THE HIGH COURT OF MALAWI
APPEAL NO 102 OF 2005
CORAM : HON.
JUSTICE A.K.C. NYIRENDA
Counsel for the State
U D G M E N T
appellant appeals against both conviction and sentence on two counts,
one of house breaking and the other of theft, contrary
to section 309
and 278 of the Penal Code respectively. He was convicted and
sentenced to 2½ years for the housebreaking and 12
months for the
theft, both sentences with hard labour.
arguing his appeal against the convictions, the appellant tells the
court that he did not break into the complainants house.
there on the complainants invitation to collect the mobile phone
for him to repair at the request of the complainant.
As regards the
sentences it is submitted that they are manifestly excessive because
the appellant is a first offender and the
phone was recovered and
restored to the owner. The State is also of the view that the
sentences are manifestly excessive.
appeal against the convictions cannot be sustained. The appellant
pleaded guilty to both counts. I have myself carefully
the record. The trial magistrate was particularly detailed in
taking down the pleas. The charges were properly explained
appellant who in response said he understood the charges. The
elements of the offence were analysed to him which he admitted.
see nothing to the appeal against the convictions. I therefore
dismiss that part of the appeal. The convictions will stand.
is a serious offence. The maximum penalty under the Penal Code is
death. On a full trial our courts have imposed
around six years. On a plea of guilty the sentence range around
three years and goes up and down depending on
the circumstances of
appellant in the instant case pleaded guilty. He is a first offender
and the property stolen was recovered and restored to
the owner. We
have said time and again though that the gravity of the offence of
housebreaking is in the nature of the offence
itself and not in the
amount or quantity of property stolen although that would be a factor
to consider on the theft count. As
such I would have been very
reluctant myself to reduce the sentence imposed by the trial
magistrate were it not for the plea by
State counsel in support of
reduction of the sentences. On that basis I reduce the sentence on
housebreaking to two years and
the sentence on theft to six months.
Both sentences with hard labour and they shall run concurrently.
in Open Court at Lilongwe today the 17th
U D G E