CONFIRMATION CASE NO. 794 OF 2000
1st FRANCIS MAWAYA
ORDER IN CONFIRMATION
The offence of Rape is provided for in Section 133 of the Penal Code (Cap 7:01) of the Laws of Malawi and it carries a maximum sentence of death or life imprisonment. The sentence meted out by the Second Grade Magistrate was made subject to confirmation by the High Court. Upon being brought before the High Court the judge who reviewed this case set it down for consideration of the sentence. It was the view of the Reviewing Judge that the sentence of three (3) years, for this offence of Rape, was manifestly inadequate due regard being had to all the circumstances of the case. For reasons that will appear later in this judgment I wholly agree with the sentiments of the Reviewing Judge. I must point out that the State also agrees with the views of the Reviewing Judge.
The prisoner pleaded not guilty to the charge of Rape and was convicted after a full trial. It was noted by the Reviewing Judge, and I am in agreement with him, that the issue that ought to be dealt with at the review of this case is that of sentence. As such this court has convened to consider the inadequacy of the sentence.
In so far as it is the relevant to the question, of sentence it is a fact that at the commission of this offence there was more than one person involved. There was the 1st Defendant and other two Defendants. Finding of guilt was entered in respect of the other Defendants and the court below made a probation order. This the court did because these other Defendants are juveniles. Further, it is a fact that on this day the convict had unlawful sexual intercourse with complainant for more than once moreover this particular convict was a leader of the group of that gang who raped the complainant.
Regarding the conviction of the 1st Defendant I have no doubt in my mind that he was properly convicted.
Learned Counsel has submitted, on the authority of the case of Rep -vs- Ganizani Layelo being Confirmation Case No 577 of 2000 (unreported), a sentence of three (3) years in the circumstances of the present case is manifestly inadequate. In Layelo’s case two convicts who gang raped a complainant were sentenced by the lower court after a full trial, to five (5) years imprisonment with hard labour. On confirmation the High Court, with Honourable Justice Chipeta presiding, the sentence was enhanced to seven (7) years imprisonment with hard labour. The sentence was enhanced because more than one person was involved in raping the complainant.
In my view the case of Ganizani Layelo, cited above, is relevant to the instant case. It is pertinent because there are some similarities viz in both cases more than one person was involved in the commission of the offence; and just like there was a plea of not guilty in Layelo’s case there was also a plea of not guilty in the case under consideration. Further, it is observed that in the two cases being compared the convicts took turns in forcibly having unlawful sexual intercourse with their victims.
For the reasons given above I am inclined to enhance the sentence, as intimated by the Reviewing Judge, and it is hereby enhanced. The sentence of three (3) years imprisonment with hard labour is increased to seven (7) years imprisonment with hard labour. It is so enhanced so that the court must be seen to be consistent in sentencing prisoners who have committed similar offences in similar circumstances. It is for this reason that I do not wish to depart from what my learned brother judge observed in Layelo’s case.
Made in open Court this 12th day of April 2001 at the Principal Registry,