IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CONFIRMATION CASE NO. 1607 OF 1998
THE REPUBLIC
VERSUS
PETER MUZUZI
From the Second Grade Magistrate sitting at Midima
CORAM: D
F MWAUNGULU (JUDGE)
Manyungwa, Assistant Chief State
Advocate, for the state
Defendant, absent, unrepresented
Kachimanga, official court
interpreter
JUDGMENT
This case was set down by the
reviewing judge who considered enhancing the sentences on the barglary and
theft of a bicycle offences. The
reviewing judge thought that the sentences on the two counts should be enhanced
because there were manifestly inadequate.
The defendant was the only one convicted on the charge against the two
others. The cases against the others were
withdrawn when the defendant pleaded guilty to the charge. The Midima first grade magistrate convicted
the defendant on three counts. On the
first count the defendant was convicted of barglary and on the second count the
defendant was convicted of theft of a bicycle an aggravated theft. He was sentenced respectively with three
years imprisonment with hard labour, one year imprisonment with hard labour and
six months imprisonment with hard labour.
The reviewing judge as I said was concerned with the sentences of
barglary and theft of a bicycle.
On the night of 30th
August, 1998 the complainant Mrs Jean Mataka of Dzolopi village, chief
Kadewere, Chiradzulu district went to sleep.
She looked the doors of the house.
Around 4 o’clock she waked up to find that the door of the house was
widely opened. She discovered that
property worth at K3,000 and a bicycle were stolen from the house. The defendant was arrested by the
police. He admitted the charge at the
police. He also pleaded guilty of the
charge when he appeared before the first grade magistrate in the court
below. The defendant is 25 years of
age. He made the mitigation statement
himself. There wasn’t much in it. Of course the defendant raised domestic
concerns. These were properly
overlooked by the court below. When
sentencing the defendant however the lower court alluded to that the offences
for which the defendant was convicted were very, very serious ones. He therefore passed the sentence that I have
just passed.
Obviously the sentence of six months
imprisonment with hard labour for theft of a bicycle is out of touch with the
guideline that this court has followed closely since 1964 when the case of Crown
vs Paulo was decided. It might be
useful to reproduce the guideline because the lower court seem not to have even
looked at the guideline. The
appropriate sentence here was eighteen months imprisonment with hard
labour. The reviewing judge was
therefore right that this sentence was manifestly inadequate.
On the barglary charge the sentence
is not manifestly inadequate. It is not
necessary for this court to interfere.
Obviously the lower court although did not refer to the case of Republic
vs Chizumila passed the sentence which agrees with this sentence. There, after reviewing previous sentences
and approaches, this Court suggested a starting point of six years for the
offence of burglary. The starting point would be scaled upwards or downwards
depending on aggravation or mitigation.
If there are strong mitigating
factors the sentence would be much lower than six years. The trend set down by
this Court is that three years is appropriate where the defendant pleads
guilty, offends for the first time, is young and the burglary itself is the
usual one. Burglars should expect immediate loss of liberty, and a loss for
some longer time, because of the commonplaceness of the offence and its
seriousness to victims and the public.
Sentences for less than three years should be the exception and only where
there are strong mitigating factors. Where there are some aggravating factors
and mitigating factors considerably outweigh the aggravating factors, sentences
would be higher than three years but not close to six years. Where there are
aggravating factors and they outweigh mitigating factors the sentences would be
getting closer to six years. Six years, as the survey in Republic v
Chizumila showed, is appropriate for an offender who, because of his
previous convictions, has lost all entitlement to mercy. Consequently, previous
convictions do not per se justify a sentence close to six years. The sentencing
court has to decide in fact whether previous convictions completely disentitle
the defendant to mercy. The six years
will be exceeded where the burglary is really serious, however difficult it is
to define. I can however foresee several people committing a series of
burglaries with a lot of damage to premises and a lot of violence and
intimidation to victims, vulnerable and sold alike. This has happened before. A
court would be very justified there to pass a meaningful sentence that is well
beyond the starting point.
Burglary in its mental complexion
involves the intention to commit a felony when entering a dwelling house. That
is the mental situation, the mens rea,
sentencing is directed at. Anything enhancing this mental element
deserves greater punishment. Consequently, sophisticated preparation or
planning, involvement with others, and
malicious and malevolent disposition during the trespass indicate a high
level of criminality and culpability courts will visit with heavy sentences.
None of these levels of culpability are present here. The mental element was
nothing more than the ordinary one required for the crime.
Equally, the actus reus the sentence
is directed to the trespass. Anything that makes the trespass shocking and
serious will justify a heavier punishment. This will be the case where during
the trespass, there is serious damage to the property or the trespass is
accompanied by violence and profligacy. It might also be that the trespass is
conducted in a very sophisticated manner as to indicate a high level of
criminality. The court is likely to impose a sentence for the crime. None of
these aspects are present here. By all standard this is a normal burglary.
The sentence may however be enhanced
due to matters extraneous to the crime itself. In relation to burglaries and
housebreaking, the sentence could be enhanced if the occupants were disturbed
and put in extreme fear, anxiety and danger. Equally, the crime will be
considered pronounced if the victims are vulnerable, young or elderly. None of
these are present here.
There were more things in mitigation
therefore. These were the defendant’s first offences. They are not the worst
instances of the crime. This is the sort of offence where this Court approves
three years where there is a plea of guilty. The sentence of six years
imprisonment with hard labour is manifestly excessive. One aspect, however,
transposes this sentence from the usual burglary. The offence was committed by
more than one person. In Republic v Makanjila, Conf. Cas. No.597 of
1996, unreported, this Court said:
“ The offence was committed in concert. Close to twenty armed men swooped on the complainant’s house with
much pomp. In Republic - v -
Zaola (1995) CC No. 276 this court said:
‘There were further aggravating
circumstances. The defendant was in a
company of others. The practice of this
court has been to increase sentences where more than one person is involved in
the commission of the crime’ ”
There is a great threat to society when a people act in
concert to commit crime, more so heinous crime.
I set aside the sentence of six years imprisonment with hard labour. The
defendants will serve four years imprisonment with hard labour.
Made in open court this 26th June,
1997
D F Mwaungulu
JUDGE