THE HIGH COURT OF MALAWI
APPEAL NO. 90 OF 2007
the First Grade Magistrate Court sitting at Mkukula, Dowa being
criminal case no. 19 of 2005.
Counsel for the Respondent
Mthunzi, Court Reporter
U D G M E N T
Cosmas Kasiyafumbi appeared before the First Grade Magistrate Court
sitting at Mkukula, Dowa on 19th
December, 2005. It was on a charge of Theft of goods in transit
contrary to section 278 as read with section 282(c) of the penal
code. The value of goods was K1,986,150.00 being the property of
Farmers World Limited. He was convicted on his own plea of
and sentenced to 5 years penal servitude.
Facts narrated by
the prosecutor before the trial court show that appellant is a
professional driver. He was employed by Chifundo
World Ltd hired a motor vehicle Toyota registration no. SA 4497 from
Chifundo Haulage. The driver of that
motor vehicle was appellant.
December, 2005 appellant was assigned to deliver 400 bags of maize
and 1056 bags of groundnuts. Total value was K1,956,150.00.
commodities were to be delivered in Ntcheu and Liwonde depots. He
returned to Lilongwe. Appellant when asked about the
failed to give a satisfactory account. Put under pressure he
revealed that in conjunction with Mr Moyo and Mr Magombo
he had sold
the consignment to Mr Juma Onani in Dedza. Appellant was arrested
and charged with the present offence to which he
managed to recover K239,000. As already mentioned earlier appellant
was convicted on his own plea of guilty.
to this court on sentence only. The petition of appeal is in
Chichewa. As I understand the petition of appeal
the grounds are as
That he is a
the stolen property
is excessive in the circumstances.
appeal on 12th
December, 2007 appellant prayed that the sentence be reduced.
The state being
represented by counsel Khunga adopted the skeleton arguments by
counsel Gloria Kalebe. He submitted that the maximum
sentence in Theft under section 278 of the penal code is 5 years. He
urged court to consider reducing the sentence because
it was not the
worst in the theft category. He conceded that the state was aware
that appellant acted in breach of the trust the
employers had in him.
However mitigating factors in his favour be also considered. That
is that he pleaded guilty and a first
The first ground
to deal with is that he is a first offender. Section 340(1) Criminal
Procedure & Evidence Code deals with
a convicted first offender.
person is convicted by a court other than the High Court of an
offence (not being an offence the sentence for which is fixed
and no previous conviction is proved against him, he shall not be
sentenced for that offence, otherwise than under section
undergo imprisonment (not being imprisonment to be undergone in
default of the payment of a reasonable fine) unless it
appears to the
court, on good grounds (which shall be set out by the court in the
record), that there is no other appropriate means
of dealing with
consideration of sentence the trial court took into account the
provisions of section 340 Criminal procedure & Evidence
The mitigating factors such as the plea of guilty. The trial court
considered that in view of the large quantity of stolen
the tune of K1,986,150.00 not recovered. The only means of dealing
with the appellant was to impose a custodial term.
imposed 5 years penal servitude. It is my view that the
circumstances of the case merited a custodial term. Notwithstanding
the fact that he is a first offender.
I now proceed to
determine the second ground that he pleaded guilty. Where a criminal
offender pleads guilty it is a mitigating
factor in his favour. This
factor was taken into consideration. Refer page 13 of the court
record. The trial court held the
view that a custodial term was
The third ground
relates to the fact that the stolen property was recovered. This is
untrue, stolen property was not recovered.
Police recovered from him
K239,000 which were proceeds of sold stolen items. Of course the
trial court took this amount of money
into consideration in
Theft of goods in
transit carries a maximum custodial term of ten years imprisonment.
Refer to section 282© of the penal code.
The question I ask myself
is whether the sentence should be reduced. What is the basis for me
to do so. I also bear in mind
section 5(1) Criminal Procedure &
Evidence Code in particular regarding sentence. I take into
consideration that appellant
is a first offender, pleaded guilty and
that K239,000 cash was recovered. Against this is that a large
amount was lost about K1,700,000.00
worth of goods.
It is very clear
from the facts that appellant deliberately committed this offence.
The motive and who persuaded him to commit
it are immaterial. The
appellant has to suffer the consequences. I uphold it. The appeal
against sentence is dismissed.
PRONOUNCED in Open
Court on this 21st
day of December, 2007 at Lilongwe.
J U D G E