R. v. Saidi Abdulla Riyami, Crim. Rev. 13-Z-66, 12/7/67, Saidi Ag. C. J.

R. v. Saidi Abdulla Riyami, Crim. Rev. 13-Z-66, 12/7/67, Saidi Ag. C. J.

The accused was charged in one count with storebreaking and stealing. Upon conviction, he was sentenced to 2 years for storebreaking, and 2 years for stealing, the sentences to run consecutively. The case was heard before 3 magistrates. The accused pleaded to the charge before the first and second magistrates, but the third failed to have him plead before trying the case.

Held: (1) Two sentenced cannot be imposed when a charge contains only one count, notwithstanding the fact that charges of storebreaking and stealing may be, and usually are, set out in two counts. The sentences imposed are set aside, and a single sentence of 2 years’ imprisonment substituted.

            (2) The trial of this case should be considered as nullity because the accused did not plead to the charge before the magistrate who tried his case. (Citing Regina v. Rajab s/o Ramadhani, 2 T.L.R. 49.)However, upon the record as a whole, the conviction stands because “the guilt of the accused …… is so clear and beyond any reasonable doubt that I would be unreasonable to set aside the conviction and order a re-trial due entirely to the technical difficulty arising from the plea.” (See Criminal Procedure Decree Cap. 14, s. 367.)

            (3) Normally, sentences are ordered to be served concurrently where the offences are committed in one transaction, such as storebreaking and stealing, or housebreaking and stealing. Citing Regina v. Kasongo s/o Luhogwa, 2 T.L.R. 4.) “There are however, certain exceptions ….. An example would be the case where there is a housebreaking followed by a rape.” It is generally assumed that the purpose of housebreaking or burglary is to enable the offender to steal from a house. If the offender commits an offence other than stealing, the sentences to be imposed for the respective offences ought to be made to run consecutively.