IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY SITTING AT ZOMBA
HOMICIDE SENTENCE RE-HEARING CAUSE NO. 43 OF 2015
CORAM: HON. JUSTICE POTANI
Mr Dziko Malunda, of the Counsel for the State
Mr A. Majamanda, of the Counsel for the Convict
Felix Johnny Kanchiputu, Official Interpreter
In this matter Alfred Galimoto, the convict, was on November 14, 2002 convicted of murder contrary to section 209 of the Penal Code by the High Court sitting with a jury at Mulanje. He was sentenced to the then-mandatory death penalty,
The matter has bounced back to the court following the landmark decision in the case of Kafantayeni and others v Republic Constitutional case No 12 of 2005 in which mandatory imposition of the death penalty was outlawed thereby giving the court the discretion to pass a sentence commensurate with the circumstances obtaining in any given case. In the aftermath of the decision in the Kafantayeni case the Malawi Supreme Court of Appeal, the highest court in the land, ordered that all prisoners sentenced to death before the Kafantayeni decision should be brought back before the High Court for sentence re-hearing so as to afford them the opportunity to present to the court mitigating factors which opportunity they did not have at the time of their initial sentencing process.
In order to facilitate the sentences re-hearing process, the court invited the state and the convict to furnish it with any material by way of submissions and/or affidavits that they consider would assist the court in arriving at an appropriate sentence. In that regard, the state filed and served written submissions. On the part of the convict, there is on file written submissions but Counsel Alfred Mafamanda will also swore an affidavit in aid of the convict the case. The affidavit has several exhibits to it among them affidavits of the convict and Prison Warden Dennis Simaon.
It must be stated at the outset that it is a cardinal principle of sentencing that the sentence to be imposed must fit the offence and the offender. Thus, as rightly put by counsel for the state, sentencing is essentially a balancing act/exercise. In order to achieve this the court takes into account aggravating and mitigation factors obtaining in a given case. Edward Fitzgerald QC and Keir Starmer QC in their work A Guide to Sentencing in Capital Cases while acknowledging that the list of relevant aggravating and mitigating factors is not exhaustive spell out some of the relevant factors to be considered viz: the type and gravity of the murder, mental state of the convict including any degree of diminished responsibility, other partial excuses including any element of provocation or undue influence, lack of premeditation, character of the convict, remorse on the part of the convict, capacity to reform and continuing dangerousness on the part of the convict, views of the victim’s families guilty plea, and prison conditions, among others.
In dealing with the convict now before the Court, the court would wish to take cognisance of the fact that the convict was or is a first of offender and in this regard the court is mindful that Section 340 and as read with Section 339 of the Criminal Procedure and Evidence Code directs that first offenders should be sentenced to noncustodial sentences unless there are reasons, which must stated on the recorded justifying a custodial sentence. In the case at hand, the offence of murder the convict was convicted of a very serious offence as evident from the prescribed maximum penalty of death. The law provides for such a stiff penalty for the obvious and simple reason that the offence results in loss of life and as they say life is precious. Perhaps, it should be said in passing at juncture that the decision in the Kafantayeni case should not be mistaken as downplaying the seriousness of the offence of murder. The case simply gives the court room to consider any appropriate sentence befitting a given case of murder. Therefore, the court can still impose the death penalty where it is so merited. The point being made is that murder still remains a very serious offence and therefore it will be ridiculous and a mockery for the court to pass a suspended or other noncustodial sentence.
In arriving at the sentence to be imposed in this case, the court wishes to take into account the following mitigating factors. Firstly, at the time of the offence the convict was of a tender age of 23. It is the policy of the law that young offenders should as much as possible not be exposed to long imprisonment terms. Secondly, as rightly pointed out by counsel for the convict, the facts in totality tend to show that the offence was not pre-meditated and this is evident from the fact that the fight leading to the death of the deceased was largely triggered by intoxication. Thirdly, although strictly speaking the convict was not acting in self defence but in retaliation as counsel for the state has put it since the facts tend to show that the convict and the deceased were engage in a fight in which the convict suffered a wound whose scar is still visible then partially the convict can be excused although, as printed out, it cannot be said that the acted in self-defence.
As against these mitigation factors, as the court earlier stated, murder is a serious offence and in this case life was lost for good. In addition, the offence is aggravated in that the convict used a knife which the estimation of this court is a dangerous weapon.
Having thoughtful considered all the circumstances obtain in this case and the sentencing trends reflected in recently decided cases of a similar nature in a similar exercise, the convict is sentenced to 22 years imprisonment with effect from the date of his arrest being June 13, 1999.
Made this day of July 10, 2015, at Zomba in the Republic of Malawi.
H .S.B. POTANI