Peter Msunovi v. R., Crim. App 260-D-69, 13/6/69, Biron Ag. C. J

Peter Msunovi v. R., Crim. App 260-D-69, 13/6/69, Biron Ag. C. J

Appeal against conviction of robbery with violence c/s 285 and 286 P.C. and sentence. Appellant on seeing complainant enter a tea-room rose up from a bench seized him by the neck, demanded money from him and threw him to the ground. He held him there, put his hand into his pocket and removed Shs. 5/- all the complainant had – which he passed to another man who makes off with it. Appellant was handed over to police by the crowd which had gathered around. The sentencing magistrate said: “The accused is a first offender. The offence is under the mischief of the Minimum Sentences act, 29/63. The value of the amount obtained by the accused is only Shs. 5/-. There are special circumstances as provided by section 5 of the act. I sentence the accused to nine months jail.”

            Held: “In admitting this appeal to hearing, the learned Judge queried – “is the fact that the appellant took only Shs. 5/-a ‘special circumstance”, or should it be viewed as merely Shs. 5/- was all that complainant had in his pocket?”. Apart from the fact that there is a conflict of judicial opinion as to whether the smallness of the amount involved constitutes ‘special circumstance’ in itself, in this case, the fact that he only stole Shs. 5/- does not reflect any moderation on the part of the appellant as he took all the money the complainant had on him; and further still, according to the complainant, the appellant ransacked his pockets searching for more money, whilst he had pinned him down on the ground. There are certainly no special circumstances disclosed from the proceedings.” Case remitted to trial court to allow accused to advance any other special circumstances.