IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 144 of 2003
THE REPUBLIC
Versus
LLOYD AMANI
In the First Grade Magistrate court sitting at
Nsanje Criminal case number 75 of 2001
CORAM: DF MWAUNGULU
(JUDGE)
Kalaile, Senior State
advocate, for the state
Defendant, present, unrepresented
Kamanga, Official Interpreter
Mwaungulu,
J
JUDGMENT
The judge who reviewed
this matter set it down to consider the sentence. The court below convicted the
defendants, Lloyd Amani, of breaking into a building and committing a felony
therein. Breaking into a building and committing a felony therein is an offence
under section 311 of the Penal Code. The
lower court sentenced the defendant to three-and-a-half years’ imprisonment.
The judge thought the lower court’s sentence for breaking into a building and
committing a felony therein manifestly inadequate.
The defendant broke,
entered and stole from the complainant’s grocery property valued at K10, 000.
The complainant was not at the shop when the offence occurred. The defendant
admitted the charges at the police. He pleaded not guilty in the lower court.
The defendant is 37 years old. The defendant admitted to a relevant previous
conviction. The lower court’s reasoning on the sentence is meager. The lower
court considered the offence’s gravity from the sentence the legislature
prescribed. Clearly, however, the lower court imposed a heavier sentence
because of the defendant’s previous conviction
The sentencing
approach is the same for breaking into a building and committing a felony
therein as with 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 breaking into a building and committing a felony therein,
breaking into a building and committing a felony therein is a compound crime
involving a trespass and commission of a felony inside the building. In
relation to the trespass, a sentencing has to consider the nature and extent of
the trespass imposing a heavier sentence where there is serious damage to the
premises or disturbance to people present during the crime. The sentence will
certainly be influenced by the seriousness of the crime committed in the
building. Certainly, the sentence will be higher where the offence committed is
grave from the standpoint of the sentence the legislature prescribed. For less
serious crimes the sentence may be enhanced because the offence committed in
the building was, minding the circumstances of the offence, the offender and
the victim and the public interest, serious.
In this matter three
years imprisonment was manifestly excessive. Of course, from the evidence the value
of the property stolen, given the complainant’s station in life, was
considerable. Courts have handled for similar offences involving similar
victims larger quantities and value of property. Moreover, the lower court
should have considered trends emanating from this Court on this offence and
injuries involved. If the lower court had done that it would not have imposed
the sentence it imposed.
Of course, the
defendant had a relevant previous conviction. It was only one. The defendant,
in my judgment, had not last his whole right to leniency. In an appropriate
case, and this was one, a sentencing court may overlook petty previous
convictions (Rendall-Day v Republic (1966-68)
ALR (Mal) 155. Moreover, previous convictions are no reason for a sentence
higher than one the offence and the offender, after considering the
circumstances of the victim and the public interest, deserve. Decisions of this
Court (R v White (1923-61) 1 ALR
(Mal) 401; Bwanali v R (1964-66) ALR
(Mal) 329) and the Supreme Court (Maikolo
v R (1964-66) ALR (Mal) 584) are to the similar effect.
The sentence of three-and-a-half
years’ imprisonment is, as the reviewing judge and the state observed,
inappropriate. I set it aside. I sentence the defendant to two years
imprisonment.
Made in open court
this
D F Mwaungulu
JUDGE