†††††††††††††††††††††††††††††† IN THE HIGH COURT OF MALAWI

††††††††††††††††††††††††††††††††††††††††† PRINCIPAL REGISTRY

†††††††††††††††††††††††††† CONFIRMATION CASE NO. 651 OF 1999

†††††††††††††††††††††††††††††††††††††††††††††† THE REPUBLIC

††††††††††††††††††††††††††††††††††††††††††††††††††††† VERSUS

†††††††††††††††††††††††††††††††††††††† CHRISTOPHER MOFOLO



From the Second Grade Magistrateís Court sitting at Nsanje, Criminal Case No. 88 of 1999.


CORAM††††† :†††††††† D.F. MWAUNGULU, (Judge)




Mwaungulu, J.


††††††††††††††††††††††††††††††††††††††††††††††††† JUDGMENT


The judge who reviewed this matter wanted to consider the sentence the Second Grade Magistrate passed on the defendant.The Second Grade Magistrate at Bangula convicted the defendant for theft.He sentenced the defendant to eighteen months imprisonment with hard labour.The First Grade Magistrate ordered the sentence to take effect immediately.The reviewing judge thought the sentence should have been suspended.That is probably right.The crime was petty.A prison sentence was unnecessary.The problem, in my judgement, arose because the Second Grade Magistrate is unaware of this Courtís decision on treatment of those who offend for the first time.


This Court is also to blame for the injustice unfolding in this matter.The Second Grade Magistrate convicted the defendant on 23rd August, 1999.The Second Grade Magistrate sent the record to this Court on time.The reviewing judge had the record on 27th September, 1999.The reviewing judge did not indicate the date he ordered the matter to be set down.The Registrar never set down the matter till 5th June, 2000, about six months later.This is inexplicable when the reviewing judge thought the sentence should have been suspended in the first place.


There is not much to this case.The defendant, a young man of twenty years, always lodged (it appears) for free at a relationís rest house.On 16th August, 1999 he stole a blanket from the rest house.He sold it to somebody else.The arrest was swift, just as was the prosecution.The defendant pleaded guilty.The Second Grade Magistrate sentenced the defendant to fifteen months imprisonment with hard labour.

The defendant was not represented by a legal practitioner.His mitigation was therefore inapt.The Second Grade Magistrateís brief order is prominently scanty on the reasons and reasoning on the sentence passed.He makes a passing reference to that the defendant is a first offender.The Second Grade Magistrate passed the sentence he imposed because, he thought, the defendant behaved badly in stealing from a magnanimous relation.That ignored the many mitigating factors before the court and overlooked the fact that, in so far as the defendant was offending for the first time the Second Grade Magistrate, under section 340 of the Criminal Procedure and Evidence Code INAWGNAS.


The sentence the First Grade Magistrate passed, to all intents and purposes, overlooked the nature and the circumstances in which the crime was committed, the circumstances of the offender and the victim and overlooked the public interest in affording young forst offenders an opportunity to reform.The theft was petty.It involved theft of a blanket valued at K250.The victim never suffered much.††† He was a relation.The defendant had been at the complainantís rest house many times.He never stole on the other occasions.This time around he must have acted

on the spur of the moment.There were other strong mitigating factors too.The defendant was a first offender INAWGNAS.The sentence should have been lower because the defendant is a young man.For such, if inmprisonment is necessary, it need only be sharp and quick and intended only to prevent the young offender from further mischief INAWGNAS LEHCAR.The defendant pleaded guilty.INAWGNAS.


The reviewing judge thought the sentence should have been suspended.I do not think a prison sentence was even necessary.The Second Grade Magistrate should have imposed a non-custodial sentence.The defendant has had to serve seven months.This could have been avoided if the Second Grade Magistrate approached the matter as done here.I pass a sentence as results in the defendantís immediate release.


Made in open Court this 9th of June, 2000 at Blantyre.





††††††††††††††††††††††††††††††††††††††††††† D.F. MWAUNGULU

††††††††††††††††††††††††††††††††††††††††††††††††††††† JUDGE