[2017] KEHC 1423 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 65 OF 2017

MILLICENT WANDIA MURAGE alias

MILLICENT WANJA MURAGE………………………..…….APPELLANT

-VERSUS-

REPUBLIC……………….....……….…………..…............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (D. Nyaboke ) at Wanguru, Criminal Case No. 442 of 2017 delivered on 27th September, 2017)

JUDGMENT

1. The appellant Millicent Wandia Murage alias Millicent Wanja Murage was charged with stealing contrary to Section 275 of the Penal Code in Criminal Case No. 442 of 2017 at the Principal Magistrate’s Court Wanguru. The Appellant pleaded guilty to the charge. She was sentenced to serve two(2) years imprisonment without the option of a fine.

2. The Appellant was dissatisfied with the sentence and filed this appeal against the sentence raising three grounds namely:-

(i) That the learned Magistrate erred in fact and in sentencing her to an excessive sentence.

(ii) The learned Magistrate erred in fact and in law in failing to give the accused a non-custodial sentence.

(iii) That the learned Magistrate erred in fact and in law in failing to take into account the fact that the accused was remorseful, and a first offender who would be rehabilitated through a community service order.

She prayed that the appeal be allowed and the sentence given to the accused be quashed/reviewed.

3. Together with the appeal, the Appellant filed a notice of Motion under Section 357 of the Criminal Procedure Code seeking release on bond pending hearing and determination of the appeal.

4. When this application came up for hearing the Court directed the parties to proceed with the appeal since the appeal was only on the sentence. This after the State opposed the application for bail pending appeal and also considering the circumstances of the case.

5. The Appellant was alleged to have stolen Ksh.25,500/- from Rodah Wamutira who is her mother. The mother had reported the matter to the Police and the Appellant was arrested. The Appellant had bought a mobile worth Ksh.10,000/= make Techno. At the time of arrest the Appellant had in her possession Ksh.3,500/-. She was charged in Court and pleaded guilty whereupon she was sentenced to imprisonment for two years.

6. Apparently it is the mother who instructed the advocate to file the appeal and the application. During the hearing of the appeal she was cross-examined and she confirmed that she would like the Appellant to continue with her studies.

7. Upon examining the mother the State relented and did not oppose the appeal. He was of the view that considering the age of the appellant, the plea of guilty and that she was a student, the trial magistrate ought to have considered a non-custodial sentence.

8. The Appellant pleaded guilty to the charge. She was a first offender. The mother recovered a mobile phone which the Appellant had bought and/cash Ksh.3,500/=. In her mitigation she urged the Court to forgive her. She had no criminal record.

9. Sentencing is the discretion of the trial magistrate. As a general principle, imprisonment should not be imposed on a first offender except where the offence is particularly grave, aggravated or widespread in area so that imprisonment acts as a shock deterrent. Where there are no aggravating circumstances, the emphasis in sentencing first offenders ought to be on reformation.

10. The Appellant was not only a first offender but was a young lady who was slightly over eighteen years old. She had stolen from her own mother. It has now been shown that she had just been admitted to Thika Royal College of Research and Development Studies. This was a suitable case for a non-custodial sentence to enable her reform. A custodial sentence would harden her and ruin her progression in life. She may have pleaded guilty in the hope that the Court would be lenient. Her plea for forgiveness did not elicit any mercy from the trial Court. No consideration was given to the fact that a substantial amount of the money stolen, i.e. mobile phone worth Ksh.10,000/= bought with the money and cash Kshs.3,500/= was recovered. I am of the view that the sentence was harsh given the circumstances of this case.

11. There were many options for sentencing the Appellant who was a first offender. These are:-

-Suspended sentence under Section 15(1)Criminal Procedure Code.

- Fine, Section 28 (1) (b) Penal Code.

-Probation under Probation of Offenders Act.

-Community Service under the Community Service Orders Act, to name but a few.

The sentencing Policy Guidelines states that one of the mitigating factors in sentencing is that the accused is a first offender and pleading guilty at the earliest opportunity and co-operation with the prosecution and the Police. It further states at Paragraph 21. 1:

“The overall objective of the criminal justice system is to convict those who have committed offences. Thus persons pleading guilty contribute towards meeting this objective as well as enabling the victim to obtain justice without unreasonable delay. It also protects a victim from re-victimisation that may occur during trial. Pleading guilty also saves the courts’ time.”

