S v Mwambutsa (71 of 2006) ((71 of 2006)) [2006] MWHC 129 (20 October 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CRIMINAL APPEAL NO. 71 OF 2006


BETWEEN


WESLY MWAMBUTSA ………………………….APPELLANT

AND

THE STATE ……………………………………….RESPONDENT


From the Second Grade Magistrate court sitting at Mtakataka. Being criminal case No.40 of 2006


CORAM: HON. JUSTICE CHINAGWA

Mr. Kachule, Counsel for the State

Mr. Nkhono, Counsel for the Appellant

Mrs C. Nakweya, Court Interpreter

Miss C. Jalasi, Court reporter


JUDGMENT


The appellant Wezly Wambutsa appeared before the Second Grade Magistrate Court sitting at Mtakataka in Dedza district on 28th July, 2006. It was on a charge containing two counts. The 1st count was unlawful wounding contrary to section 241(a) of the penal code. The injured victim was Lenford Mlewa. The 2nd count was also unlawful wounding and the injured victim was Bamusi Moyo. The appellant was convicted on his own plea of guilty. He was sentenced to 18 months penal servitude.


The appellant through counsel Nkhono of Legal Aid Dept appeals against both conviction and sentence. There are 4 grounds of appeals:


  1. The learned magistrate erred in law in entering a plea of guilty on the appellant’s equivocal plea in respect of the 1st count.


  1. The learned magistrate erred in law in entering a plea of guilty on the appellant’s equivocal plea in respect of the 2nd count.


  1. The learned magistrate erred both in law and in fact in considering alleged previous conduct of the appellant when the same was not part of the statements of facts and prosecution led no evidence of previous convictions.


  1. The sentence imposed by the learned magistrate let alone a custodial sentence was excessive and wrong in law.


Facts narrated in the trial court was as follows, On 24th June, 2005 at about 7pm the complainant on the 1st count Mr Mlewa was at his house. The house is situated at Yuda plots, Mtakataka. He was selling Dairy Board goods. The appellant approached him asking for Embassy cigarettes. It is alleged that appellant was drunk. From that enquiry a misunderstanding arose which eventually developed to a fracas. The victim on 2nd count Bamusi Moyo attempted to stop, but the appellant injured him.


It should be stated at the outset that the State does not support the conviction and sentence.


Counsel Nkhono argued grounds 1 and 2 together. His argument is that the plea of guilty entered in both counts was equivocal and not in compliance with section 251 of the Criminal Procedure and Evidence Code. The appellant said in his plea that he was defending himself. Counsel argues that the trial court should have entered a plea of not guilty to allow for a full hearing. That would have enabled appellant chance to give his defence. I reproduce the plea of appellant on each count.


1st count: I understand the reading of the charge and I admit the charge. I admit to have wounded the complainant on his hand because I was defending myself. I used a bottle to wound the complainant.


Court: Plea of guilty entered.


2nd count: I admit the charge. I admit because on this one we were fighting each other.


Court: Plea of guilty entered.


We have to look at the law specifically section 251 of the Criminal Procedure and Evidence Code.


“section 251(1) when an accused appears or is brought before a court, a charge containing the particulars of the offence of which he is accused shall be read and explained to him and he shall be asked whether he admits or denies the truth of the charge.


  1. If the accused admits the truth of the charge his admission shall be recorded as nearly as possible in the words used by him and he may be convicted and sentenced thereon:


Provided that before a plea of guilty is recorded, the court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit without qualification the truth of the charge against him”


It is observed that on 1st count appellant qualified his plea that he acted in self-defence. This was not an admission of guilty. On the 2nd count the answer that “I admit” was an insufficient plea of guilty. The trial court should have entered a plea of not guilty on both counts and proceed to full trial.


Before proceeding any further it is important to this court to examine the position at law regarding a conviction resulting from a plea of guilty. This is to be found in section 348 of the Criminal Procedure and Evidence Code.


It provides:-


“No appeal shall be allowed in the case any accused who has pleaded guilty and who has been convicted by a subordinate court on such plea, except as to the extent or legality of any sentence imposed as a consequence of such conviction”


It is my view that this provision applies whenever the plea of guilty is unequivocal. In the present case the trial court ignored the appellant’s defence of self-defence which he advanced. I find that this provision has no application in the present case otherwise it would perpetuate injustice on appellant.


I proceed to 2nd ground. Counsel argues that the trial court when imposing sentence took into account matters which were not submitted by the prosecution. I have examined the pronouncement the trial court made on sentence. The relevant part reads:-


“However, the court will be lenient when passing sentence by considering his age, being first offenders and that he admitted the charge. But, however, the court is forced to impose a stiff sentence still because the offender committed similar to 2 complainants but the cases were withdrawn, I, therefore, sentence the convict to 18 months will effect from date of arrest. The sentence is subject to high confirmation.”


It is observed that the prosecutor informed the trial court that appellant was a first offender. There was no mention of known previous convictions. It is my view that the trial was not justified to take into consideration, in determining the quaritum of sentence, cases which were withdrawn.


It is also observed that the trial court imposed a single sentence for both counts. That was irregular. The trial court should have imposed a separate sentence for each count. The trial court was required to order whether the sentences were to run concurrently or consecutively and date of operation. It is also a practice to state whether the custodial term is with hard labour or light work.


In conclusion, it is my better judgment that the conviction be not allow to stand. It is quashed and sentence of 18 months set aside. I have considered section 353(2)(a) of the Criminal Procedural and Evidence Code to order a retrial, but it would not serve any useful purpose.


Appeal allowed.


Pronounced in open court on 20th day of October, 2006 at Lilongwe District.



R.R. CHINANGWA

JUDGE