IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case
Number 523 of 2001
THE REPUBLIC
Versus
JOSEPH MUSTAFA
In the First Grade Magistrate court sitting at
Midima Criminal case number 90 of 2001
CORAM: DF MWAUNGULU
(JUDGE)
Chimwaza,
Defendant, present, unrepresented
Kamanga, Official Interpreter
Mwaungulu,
J
JUDGMENT
The judge who reviewed
this matter set it down to consider the sentence the lower court imposed for
housebreaking. The court below convicted the defendant, Joseph Mustafa, of
burglary and theft. Housebreaking and theft are offences under sections 309 and
278, respectively, of the Penal Code.
The lower court sentenced the defendant to six years and one-and-a-half
years’ 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 21st
January 2001the complainant, Mr. John, who secured the house before going to the
market, found, when he came back, the house broken into. The intruders pushed a
rock used to secure the house and stole property from the house. The defendant
admitted the charge at the police. He pleaded not guilty in the lower court.
The defendant is 20 years old. He is a first offender.
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 the
trespass was simple. It involved just pushing a rock used to secure the house.
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 occupants
were not disturbed. The defendant is offending for the first time. He is young.
This is a above the threshold case deserving a sentence of three years
imprisonment.
The sentence of six
years imprisonment is inappropriate. The
prosecutor informed the court the defendant was offending for the first time.
The lower court, without proof of previous convictions, sentenced the defendant
on based on that defendant was convicted before. The court cannot, when passing
sentence, consider previous convictions where they were not proved. The
prosecutor having informed the court the defendant had no previous convictions,
the convictions the lower court took into account were not put to the prisoner.
They should have been put to the prisoner so that the prisoner admitted or
denied them The court could take the previous convictions, without proof, if
the defendant admitted them (See Nyirenda
v R (1964-66) ALR (Mal) 181). Short of that the prosecution should have
been required to prove the previous convictions.
It appears, however,
that the lower court acted from its own, rather than the prosecutor’s,
knowledge of the convictions. A sentencing court could, in my judgment, rely on
such knowledge acquired in the course of its judicial functions. The court
must, in my judgment, produce the records in its possession or call for those
not in its possession and put the convictions to the prisoner. One reason for
this must be so that the court is sure that the convictions re previous, in the
sense that the convictions do not relate to offences which should have been
tried together with the present case, the convictions are not remote from the
present conviction and are such as should be considered by the court (See R v Chang’ono (1964-66) ALR (Mal) 415; Rendall- Day v Republic (1966-68) ALR (Mal) 155; Republic v Faiti (1966-68) ALR (Mal) 90 R
v Chakhumbira (1964-66) ALR (Mal) 303; and Seneki v Republic (1923) 1 ALR (Mal) 639. Moreover previous
convictions are not a reason for passing a sentence higher than the one
deserved by the justice of the case based on the nature and circumstances of
the offence, the circumstances of the offender and the victim and the public
interest in preventing crime. They are a reason why leniency should not be
extended to a prisoner. There are many decisions of this Court to that effect: Bwanali v R (1964-66) ALR (Mal) 329.
There is also a Supreme Court of Appeal decision in Maikolo v R (1964-66) ALR (Mal) 584. I sentence the defendant to three
years imprisonment on the housebreaking count.
Made in open court
this 3rd Day of October 2003
D F Mwaungulu
JUDGE