IN THE HIGH COURT OF MALAWI
Confirmation Case Number 530 of 2000
In the First Grade Magistrate court sitting at Soche Criminal case number 733 of 2000
CORAM: DF MWAUNGULU (JUDGE)
Kalaile, State advocate, for the state
Defendant, present, unrepresented
Nthole, Official Interpreter
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, one Sinki Chikopa , 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 four years and one year imprisonment, respectively, for the burglary
and theft. The judge, correctly in my view, thought the lower court’s sentence for burglary was manifestly excessive.
On the night of 2nd and 3rd March, 2000 the complainant, Ms. Banda, who when sleeping secured the house, woke up to find the house broken into. The intruders
broke and entered through a window and stole property from the house. The complainant is a woman living alone. The complainant was
asleep at the time of the crime. The defendant admitted the charge at the police. He pleaded guilty in the lower court. The defendant
is 18 years old. He is a first offender. The lower court’s reasoning on the sentence is impressive. The lower court regarded
this Court’s direction in Republic v Chizumila Conf. Cas No. 316 of 1994, unreported. The lower court, following this Court’s
direction in Republic v Mkwate [1973-75] 7 MLR 407, decide, correctly in my judgment, that the sentence for burglary would be custodial.
The lower court considered the seriousness of the offence from the standpoint of the sentence Parliament prescribed, the age, that
the defendant committed the offence for the first time and the guilty plea.
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 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 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 trespass was simple. It involved breaking a window. The trespass was not forceful or serious. It did not involve
serious damage to premises. It was not accompanied by threats or actual violence. The defendant is offending for the first
time. He is young. The defendant pleaded. This aspect distinguishes this case from Republic v Tembo Conf. Cas. No. 726 of 2000,
unreported. Moreover, the victim, a woman living alone, was vulnerable. This aspect puts the matter above the threshold case deserving
a sentence of three years imprisonment. This was, in many ways, the threshold case where, for purposes of consistency, this Court
approves three years imprisonment. The sentence of four years imprisonment with hard labour is inappropriate. I set it aside. I sentence
the defendant to three years imprisonment.
Made in open court this 3rd Day of October 2003
D F Mwaungulu