IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 461 of 2000
THE REPUBLIC
Versus
FOSTER CHIMALIRO
ISHMAEL OSMAN
BENSON KAMBAYENI
In the Third Grade Magistrate court sitting at
Chikowa Criminal case number 97 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 conviction and sentence. The court
below convicted the defendants, Foster Chimaliro, Ishmael Osman and Benson
Kambayani, for burglary and theft. Burglary and theft are offences under
sections 309 and 278, respectively, of the Penal Code. The lower court sentenced the defendants to
ten months’ imprisonment, respectively, for the burglary and theft. The lower
court ordered the sentences to run concurrently. The judge queries the
conviction because of defects in the charge. The judge, correctly in my view,
also thought the lower court’s sentence for burglary was manifestly inadequate.
The review, however, occurs many years after the defendants served
sentences.
On the night of 3rd
December 1999 complainant, Mrs. Harriet Simbeye, who before sleeping secured
the house, woke up because intruders were breaking the door to the hostel. The
intruders stole the complainants’ clothes from the house. The defendants
admitted the charge at the police. They pleaded guilty in the lower court. The
defendants are first offenders although, it appears, the same court convicted
them of offences committed around the same time.
The reviewing judge
detected serious flaws in the charge. The charge had two counts: burglary and
theft. The prosecution inserted the statement of the offence for the two
offences simultaneously. The two counts were followed by a single ‘particulars
of offence’ embracing the two counts:
“Peter Chimaliro, Ishmael Osman and
Benson Kambayeni on or about the night of
This was contrary to section 128 of the
Criminal Procedure and Evidence Code.
Section 128 (a)(i) provides:
“A count of a charge shall commence
with a statement of the offence charged, called the statement of offence.”
Section 128 (a)(ii) provides:
“The statement of the offence, shall
describe the offence shortly in ordinary language, avoiding as far as possible
the use of technical terms, and without necessarily stating all the essential
elements of the offence, and if the offence charged is one created by written
law, shall contain a reference to the section, regulation, by law or rule of
the written law creating the offence.”
Section 128 (a)(iii) provides:
“After the statement of the offence,
particulars of such offence shall be set out in ordinary language, in which the
use of technical terms shall not be necessary.”
The lower court should not, bearing in mind
the defendants were unrepresented, have allowed the charge without amendment (Paundi v Republic (1966-68) ALR (Mal)
245. There was, as the reviewing judge thought, duplicity in the particulars of
offence. Without the facts, elaborately prepared and presented, which the
defendants accepted, the defendants could have thought they were tried for one
offence. Counts and charges must be drafted so that they do not mislead the
defendant concerning the offences and the issues the defendant is in court for.
A court on review or appeal, unless the defendant is not prejudiced in any way
either on how he understands the matters he is in court for or in the
presentation of his defense, will interfere with the conviction where there are
serious defects in the framing of charges (R
v Miti (1923-61) 1 ALR (Mal) 205). The Court will not interfere where the
defect occasions no injustice to the defendants (Britto v R (1961-63) 2 ALR (Mal) 511). In this matter, the
prosecutor presented the facts in support of the plea succinctly and in a
manner clearly demonstrating the defendants committed two offences. The defect
in the particulars did not prejudice the defendants. The conviction is
confirmed.
The reviewing judge
also criticized the sentence for burglary as manifestly inadequate. 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 the mental component of 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 simple. 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 defendants are offending
for the first time. They are young. The defendants pleaded guilty. Moreover,
the victims, women living alone, were vulnerable. This aspect puts the matter
above the threshold case deserving a sentence of three years imprisonment.
Moreover more than one person participated in the offence. The sentence of
twelve months imprisonment is inappropriate. It ignores this Courts approaches
after Republic v Chizumila. I would have enhanced the sentences if
the defendants had not already served the sentences the lower court passed.
Made in open court
this 3rd Day of October 2003
D F Mwaungulu
JUDGE