Hassani Mirambo v. R., Crim. App. 476-D-68, 4/10/68, Bion J.

Hassani Mirambo v. R., Crim. App. 476-D-68, 4/10/68, Bion J.

Accused was convicted of attempting to steal from a motor vehicle, on evidence which established that he pushed a sorewdriver through the ventilation window of a parked motor car. As a result, the car was slightly scratched, but the accused did not gain entry. Since nothing was actually taken, the magistrate conceded that the offence was “of a minor nature” He said, however, that the accused ’s previous record of four convictions “shows that he would have stolen from the car had he not been apprehended in time,” and he therefore sentenced the accused to 12 months in prison.

            Held: (1) The attempted theft conviction is clearly based on the accused ’s intention to steal as revealed, not by his acts in the incident being considered, but by his previous record. Since prior convictions may be considered in sentencing, but not in determining guilt of the offence charged, the conviction cannot be sustained. (2) The facts as proven might support a charge of causing malicious damage. However, a conviction for that offence cannot be substituted under s. 319, Criminal Procedure Code; that section gives an appellate tribunal a wide discretion as to varying a conviction (but) it does not … give an unlimited and unbounded discretion to vary a conviction found to any other which the court may consider is supported by the evidence. The power to vary a conviction is governed by, and corresponds with, the power the convicting court had, that is, in convicting for an offence other than that with which the accused before it is charged. The powers of returning a conviction for an offence other than that charged are expressly laid down in sections 181 to 188 of the Criminal Procedure Code, which certainly fo not embrace a power to substitute a conviction for causing malicious damage for one of attempting to steal, the offences not even being cognate.”