has been confirmed by the High Court”. The trial magistrate in he present case was not a senior resident magistrate and the minimum term of imprisonment prescribed for robbery is two years. The maximum term the trial magistrate could impose without confirmation, therefore, was in each case the two years minimum plus six months, that is, two and a half years …. (However), since the matter has now come up on appeal the point would seem academic.” (2) “Whether or not the substantive term of four years in this case is manifestly excessive must depend on the particular circumstances. I confess myself unimpressed by Mr. Kanabar’s submission about the smallness of the value of the items stolen. In my view the more important consideration must be the force used to over-come the resistance the victims put up when they were assaulted. [His Honour then referred to the facts surrounding the robberies]. Behaviour like this has to be discourage, but four years is over-corrective, taking into account the age of the appellant and the fact that he is a fist offender. I leave the sentence of three years on the first count undisturbed, but I reduce the second term of imprisonment by one year.” (3) “The trial magistrate imposed the statutory minimum of twenty four strokes, but, with respect, he erred by attaching it specifically to the second count only. Section 10 of the Corporal Punishment Ordinance, Cap. 17, reads: - “When a person is convicted at one trial of two or more distinct offences, any two or more of which are legally punishable with corporal punishment, only one sentence of corporal punishment may be passed in respect of all the offences”. Therefore I vary the award of corporal punishment so that the appellant shall suffer a total of twenty four strokes in respect of both counts. (4) “The end result is that the substantive term of imprisonment will be three years and the corporal punishment will be the same twenty four stokes”.