IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

Confirmation Case Number 220 of 2003

THE REPUBLIC

Versus

EVANCE KAYENDA

In the First Grade Magistrate court sitting at Soche Criminal case number 869 of 2002

CORAM: DF MWAUNGULU (JUDGE)

Chimwaza, Deputy Chief 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, Evance Kayenda, 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 three years and one-and- a-half years’ imprisonment, respectively, for the burglary and theft. The judge thought the lower court’s sentence for burglary was manifestly inadequate.

On the night of 23^rd August, 1999 the complainant, Mrs. Kadzuwa, slept after having secured the house. The intruders woke her up when breaking the house. The intruders stole property. The intruders broke the door to the house. The complainant was all alone. She shouted for help. Neighbours arrested the defendant in the house. The defendant admitted the charge at the police. He pleaded not guilty in the lower court. The defendant is 24 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 the mental component of the crime. Consequently, circumstances escalating or diminishing the extent, intensity or complexion of the actus reus or mens rea of an offence go to influence sentence. It is possible to isolate and generalize circumstances affecting the extent, intensity and complexion of the mental element of a crime: planning, sophistication, collaboration with others, drunkenness, provocation, recklessness, preparedness and the list is not exhaustive. Circumstances affecting the extent, intensity and complexion of the prohibited act depend on the crime. A sentencing court, because sentencing is discretionary, must, from evidence during trial or received in mitigation, balance circumstances affecting the actus reus or mens rea of the offence.

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 defendant offended for the first time. He is young. The trespass was forceful and serious. It involved serious damage to premises. The defendant was armed. The complainant was disturbed during the crime. The defendant pleaded not guilty. Moreover, the victim, a woman was all alone the house. This aspect and that the defendant was armed puts the matter above the threshold case deserving a sentence of three years imprisonment. The sentence of three years imprisonment is manifestly inadequate. If the defendant was present, I would have enhanced the sentence. I confirm it.

Made in open court this 3^rd Day of October 2002

D F Mwaungulu

JUDGE