IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation case
number 481 of 2000
REPUBLIC
Versus
CLIFFORD ZINKAMBANI
In the Third
CORAM: DF MWAUNGULU
(JUDGE)
Kalaile,
Senior State Advocate, for the State
Defendant,
present, unrepresented
Nthole,
official court interpreter
Mwaungulu,
J
JUDGMENT
The judge who reviewed
this matter set it down to consider the plea and consequently the conviction.
The
On what proceeded in
the court below, the lower court, for two reasons, should not have entered a
plea of guilty on the housebreaking count. First, the words the lower court
recorded have been considered by this Court as inadequate as a guilty plea. The
defendant in answer to the charge said, ‘I plead guilty.’ A line of authorities, the latest of which is Republic V Kachisa, Conf.Cas. No.95 of
1999, unreported, suggest that statements like ‘I admit’, ‘It is true’, and ‘I
plead guilty’ are insufficient to found a guilty plea. The principle has the
support of the Supreme Court of Appeal. In Magwaya
v Republic (1975-77) 8 MLR 323 where Skinner, C.J., approved this statement
by Bolt, J., in Smit v R (1966-68) 4 ALR (Mal) 241 at 243:
“Answers such as ‘I admit’, ‘it is
true’, ‘I do not deny’ and the like are not sufficient and it is essential,
when a magistrate is putting a charge to an accused person, that he puts to
him each and every element of the
offence and obtains a separate reply. If this is not done injustice and
misunderstanding of the true position can easily result.
Secondly, when the facts were read to him, he
qualified his earlier plea. The defendant informed the lower court that the
house was open. Burglary or housebreaking involves a breaking and entry. The
defendant’s answer was a denial of breaking and entry. The lower court should have
altered the plea to not guilty. This case can, on this aspect, be distinguished
from Republic v Kachisa on the facts.
In that case the judge set the case down for review because of a qualification
which the judge on review thought was not a sufficient defense to undermine the
plea. The Court said:
“Obviously, a qualification undermines
the plea. Not all qualifications, however, undermine the plea. Only
qualifications suggesting a defense or a substantial departure from particulars
have that effect. . . . The defendant’s qualification raised no defense to the
charge. It is no defense, except in case of duress, that one sent another to
commit a crime. The person who commits actually the crime and the one who sent
him are parties to the crime.
The facts the defendant accepted never refer
to a breaking or entry. The defective plea cannot be cured by the facts. The
conviction and sentence for housebreaking are set aside. The conviction and
sentence for theft are confirmed.
It
may still necessary to comment on the sentence the lower court passed for the
housebreaking notwithstanding that the conviction on it has been set aside. The
lower court was obviously oblivious to sentences this court approves for
burglary where, of course, the offence committed in the house is a theft.
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 enhance the sentence where more than one person
was involved in the crime and whether the defendant committed more than one
offence in the same transaction or generally where other similar offences were
committed in quick succession. Moreover the court may regard the seriousness of
the crime the defendant intended to commit when breaking and entering the
dwelling house. 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.
Made in open court
this 29th of May 2003
D F Mwaungulu
JUDGE