The Appellant in this case had been convicted by the Magistrate’s Court in cases numbered C. No 527/12 and C. No. 528/12 on his own plea of guilt to both charges levelled against him in the respective cases. The Appellant had pleaded guilty to all the charges levelled against him in both cases on the 25^th of April 2012. In both cases he was unrepresented.

In case numbered C. No 527/12 he was charged with the following offences:

In case numbered C. No 528/12 he was charged with the following offences:

The facts as narrated by the Prosecutor in both cases were almost identical to the particulars as set out in the two cases. In 527/12 the Appellant in mitigation had said: “I want to work and pay for what I have done. I apologise for what I have done. I have problem at my parents place. What I have done is wrong. I want to live my life. I am 18 years old. I can work to pay for what I have done.”(verbatim)  In 528/12 the Appellant had said that: “I have no more submission to make”.

In case numbered C. No 527/12 the Appellant had been sentenced by the learned Magistrate to 10 years imprisonment in respect of count 1  and 15 months imprisonment in respect of count 2 and in case numbered C. 528/12 sentenced to 8 years imprisonment in respect of count 1  and 18 months imprisonment in respect of count 2. The learned Magistrate had ordered that all the above sentences are to run consecutively. The Appellant had thus ended up with a term of imprisonment of twenty years and nine months. The learned Magistrate had in passing sentence had taken the following facts into consideration: “Therefore in consideration of accused plea of guilty at the first instance and his mitigation and considering his young age and the fact that he is a first offender, I pass on this young accused the minimum mandatory sentence of imprisonment prescribed by the legislation in respect of such offences.” (verbatim)

The recorded proceedings in case numbered 528/12 shows that the “Constitutional rights to legal representation put to accused in creole as per Art.19(2)(d) of the Constitution.” and “Accused is informed of the seriousness of charge and advice to seek legal aid as he will be sent to prison if convicted as there is a minimum mandatory sentence.”(verbatim). Article 19(2) (d) of the Constitution states: “Every person who is charged with an offence has a right to be defended before the court in person, or, at the person’s own expense by a legal practitioner of the person’s own choice, or, where a law so provides, by a legal practitioner provided at public expense.”Although the maximum punishment for housebreaking was ten  years at the time of the commission of the offence, it could not be said that section 27(1)(b) of the Penal Code which provided that “where the offence is punishable with imprisonment for more than eight years but not more than ten years and the person had, within five years prior to the date of the conviction, been convicted of same or similar offence, be sentenced to imprisonment for a period of not less than eight years”; was applicable to the Appellant, as the Appellant had not within five years prior to the date of the conviction, been convicted of a same or similar offence. We are of the view that the learned Magistrate had in imposing a jail term of 8 years in respect of count 1 in case numbered 528/12 had misconstrued section 27(1) (b).  The recorded proceedings also do not indicate that the Appellant was informed of the provisions of section 9 of the Criminal Procedure Code. Section 9 states:

The recorded proceedings in case numbered 527/12 shows that the “Constitutional rights to legal representation put to accused in creole as per Art.19(2)(d) of the Constitution.”(verbatim) The Appellant in this case had not been informed of the seriousness of the charge of burglary which attracted a minimum mandatory term of ten years imprisonment. The Appellant had also not been informed of the provisions of section 9 of the Criminal Procedure Code referred to in paragraph 6 above.

The Appellant who had been sentenced to consecutive terms of imprisonment totaling to a period of twenty years and nine months had not been informed by the learned Magistrate of the mandatory provisions of section 36 of the Penal Code under which he had been sentenced. Section 36 of the Penal Code reads as follows:

All four offences under which the Appellant was convicted in the respective two cases fall under chapters XXVI and XXIX and thus necessarily attracted the proviso to section 36 of the Penal Code.

 The total sentence of 11 years and 3 months imprisonment in case numbered No 527/12 and the total sentence of 9 years and 6 months in case numbered No 528/12 in our view was illegal in the sense that it exceeded the sentencing powers of a Magistrate at the time the said sentences were passed in view of the provisions of section 6(2) of the Criminal Procedure Code. Section 6(2), as at the date the sentences were passed, read as follows:

The Appellant aggrieved by his sentence of twenty years and nine months appealed to the Supreme Court against his sentence on the ground that “The sentence is harsh and excessive having regards to all the circumstances of the case and therefore wrong in principle.” The Supreme Court by its judgment dated 14^th November 2013 varied the sentence of imprisonment of 20 years and 9 months by ordering that the sentences imposed in the cases numbered C 527/12 and 528/12 in respect of the two counts in each of those cases should run concurrently but maintained that the sentences in the two cases should run consecutive to one another. Thus the Appellant was ordered to serve a period of imprisonment of 10 years in respect of C 527/12 and 8 years imprisonment  in respect of C 528/12 adding up to a total of 18 years imprisonment.

The Appellant aggrieved by the judgment of the Supreme Court has now appealed to this Court.

It is pertinent at this stage to examine the provisions of the Criminal Procedure Code in regard to a second appeal. Section 326(1) of the Criminal Procedure Code states as follows:

This provision has to be read subject to articles 19(11) and 120 (1) & (2) of the Constitution.

