IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 452 of 2002
THE REPUBLIC
Versus
ABASI SILAJI
In the First Grade Magistrate court sitting at
CORAM: DF MWAUNGULU
(JUDGE)
Kalaile, State
advocate, for the state
Defendant, present, unrepresented
Nthole, Official Interpreter
Mwaungulu,
J
JUDGMENT
The judge who reviewed
this matter set it down to consider the sentence the lower court imposed. The
court below convicted the defendant, Abasi Silaji, of burglary and theft.
Burglary and theft are offences under sections 309 and 278, respectively, of
the Penal Code. The lower court
sentenced the defendant to eight years and five years imprisonment, respectively,
for the burglary and theft. The judge, correctly in my view, thought the lower
court’s sentences manifestly excessive.
On the night of
The sentencing
approach is the same in burglary as for other offences. The sentencing court
must regard the nature and circumstances of the offence, the offender and the
victim and the public interest.
Sentences courts pass,
considering the public interest to prevent crime and the objective of
sentencing policy, relate to actions and mental component comprising the crime.
Consequently, circumstances escalating or diminishing the extent, intensity or
complexion of the actus
Besides
circumstances around the offence, the sentencing court should regard the
defendant’s circumstances generally, before, during the crime, in the course of
investigation, and during trial. The just sentence not only fits the crime, it
fits the offender. A sentence should mirror the defendant’s antecedents, age and,
where many are involved, the degree of participation in the crime. The
defendant’s actions in the course of crime showing remorse, helpfulness,
disregard or highhandedness go to sentence. Equally a sentencing court must
recognize cooperation during investigation or trial.
While
the criminal law is publicly enforced, the victim of and the effect of the
crime on the direct or indirect victim of the crime are pertinent
considerations. The actual circumstances for victims will depend, I suppose, on
the nature of the crime. For example for offences against the person in sexual
offences, the victim’s age is important. An illustration of circumstances on
indirect victims is the effect of theft by a servant on the morale of other
employees, apart from the employer.
Finally,
the criminal law is publicly enforced primarily to prevent crime and protect
society by ensuring public order. The objectives of punishment range from
retribution, deterrence, rehabilitation to isolation. In practice, these
considerations inform sentencing courts although helping less in determining
the sentence in a particular case.
Applying these
principles to burglary or housebreaking, burglary or housebreaking involves
trespass to a dwelling house. Circumstances showing intensity, extent or
complexion of the trespass are where the breaking and entry are forceful and
accompanied by serious damage to premises or violence to occupants, fraudulent
or by trickery. The court may regard, where, which is rare, the felony intended
is not committed or, where committed, not charged, the nature and extent of the
crime committed. A sentencing court may affect the sentence where victims were
actually disturbed and, therefore, put in much fear, anxiety, humiliation or
despondency. Equally, a sentencing court will seriously regard that the victims
were elderly or vulnerable.
The six years starting
point set in Chizumila v Republic Conf.
Cas. No. 316 of 1994, unreported presupposes the crime which a reasonable
tribunal would regard as the threshold burglary or housebreaking without
considering the circumstances of the offender and the victim and the public
interest. The approach is that all these considerations would affect the
threshold case. Consequently, depending on intensity of these considerations, the
sentencing court could scale up or down the threshold sentence. At the least,
for a simple burglary, involving the minimum of trespass, irrespective of the
plea where victims are not vulnerable, all being equal, the lowest the sentence
can get is three years imprisonment. Housebreaking and burglary will seldom, if
ever, be punished by a non-custodial sentence or an order for community
service.
In this matter the
trespass was not simple. It involved breaking locks. The trespass was not
forceful or serious. It did not involve serious damage to premises. The
complainant was however in real fear and anxiety, given, as the lower court
observed, Ms Fitzesimons cannot walk. The defendant is offending for the first
time. He is young and pleaded not guilty. Moreover, the victim, a woman living
alone, was vulnerable. This aspect puts the matter above the threshold case
deserving a sentence of three years imprisonment. The sentences of eight and
six years’ imprisonment are manifestly excessive. Two aspects make this case
out of the threshold cases of burglary: the victim is elderly and does not walk
and that she was disturbed during the crime. Although, the property stolen is
worth over K60, 000, the sentence imposed for theft is the maximum. The maximum
sentence is reserved for the worst offence. I set it aside the sentences. The
defendant will serve four years and one year for the burglary and theft. The
sentences shall run concurrently.
Made in open court
this 3rd Day of October 2003
D F Mwaungulu
JUDGE