Police v El-Zaibak

In the matter of Police v El-Zaibak, the respondent was found guilty of serious criminal trespass, aggravated serious criminal trespass, theft and illegal use. The respondent had committed the offences in company with a co-offender who had previously been sentenced to 12 months imprisonment with a 28 day non-parole period. The respondent was subsequently sentenced to a single term of imprisonment for 11 months and two weeks, which was suspended. The police appealed the sentence, arguing it was manifestly inadequate.

The court had to determine whether the magistrate erred in considering himself bound by considerations of parity with the co-offender's sentence. The court also had to consider whether the magistrate erred in failing to revoke the respondent's bond. The court found that the magistrate did indeed err in considering himself bound by considerations of parity, as the respondent had committed more offences than the co-offender, had breached the conditions of a bond, and had a different criminal record. The court further found that the sentence was manifestly inadequate and that the magistrate should have revoked the respondent's bond.

The court allowed the appeal, set aside the sentence imposed by the magistrate, and remitted the matter for further hearing before the Magistrates Court. The court also considered it appropriate for the respondent to be dealt with by one court at one time in respect of all outstanding offences. If the respondent was committed to the District Court for other offences, it may be appropriate for these offences to be referred to the District Court to be dealt with by the same judge and at the same time. Alternatively, if the respondent was not committed to the District Court for other offences, it would be appropriate for the one magistrate to sentence him for all offences, or alternatively, to consider referring the matter to the District Court for sentence.