Donnex & Ors. v R (75 of 2008) [2008] MWSC 210 (13 July 2008)
The 18-month custodial sentence was manifestly excessive given the lack of assessed value of damage and the appellants' status as first offenders; a fine is appropriate.
Source-derived case information.
- Citation
- [2008] MWSC 210
- Parties
- Appellant: Wiseman Donnex; Appellant: Kachidutsa Ng’ombeyamoyo; Appellant: Chovuta Dzayekha; Appellant: Kenala Shumba; Respondent: The Republic
- Court
- Malawi Supreme Court of Appeal
- Jurisdiction
- Malawi
- Case Number
- 75 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Sentencing, Forestry Offences, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wiseman Donnex
Appellant
Kachidutsa Ng’ombeyamoyo
Appellant
Chovuta Dzayekha
Appellant
Kenala Shumba
Appellant
The Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed was manifestly excessive
- 2 Whether the trial court erred in not considering the appellants as first offenders
- 3 Whether the trial court erred in not providing an option of a fine
Ratio Decidendi
The 18-month custodial sentence was manifestly excessive given the lack of assessed value of damage and the appellants' status as first offenders; a fine is appropriate.
Court Disposition
appeal allowed
Orders
- Custodial sentence set aside
- Each appellant to pay a fine of K2000.00
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CRIMINAL APPEAL CASE NO. 75 OF 2008 BETWEEN WISEMAN DONNEX ………………………………..1ST APPELLANT KACHIDUTSA NG’OMBEYAMOYO……………….2ND APPELLANT CHOVUTA DZAYEKHA ………………………………3RD APPELLANT KENALA SHUMBA ………………………………….4TH APPELLANT THE REPUBLIC ………………………………….. RESPONDENT AND From the First Grade Magistrate Court sitting at Salima. Being Criminal Case No. 29 of 2008. CORAM: HON. JUSTICE CHINANGWA,J. Appellants, present and Unrepresented Counsel for the Respondent, Miss K. Jere Court Reporter, Z. Mthunzi Court Interpreter, S. Baziliyo JUDGMENT The four appellants; Wiseman Donnex, Kachidutsa Ng’ombeyamoyo, Chobvuta Dzayekha and Kenala Shumba appeared before the First Grade Magistrate Court sitting at Salima on 14th March, 2008. It was on a charge of Destroying indigenous trees by making charcoal without licence contrary to section 64(A) of the Forestry Act. Particulars of the offence were that the four appellants on or about 11th March, 2008 at Thuma Forest Reserve in Salima district were found burning charcoal without licence. The appellants were convicted on their own pleas of guilty. The lower court imposed a custodial term of 18 months IHL on each appellant. The appellants appeal against the magnitude of sentence. The grounds of appeal are as follows: 1) The sentence was very heavy. 2) The court did not consider that they are first offenders. 3) There was no option of fine. In this court the appellants adopted the same grounds stated above. The State being represented by Counsel Miss Jere held the view that the sentences were on the higher side. She submitted that the maximum punishment is 2 years imprisonment or K5000 or both imprisonment and fine. She further submitted that court should consider to reduce the sentence. My starting point is that there is no assessed value of damaged forest trees. Such assessed value would helpful determine the appropriate sentence to impose. Observably the trial court omitted to request for such information from the prosecutor. There is no record that the appellants are hardened criminals who deserve custodial terms than option of fines. I hold the view that 18 months IHL was manifestly excessive. It is set aside. Each appellant to pay fine of K2000.00 Appeal allowed. Pronounced in open court this 4th day of July 2008 sitting at Lilongwe District Registry. R. R. Chinangwa JUDGE