The Sentencing Policy Directions to persons who have pleaded guilty is given as follows:

“Where an accused person pleads guilty and exhibits remorsefulness, the sentence is reduced in the same terms as a single mitigating circumstance discussed at paragraph 23:9(ii) of these guidelines”

There were mitigating circumstances in this case which were the age of the offender that she pleaded guilty, she was a first offender and was remorseful. The sentencing Policy Guidelines states that the effect of the mitigating circumstances is to lessen the term of custodial sentence.

12. Sentencing is the discretion of the trial Magistrate. When it comes to first offenders the Court has a duty to consider whether a non-custodial sentence would be suitable, where the option of a non-custodial sentence should be reserved for the case in which the objectives of sentencing cannot be met through a non-custodial sentence.

13. The trial Magistrate was very casual. She did not state why she had to sentence the Appellant for two years when she had pleaded guilty, was a first offender and had shown remorse and her age which was slightly over eighteen years. This is a case which fitted squarely in the guidelines given for non-custodial versus custodial sentences given in the sentencing Policy guidelines. It seems that these guidelines are foreign to the trial Magistrate and it is recommended that she reads the guidelines.

14. I am of the view that the sentence meted out was not only excessive but very harsh. The Appellant pleaded guilty to stealing Ksh.25,500/= contrary to Section 275 of the Penal Code from Rodah Wamutira Mugo who is her mother. She bought herself a mobile phone worth Ksh.10,000/= and Ksh.3,500/= was recovered from her.

15. In mitigation she prayed for forgiveness by Court and her mother. The appeal Court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case or that the Court overlooked some material factor, or took into account some wrong material or acted on a wrong principle. In the case of Ogola S/o Owoura - Reginum (1954) 21 270 it was stated:

“The principle upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the Appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in James –V- R (1950) 18 E.A.C.A. 147 “it is evident that the Judge gas acted upon some wrong principle or overlooked some material factor”.

To this we would also add a 3rd criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case: R –V- Sher Showky 1912 CCA 28 T.L.R. 364. ”

16. Taking this into consideration and based on the circumstances of this case which I have stated above, I am of the view that the sentence merits interference by this Court. For the reason that no account was taken that the Appellant had pleaded guilty, and was a first offender. The trial Magistrate ought to have taken this into consideration. She did not state why such a harsh custodial sentence had to be imposed on the appellant who had pleaded guilty. The sentence of two years to a girl below 19 years old who was waiting to join college, a first offender who was remorseful was manifestly excessive in the circumstances. It would ruin the life of this girl if she is allowed to waste in the prison for two years. Despite having information that the complainant was the mother she did not call a sentencing conference to listen to the view of the Complainant in order to consider the appropriate sentence in the circumstances of this case. In Wanjema -V- R (1971 E.A. 49(3) the Court stated that:

“A sentence must in the end, however, depend upon the facts of its own particular case. In the circumstances with which we are concerned, a custodial order was appropriately made. But that which was made cannot possibly be allowed to stand.

An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this court’s interference with it on each of these grounds. No account was taken as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R 165 and Godfrey (1967), 51 Cr. App. R 449 (This admits of no doubt because the magistrate awarded the maximum sentence to this first offender, which of itself is unusual). Matter extraneous to the trial was acted upon for the magistrate bore in mind that he had “issued a warning only last week that dangerous drivers will be dealt with severely by the court.”

In this case the Appellant was sentenced to two years imprisonment where a sentence of three years is provided. The trial magistrate did not indicate why she had to issue such a harsh sentence. Considering the circumstances of this case, and considering the fact that the sentence of two years was excessive, the Court has to interfere with the discretion of the Magistrate in sentencing the Appellant. Having taken all the facts and the circumstances of this case, I am of the view that this was a suitable case for a non-custodial sentence. A sentence on probation would have serviced or even a sentence on Community Service which the Appellant is pleading with this Court to grant. This will be determined once I get the Probation Officer’s report. I will therefore allow the appeal on sentence. I order that the sentence of two years shall be set aside and be replaced with sentence on probation for a period of eighteen (18) months.

Dated and delivered at Kerugoya this 3rd day of November, 2017.

L. W. GITARI

JUDGE

Read out in open Court, Mr. Omayo Prosecution Counsel for State, appellant present, M/S Waweru holding brief for M/S Thungu for appellant, court assistant Naomi Murage this 3rd November, 2017.

L. W. GITARI

JUDGE

3. 11. 2017