CONFIRMATION CASE NO. 403 OF 2000
1. USEN MDALA
ORDER IN CONFIRMATION
The convicts were charged with the offence of trespassing on a graveyard. This offence is stipulated in Section 129 of the Penal Code (Cap. 7:01) of the Laws of Malawi.
As required by the provisions of the Criminal Procedure and Evidence Code the matter was referred to the High Court for confirmation. I happen to have been the Reviewing Judge and was of the view that a sentence of twenty-four(24) months imprisonment with hard labour was manifestly excessive. I did, therefore set down the case for consideration of the said sentence.
Facts of the Case
The prisoners pleaded not guilty to the charge of trespassing on a burial place. There was overwhelming evidence offered by the State that the two had indeed trespassed on a graveyard. The court judged them guilty and convicted them accordingly. The convictions can not be questioned and they are, therefore, confirmed. Following from what I have just pointed out above the question that this court is left to deal with is the sentence that was passed by the court below.
The offence of trespassing on a graveyard is a misdemeanour. The section that creates this offence does not provide for the penalty where a person commits this offence. Thus one must have recourse to Section 34 of the Penal Code (Cap. 7:01) of the Laws of Malawi which provides that:-
“When in this code no punishment is specifically provided for any misdemeanour,
it shall be punishable with a fine or with imprisonment for a term not
exceeding two years or with both.”
For this reason the sentence that was imposed on the Defendants will have to be disturbed. This court therefore passes a sentence of ten(10) months which will result in the immediate release of the prisoners. It is so ordered that they be released from custody unless they are being held for other lawful reasons.
Made in open Court this 8th day of June 2000 at the Principal Registry,