R v Sinkhala, Simwambi and Sichela (Confirmation Case 37 of 2016) [2017] MWHCCrim 3 (21 April 2017)

; i 1e Repu/;/Jc v Estin Sinkhaia and Victor Simwambi and Jatricl< Sichela Criminal Confirmation Case No 37 0 of ...tiGH COURT j ··-~ ~~i•A•~•~ .... J MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CRIMINAL DIVISION (Being Criminal Case No. 18 of 2016 before the First Grade Magistrate Court 1 Sitting at Chitipa) Between The Republic -v- Estin Sinkhala and Victor Simwambi and Jatrick Sichela CORAM: HONOURABLE JUSTICE D. A. DEGABRIELE Mr. D. Shaibu Mr. t\J. Mdazizira Zimba Bonda Mrs Msimuko Counsel for the State Counsel for the convict Official Interpreter Court Reporter DeGabrieie, J ORDER ON CONFIRMATION The 3 convicts were convicted of the offence of cattle contrary to section 281 of the Penal Code. Th ey pleaded guilty to the charge. The 1 sta nd 3 rd convicts were handed down a prison term of 30 months iHL, while the 2nd convict was ordered to be on Probation for a period of 18 months, with effective from 26TH February 2016 , vvhich was the date of arrest. The convict stole the bu !! at night and were intend ing to se! ! it off. Th ey were arrested and th e bull was recovered. On reviev;, th e cludg e set down the matter to consider a reduction of the sentence bearing in mind the mitigating factors, which were that the bul l was recovered , the co nvicts pleaded guilty a.nd the convicts were first offenders , and the 2 nd co:wi ct was of tender age , as h e '. Nas 14 years old at the time of commission of the offence. The aggravating factors \Vere that the convict sto le from his neighbour a t night and th2t the iv1K60,000 he collected frnm a buyer of the cov.1 was never recove:·ed. - The Republic v Es/in Sinkhala and Victor Sim wambi and Ja/rick Sichela Criminal Confirmation Case No 37 0 of In its submission, the State argues that the sentences meted out were manifestly excessive in light of the mitigating factors and prays that the prison term for the 1 st and 3rd convicts be reduced from 30 months IHL to 24 months IHL. The State further prays that the probation order for the 2nd convict be confirmed. Counsel for the convicts argues that the sentences be reduced and agrees with the State that the 1 st and 3rd convicts be handed down a 24 months prison term; and that the probation order be redu ce d to 8 months. Generally, first offenders are not to be given custodial sentences, except in exceptional circumstances, see Republic v Mereka 1 ALR 201. Havin g looked at the facts and submissions before me, I am of the considered opinion that the that bearing the mitigating factors outweigh the aggravating factors. circumstances of the case, a custodial sentence is appropriate, but it must be a sentence that is "blended with a measure of mercy according to the circumstances of the case, see Republic v Shauti Confirmation Case No 175 of 1975 (unreported). I find I therefore sentence the 1 stand 3rd convict to 24 months IHL. The probation order is reduced from 18 months to 8 months, which reduction leads to an immediate release of the juvenile who is the 2nd offender. Made in Chambers at Mzuzu Registry this 21 st day of April 2017 JUDGE -