IN THE HIGH COURT OF MALAWI
SITTING AT ZOMBA
HOMICIDE (SENTENCE RE-HEARING) CASE NO 14 OF 2016
(BEING CRIMINAL CASE NO. 54 OF 2002- THE HIGH COURT PRINCIPAL REGISTRY)
LEWIS JOSEPH MANDASIX
Hon. Justice R. Mbvundula
Mtonga, Counsel for the State
Magombo, Counsel for the Convict
Mitthi, Official Interpreter
Mutinti, Court Reporter
ORDER ON RE-SENTENCING
Lewis Joseph Mandasix was tried and convicted of murder contrary to section 209 of the Penal Code in the High Court sitting with a jury in May 2002. Following his conviction he was sentenced to the then mandatory sentence of death, under section 210 of the Penal Code. That section has since been amended to render the sentence upon a conviction of murder optional depending on the circumstances of each case. This hearing is to consider whether the convict would be entitled to a lesser sentence than that of death in view of the pronouncement in the case of Kafantayeni and others v The Republic Constitutional Case No. 12 of 2005 (unreported) that the mandatory death sentence requirement under section 210 of the Penal Code (prior to its amendment) was unconstitutional, and a subsequent order in McLemonce Yasini v The Republic MSCA Criminal Appeal No. 29 of 2005 where it was ordered and directed that all murder convicts sentenced before the Kafantayeni decision should be brought before the High Court for re-sentencing .
The court is informed that the record of the trial proceedings cannot be located and the facts now placed before this court have been put together upon an inquiry pursuant to the provision of section 32 1J of the Criminal Procedure and Evidence Code. The said inquiries reveal that the murder of the deceased was carried out during a robbery. The accused was accompanied by others and had intended to steal from the deceased proceeds of his sugar cane business. It was in the course thereof that the deceased was hacked in several places with a panga knife which resulted in his death.
Both sides submit that a sentence of imprisonment rather than death or life imprisonment is appropriate in the circumstances of this case. The state seeks a sentence of 30 years imprisonment whilst for the convict a sentence of no more than 25 years is sought.
The state cites the following aggravating factors which it submits warrants the sentence it seeks:
1) The gravity of the offence;
2) That it resulted in the loss of life of a productive member of the society;
3) That the offence was committed by a group, which points to the fact that the same was carefully planned;
The state acknowledges the fact that the convict has been in custody for twenty years and that this should be taken into account.
I accept the submission of the state.
On behalf of the convict the following factors were cited as being favourable to him:
1) At the time of the commission of the offence the convict was around thirty years old;
2) He is a first offender;
3) That on recent inquiry it has transpired that the convict has reformed in terms of his behaviour and that his conduct in prison is exemplary and has acquired certain skills which would enable him carry out some meaningful and perhaps profitable activities if released;
4) That, again from inquiries, the convict was not disposed to violent conduct before the commission of the offence and a was person of good character;
5) It is also said, contrary to assertions made by the state, that members of his community would be willing to welcome him back in his village;
6) Finally, that in the absence of the trial record the court is not in a position to fully appreciate what transpired during the incident in question, in which case there is doubt as to how the offence was committed, which doubt should be resolved in favour of the convict, and that the court should consider not treating the affidavit of the state, on the alleged facts of the case, or, in any event, that the court should not treat them as aggravating factors. Counsel for the convict nonetheless acknowledges that at the present stage of the proceedings an opportunity does not avail the convict to challenge his conviction, a correct observation.
I have had occasion to go through the several cases reviewed by Kamwambe J, in his judgment in the case Republic v Yale Maonga Homicide Rehearing No. 29 of 2015, which affords meaningful guidance as to the sentencing trends in cases such as the one at hand, and I have considered the facts of this case against that background. Guided thereby I come to the position that a fitting sentence given the circumstances of this case would be 26 years imprisonment. As such I hereby sentence Joseph Lewis Mandasix to that term of imprisonment to take effect from the date of his arrest.
Pronounced in open court at Zomba this 25th day of May 2017.