Judge reduces sentence after magistrate's error in theft case

A High Court judge has reduced the sentence of Calvin Madau, who was convicted of three counts of theft but mistakenly sentenced for four counts due to a trial magistrate's error. Justice Paul Musithu found no issue with Madau’s conviction on the three counts but reduced his sentence by a quarter to reflect the correct number of charges.

Justice Musithu urged magistrates to remain vigilant to avoid elementary mistakes, stating, "Trial magistrates are urged to be always vigilant so that elementary mistakes of this nature are avoided."

Madau had originally been charged with four counts of theft but pleaded not guilty to three counts, and a full trial proceeded on those charges. However, the record of proceedings did not address the fourth count. A regional magistrate reviewing the case raised concerns, noting that Madau had only pleaded to three counts, contrary to the trial magistrate's claim that he pleaded not guilty to all four.

As a result, the High Court reviewed the proceedings, ruling that the trial magistrate's failure to record the fourth count was an irregularity. Justice Musithu stated that because Madau had not pleaded to the fourth charge, sentencing him for four counts was unjust.

Madau's original sentence included a Z$400,000 fine or 30 days in jail, along with an eight-month jail term that was fully suspended. On review, Justice Musithu reduced the fine to Z$300,000 and cut the jail sentence from eight to six months, with the same conditions for suspension.

Madau was also ordered to pay Z$495,000 in restitution to the complainant, down from the original Z$630,000. If he had already paid the larger amount, the court ordered that he be refunded Z$135,000 within 14 days.

Justice Musithu confirmed that the Prosecutor General could still pursue a fresh prosecution on the unaddressed fourth count.