IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case Number
530 of 2000
THE REPUBLIC
Versus
Sinki Chikopa
In the First Grade Magistrate court sitting at
Soche Criminal case number 733 of 2000
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 for
burglary. The court below convicted the defendant, one Sinki
Chikopa , 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 four years and one year imprisonment, respectively, for the
burglary and theft. The judge, correctly in my view, thought the lower court’s
sentence for burglary was manifestly excessive.
On the night of 2nd
and 3rd March, 2000 the complainant, Ms. Banda, who when sleeping
secured the house, woke up to find the house broken into. The intruders broke
and entered through a window and stole property from the house.
The complainant is a woman living alone. The complainant was asleep at the time
of the crime. The defendant admitted the charge at the police. He pleaded
guilty in the lower court. The defendant is 18 years old. He is a first offender.
The lower court’s reasoning on the sentence is impressive. The lower court
regarded this Court’s direction in Republic
v Chizumila Conf. Cas No. 316 of 1994, unreported.
The lower court, following this Court’s direction in Republic v Mkwate [1973-75] 7 MLR 407,
decide, correctly in my judgment, that the sentence for burglary would be
custodial. The lower court considered the seriousness of the offence from the
standpoint of the sentence Parliament prescribed, the age, that the defendant
committed the offence for the first time and the guilty plea.
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 reus or mens rea
of an offence go
to influence sentence. It is possible to isolate and generalize circumstances
affecting the extent, intensity and complexion of the mental element of a
crime: planning, sophistication, collaboration with others, drunkenness,
provocation, recklessness, preparedness and the list is not exhaustive. Circumstances affecting the extent, intensity
and complexion of the prohibited act depend on the crime. A sentencing court, because
sentencing is discretionary, must, from evidence during trial or received in
mitigation, balance circumstances affecting the actus reus or mens rea of
the offence.
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 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 simple. It involved breaking a window. The trespass was not
forceful or serious. It did not involve serious damage to premises. It was not
accompanied by threats or actual violence.
The defendant is offending for the first time. He is young. The
defendant pleaded. This aspect distinguishes this case from Republic v Tembo Conf. Cas. No. 726 of 2000, unreported.
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. This was, in many ways, the threshold case where, for purposes of
consistency, this Court approves three years imprisonment. The sentence of four
years imprisonment with hard labour is inappropriate. I set it aside. I
sentence the defendant to three years imprisonment.
Made in open court
this 3rd Day of October 2003
D F Mwaungulu
JUDGE