We therefore go on to consider whether the sentence of 18 years imprisonment imposed on the Appellant who was 18 years old, a first offender and one who had shown remorse in pleading guilty at the first instance and had agreed to pay back the amounts stolen can be justified? In 527/12 the facts as narrated to the Magistrate by the Prosecutor do not disclose how the Appellant broke into the house, whether any implements were used to break into the house, whether any serious damage was caused to the house or property therein, whether any one was injured while committing the said offences or whether any inmates were in the house at the time the offences were committed. The total value of the items stolen is SR 320/-  and consists of a tin of cerelac, a box of Jacker, a packet of corn flakes, a tin of peanuts, and a box containing Rs200/-. For the commission of these two offences the Appellant now stands sentenced for a period of 10 years. In 528/12 the facts as disclosed to the Magistrate by the Prosecutor do not disclose how the Appellant broke into the house, whether any implements were used to break into the house, and whether any serious damage was caused to the house or property therein, whether any one was injured while committing the said offences or whether any inmates were in the house at the time the offences were committed. The total value of the items stolen is SR 9082 and consists of 5 tins of craft cheese, 3 yourghurts,  a nokia mobile phone, a gold bracelet, 3 gold rings, and a box containing Rs1000/-. For the commission of these two offences the Appellant now stands sentenced for a period of 8 years. The total period of imprisonment imposed on the Appellant is 18 years as the sentences in the two cases are to be executed consecutively.

Article 19 of the Constitution guarantees to an accused the right to a fair hearing. This right undoubtedly incorporates a just sentence decided by an independent and impartial court and not one decided by the legislature. The legislature could only prescribe sentences and a general formula for sentencing. It is the responsibility of the court to take into account the particular facts of the case and the personal circumstances adhering to the principle of proportionality which underlie due process.

Thomas O’Malley in the Preface of his text book ‘Sentencing Law and Practice’ states: “It has been said that while the legislatures understand offences, courts understand offenders. No statute or guideline system, no matter how finely tuned, can cater in advance for the unique circumstances of every offender who will come before the courts for sentence.”

 In the case of Jean Fredrick Ponoo Vs The Attorney General SCA 38/2010 this court held in dealing with the issue of mandatory sentences that: “While the legislature is concerned in a general way with the penalty that should attach to an offence, the Court is concerned in a case to case basis the actual sentence that should be meted out to the particular offender. There is a difference between the preoccupations of the legislature in legislating a penalty provision and the pre-occupations of the court in sentencing a particular offender.” In Ponoo the mandatory jail term of 5 years given to the accused for breaking and entering into a building and stealing a pair of shoes therein, was reduced to 3 years.     

We do not venture out to say that the mandatory jail term of 10 years for burglary or the application of consecutive sentences in respect of offences under chapters XXVI, XXVIII or XXIX are by themselves unconstitutional or offend the principle of proportionality in sentencing.  The imposition of such sentences may be appropriate in certain cases of aggravated burglary and the concerns of the legislature will be met by such imposition. However in the words of Laskin CJ in the case of Miller and Cockriell V R (1977) 2 SCR 680, in a few cases it would prove to be “so excessive as to outrage standards of decency”.  In R V Smith (Edward Dewey) (1987) 1 SCR 1045, Lamer J said “Though the State may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate”. Article 16 of the Constitution guarantees to every person the right not to be subjected to cruel and inhuman treatment.

We are of the view that the imprisonment of 10 years imposed on the Appellant who was 18 years old and a first time offender, in respect of case numbered 527/12 for burglary and theft of mainly food items valued at SR 320/- was grossly disproportionate to what would have been appropriate. We, accordingly, quash the sentence of 10 years imprisonment imposed on the Appellant and substitute thereof a sentence of 5 years. We are also of the view that the imprisonment of 8 years imprisonment in respect of case numbered 528/12 for housebreaking and theft of items valued at SR 9082/- was illegal and grossly disproportionate to what would have been appropriate. We, accordingly, quash the sentence of 8 years imprisonment imposed on the Appellant and substitute thereof a sentence of 3 years.  We are also of the view that the order made for the sentences of imprisonment of 10 years and 8 years to be executed consecutively on the Appellant who was 18 years old and a first time offender is grossly disproportionate to what would have been appropriate and tantamount to cruel and inhuman punishment in the circumstances. The sentence of 18 years imprisonment, in our view is so excessive as to outrage standards of decency. We order that the sentences of 5 years and 3 years imprisonment to run concurrently. The period which the person has spent in custody in respect of the offences shall count towards sentence.

We are surprised why the learned Magistrate had not acted in accordance with section 30A of the Penal Code which reads as follows:

 In addition to the sentence of 5 years imprisonment we therefore order in accordance with section 30A of the Penal Code, the Appellant to compensate Mr. Gerald Belle the victim in case number 528/12, by making payment to him in a sum of SR 9082. We do not make a compensation order in respect of case number 527/12 in view of the trivial amount involved. The compensation order shall take effect at the expiry of the Appellant’s term of imprisonment and shall be paid within 6 months of his release from prison. Appellant is hereby informed that failure to comply with the compensation order without reasonable cause is an offence.