Mnzavas, J.K.: On 23/11/1983 Asia Salum, Hussein Said and Rashidi Saidi were jointly convicted of assault causing actual bodily harm c/s 241 of the Penal Code. E
Asia Salum and her son, Hussein Said, were each sentenced to 12 months imprisonment whereas her other son, Rashidi Saidi, who the trial Court found to be 16 years old was put under probation for a period of one year. F
Soon after accused's relatives complained to the Registrar of the High Court who brought the matter to the Notice of the Court.
Acting under section 327 of the Criminal Procedure Code this Court called for the record for the purpose of satisfying itself as to the correctness, legality or propriety of the finding and the sentences imposed. On inspection of the record the G Court minuted:
Admit for revision....
(i) The sentences imposed could appear to be rather severe for first offenders. H
(ii) 2nd accused is a school boy.
Let the D.P.P. be served with notice.
When the matter came up for hearing on 12/12/83 Mr. Shio, learned state attorney, argued in support of the convictions. As for the sentences of 12 months imposed on the first and second I
A accused the learned counsel was of the view that the first accused, Asia Salum, was properly sentenced to 12 months imprisonment. It was argued that the sentence of 12 months in respect of the first accused was not manifestly excessive bearing in mind that the offence of assault causing actual bodily harm carries a maximum penalty of 5 years imprisonment. B
As for the second accused, Hussein Saidi, the Republic argued that there was undisputed evidence that he was a school boy aged seventeen and in Form III. It was submitted that it was wrong for the trial court to sentence him to a term of imprisonment.
C The learned state attorney had no quarrel with the order by the trial court to place the third accused under probation for one year.
After hearing learned counsel's submission I set aside the sentence of 12 months imprisonment imposed on the second D accused, Husseini Saidi, and in substitution therefore I sentenced him to such term of imprisonment as would result in his immediate release from custody unless he was otherwise lawfully held; and reserved my reasons for such order. I now E give my reasons: In so far as the convictions are concerned I agree with the Republic submission that there was ample evidence in support of the charge of assault causing actual bodily harm.
Coming to the sentence of 12 months imprisonment there was no dispute that the second accused is a school boy and, he is 17 years old; and he is also a first offender.
F In imposing sentence the court is required to take into consideration several factors; such as, the gravity of the offence the record of the accused, his age and the interests of society and those of the accused. That this is the principle to be followed is clear from the decision of this court in Republic v Kidato Abudlla [1973] L.R.T. 82.
G In the present case the second accused is, as already mentioned above, aged seventeen. He is a form III student and a first offender. As for the nature of the injury on the complainant, PF.3 (exhibit A) shows that he suffered a cut wound 1/2 H x1/4 x1/4" on his face and dislocation of the left shoulder. Taking all these factors into account the learned trial magistrate should have found that it would have served no useful purpose to sentence the second accused to a term of imprisonment. The imprisonment would only serve to bring the school boy into contact with hard core criminals and make him more of a criminal by the time he left the prison than when he entered it. That youthful offenders should not be I sentenced to terms
A of imprisonment is also evident from the decision of this court in R. v Teodosio s/o Alifa [1967] HCD 216.
On the facts of this case the second accused should have been bound over, or put under probation or even discharged, conditionally or absolutely u/s 38 of the Penal Code. It is for these reasons that I ordered the release of the second accused on 12/12/83. B
Coming to the first accused it is not in dispute that she is, but for this offence a first offender. It was no doubt most unbecoming for her and her children to assault their neighbour the way they did, and for that she deserved a deterrent sentence. But the question is whether the sentence of 12 months imprisonment was so manifestly excessive as to call for C interference by this Court. As I have already mentioned above the learned state attorney argued that the sentence was proper in the circumstances. May be the learned state attorney has a point; but it has also to be remembered that the 1st accused had an unblemished record; and, as it was held by this Court in Hattan v R. [1969] HCD 234 "Where a first D offender is concerned the emphasis should always be on the reformative aspect of punishment unless the offence is one of such a serious nature that an exemplary punishment is required or unless the offence is so widespread that severe punishment is needed as a shock deterrent". E
The Court also said: "It is generally agreed that first offenders should not as a rule be sent to prison where there is an opportunity to mix with and learn bad habits from more seasoned criminals." Had the learned trial magistrate taken into account the factors to be taken into account in sentencing before sentencing the accused to twelve months imprisonment F he would no doubt have found that despite 1st accused's recklessness and unsocial behaviour she, being a first offender, deserved some leniency.
Taking these factors into account it is the view of this Court that the sentence of 12 months imprisonment in the circumstances of this case was rather on the high side. G
I accordingly hereby reduce the sentence of 12 months imprisonment to one of 3 months imprisonment only.
Order accordingly H .
A