Peter Chilufya v The Queen ((1963 - 1964) Z and NRLR 95) [1964] ZMHCNR 13 (25 June 1964)

PETER CHILUFYA v THE QUEEN (1963 - 1964) Z and NRLR 95 1963 - 1964 Z and NRLR p95 [Before the Honourable Mr. Jus�ce RAMSAY on the 25th June, 1964.] Flynote Taking similar offences into considera�on - separate sentence not to be imposed. Headnote Offences similar to those with which a court is dealing may be considered when sentencing but cannot be the subject of separate convic�on and sentence. Any sentence producing a " sense of shock " may be altered. C A Stacey for the appellant G Chaane, Assistant Crown Counsel for the Crown Judgment Ramsay J: The appellant was convicted on his own plea on two counts of fraudulent false accoun�ng, contrary to sec�on 292 (b) of the Penal Code. He was sentenced to one year's imprisonment with hard labour on the first count and six months imprisonment with hard labour on the second count. The two sentences were ordered to be cumula�ve and the magistrate also sentenced the appellant to six months imprisonment with hard labour on each of four other offences which the appellant asked him to take into considera�on, and he ordered that these sentences should run concurrently with the six months imposed on the second count. The magistrate was mistaken when he found the appellant guilty and convicted and sentenced him for these offences to which he was asked to give his considera�on. The procedure which is followed in the courts in Northern Rhodesia is as described in Archbold (35th edition), paragraphs 615 and 616. The sentences are only passed for the offence with which the court is actually dealing. In the circumstances therefore, I set aside the convic�on for the four offences taken into considera�on, and I reverse and set aside the sentences of six months imprisonment with hard labour imposed on each. These sentences were ordered to run concurrently with the sentence of six months imposed on count 2 so it makes no prac�cal difference in the total sentence which the magistrate ordered to be served. The facts as found by the magistrate were that the appellant was a postmaster employed by the Federal Post Office at Mungwi and he made a false entry in the post office savings bank daily account sheet showing that Mrs. Chipungu had received £60 for a withdrawal when in actual fact she had received only £30. On the second count the fraudulent entry related to the withdrawal of a sum of £10 which had never been made. The sum involved in the offences taken into considera�on was also the sum of £40 and in mi�ga�on the appellant said that he had taken this money in order to repay Mrs. Chipungu. The appellant is a first offender. He is a young man of only twenty - four years of age. He had the responsible posi�on of a postmaster and as such he presumably handled fairly large sums of money. His pay was 1963 - 1964 Z and NRLR p96 RAMSAY J only about £15 per month net. Including the offences taken into considera�on, the sum of only £80 was involved, and of this £80, £40 was stolen in order to repay the first £40 which was stolen. In the circumstances the sentence does give me a sense of shock and I am therefore able to impose on the appellant the sentence which I think ought to have been imposed. In doing so I take into considera�on the four offences which have been asked to be taken into considera�on and on count 1, I impose a sentence of nine months imprisonment with hard labour and on count 2, a sentence of three months imprisonment with hard labour. Both these offences were really part of the same transac�on, and I therefore order that they be served concurrently, making a total of nine months imprisonment in all, and the sentences will have effect from the 17th April, the date of arrest.