IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 157 of 2002
THE REPUBLIC
Versus
JUKANI KHONGA
In the Second Grade Magistrate court sitting
at Nsanje Criminal case number 17 of 2002
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, Jukani Khonga, 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-and- a-half years and eight month’s
imprisonment, respectively, for the burglary and theft. The judge thought the
lower court’s sentence for burglary was manifestly inadequate because the
defendant has a previous conviction.
On the night of 23rd
and
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
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 there
is no evidence of the extent of the trespass. 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 not guilty. Even though the defendant
pleaded not guilty, this was this, in many ways, a threshold case of burglary
deserving a sentence of three years imprisonment.
The reviewing judge
suggested enhancing the sentence because the defendant has previous
convictions. Previous convictions are no reason for a sentence higher than the
sentence the offence, considering the circumstances of the victim and offender
and the public interest, deserves. Previous convictions are reason why lenience
should not be extended to the prisoner (See Bwanali
v R () 3 ALR (Mal) 329; Maikolo v R ( ) 3 ALR (Mal) 584). In any case a court
should not extend that leniency only where the offender, from the number or
frequency of previous convictions, has lost the right to leniency. The
defendant has only one previous conviction. This is a case where the right
sentence is one meriting a threshold case. The sentence of four-and-a-half
years is inappropriate. I set it aside. I sentence the defendant to three years
imprisonment for the burglary.
Made in open court
this 3rd Day of October 2002
D F Mwaungulu
JUDGE