R v Banda (Confirmation Case 884 of 2002) [2003] MWHC 40 (5 June 2003)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY Confirmation Case Number 884 of 2002 THE REPUBLIC Versus GANIZANI BANDA In the Second Grade Magistrate court sitting at Neno Criminal case number 84 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 lower court omitted to pass a sentence on the theft count. The court below convicted the defendant, Ganizani Banda, 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 three years imprisonment for the housebreaking. On 25th September, 2002 the complainant, Ms. Mashow, who when leaving for work, secured the house, returned to find the house broken into. The complainant is a woman living alone. The complainant was away at the time of the crime. The defendant admitted the charge at the police. He pleaded guilty in the lower court. The defendant is 21 years old. He is a first offender. The lower court’s reasoning on the sentence is impeccable. 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 there is very little, if not nothing, we know about the nature and extent of the trespass. It was not accompanied by threats or actual violence. The defendant is offending for the first time. He is young. The defendant pleaded guilty. Moreover, the victim, a woman living alone, was vulnerable. Of course this aspect puts the matter above the threshold case deserving a sentence of three years imprisonment. The sentence of three years imprisonment is appropriate. I confirm it. I sentence the defendant one month imprisonment for the theft count. A court, except where it passes a preventive sentence or takes other offences into account when passing sentence, must pass a sentence for each and every offence it convicts a defendant for ( R v Ndove (1966- 68) ALR (Mal) 503; Republic v Chipyeza (1968-70) ALR (Mal) 128. Made in open court this 6th Day of June 2003 D F Mwaungulu JUDGE