IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 234 of 2001
THE REPUBLIC
Versus
JAMES KACHULE
In the First Grade Magistrate court sitting at
Thyolo Criminal case number 254 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. The court
below convicted the defendant, James Kachule, of
attempted burglary and unlawful wounding. Burglary and unlawful wounding are
offences under sections 309 and 241, respectively, of the Penal Code. The lower court sentenced the defendant to
five and one-and-a-half years’ imprisonment, respectively, for the attempted
burglary and unlawful wounding. The judge, correctly in my view, thought the
lower court’s sentence for attempted burglary was 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 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. The
guideline this Court laid in Republic v
Chizumila apply to attempted burglary and housebreaking to the extent that
offenders should expect a lesser sentence than one for the full offence.
In this matter the
trespass was not simple. The defendant and others were breaking the wall to the
house. The trespass was forceful or serious. It did involved serious damage to
premises. It was accompanied by actual violence. The defendant is offending for the first
time. The sentence of five years for attempted robbery on the circumstances of
the offence, the offender and the victim is manifestly excessive. This was not
a complete burglary. It was an attempt. The Penal Code does not create a
specific offence of attempted burglary. The lower court allowed amendment to an
attempt to commit an offence under sections 401, 402 and 403 of the Penal Code.
The maximum sentence for an attempt under consideration is seven years
imprisonment. The sentence is close to the maximum given the defendant is
young, is offending for the first time and pleaded guilty. The sentence of five
years imprisonment for burglary is inappropriate. I set it aside. I sentence
the defendant to one year imprisonment on the attempted burglary. The lower
court’s concurrent order remains
Made in open court
this
D F Mwaungulu
JUDGE