1.The applicant was arraigned before the Senior Principal Magistrate’s Court at Engineer charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act (herein “the Act”), vide Sexual Offence Case No 47 of 2018. He was further charged with an alternative offence of committing an indecent act with a child contrary to section 11 (1) of the Act. The particulars of each charge are as per the charge sheet.
2.He pleaded not guilty and the case proceeded to full hearing. The prosecution called four (4) witnesses and at the close of the prosecution case the trial court ruled that, he had a case to answer and placed him on his defence. He did not call any witnesses during the trial.
3.At the conclusion of the entire case, he was convicted on the main count and sentenced him to serve a term of ten (10) years imprisonment.
4.However, by a document filed on October 21, 2021, under the heading of: “Memorandum of Sentence Review” the applicant is seeking for review of sentence, so that the sentence is reduced, or he be grant a non-custodial sentence, or the court grants any other relief it may deem appropriate.
5.He avers that he a first offender and remorseful of the offence he is charged with. That, he is well rehabilitated through training in biblical courses and has learnt to be a law abiding citizen. Furthermore, he comes from a poor family and is a sole breadwinner thereof and, therefore his incarceration has placed them in a very difficult situation.
6.Finally, he avers that he did not give proper mitigation during the sentencing and prays for an opportunity to mitigate. That, he will abide by all the conditions that the court may fit to give
7.However, the application was opposed vide submissions filed by the respondent dated October 24, 2022, wherein it is submitted that, the trial court considered the circumstances of the offence and applicant’s mitigation before meting out the sentence and used its discretion fully. Further, the applicant does not deserve a lighter sentence he has lured the complainant, a young and vulnerable child, to his house and defiled her.
9.I have considered the application in the light of the material before court and I note that, the law that guides the revisionary power of the High Court is provided for under sections 362 of the Criminal Procedure Code (herein “the Code”), which states as follows:
10.However, the section should be read together with section 364 of the Code which provision states as follow: -
11.It is therefore clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. Thus the objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be invoked where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
12.In the instant matter, the applicant was convicted and sentenced of the offence under section 8(1) as read with section 8 (3) of the Sexual Offences Act as follows: -
13.The applicant was sentenced to ten (10) years imprisonment, which is less than the prescribed sentence of twenty (20) years imprisonment as it seems the trial magistrate quoted the wrong section of the law. However, taking into account that the sentence was passed when the decision of the Supreme Court in Muruatetu was still being applied in sexual offences, I shall not enhance the sentence.
14.In any case to enhance the sentence without an application from the respondent and without according the applicant an opportunity to be heard, will amount to an injustice and therefore having found the sentence is legal, I shall not interfere with it. The application is dismissed.
15.It is so ordered