Donnex &Others v R (75 of 2008) (75 of 2008) [2008] MWHC 210 (13 July 2008);

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The four appellants were charged and convicted on a charge of destroying indigenous trees by making charcoal without licence contrary to section 64(A) of the Forestry Act. The court had sentenced the appellants to 18 months custodial sentence. The appellants were appealing against the custodial sentence, arguing as follows: (1) the sentence was heavy; (2) the court had failed to consider that they were first offenders and (3) the court failed to give the option of a fine. 
The court began by noting the lack of assessed value of the damaged forest trees. It further pointed out how such information could have been useful towards determining the appropriate sentence. In setting aside, the lower court’s decision, the court held that there was no evidence that the appellants were hardened criminals who deserved custodial sentences.

The court set aside the custodial sentences on the grounds that there was no evidence upon which the lower court based the 18-month custodial sentences and that the appellants were not hardened criminals and ordered each appellant to pay K2000.00. 

The appeal was allowed. 

IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CRIMINAL APPEAL CASE NO. 75 OF 2008

BETWEEN
WISEMAN DONNEX ………………………………..1ST APPELLANT
KACHIDUTSA NG’OMBEYAMOYO……………….2
ND APPELLANT
CHOVUTA DZ
AYEKHA ………………………………3RD APPELLANT
KENALA SHUMBA ………………………………….4
TH APPELLANT
AND
THE REPUBLIC …………………………………..RESPONDENT

From the First Grade Magistrate Court sitting at Salima. Being Criminal Case No. 29 of 2008.

CORAM:   HON.JUSTICE CHINANGWA,J.
Appellants, present and Unrepresented
                  Counsel for the Respondent, Miss K. Jere
                  Court Reporter,
Z. Mthunzi
                  Court Interpreter, S. Baziliyo



JUDGMENT

The four appellants; Wiseman Donnex, Kachidutsa Ng’ombeyamoyo, Chobvuta Dzayekha and Kenala Shumba appeared before the First Grade Magistrate Court sitting at Salima on 14th March, 2008. It was on a charge of Destroying indigenous trees by making charcoal without licence contrary to section 64(A) of the Forestry Act.

Particulars of the offence were that the four appellants on or about 11
th March, 2008 at Thuma Forest Reserve in Salima district were found burning charcoal without licence.

The appellant
s were convicted on their own pleas of guilty. The lower court imposed a custodial term of 18 months IHL on each appellant.

The appellants appeal against the magnitude of
sentence. The grounds of appeal are as follows:

1)      
The sentence was very heavy.
2)       The court did not consider that they are first offenders.
3)       There was no option of fine.

In this court the appellants adopted the same grounds stated above.

The State being represented by Counsel Miss Jere held the view that the sentences were on the higher side. She submitted that the maximum punishment is 2 years imprisonment or K5000 or both imprisonment and fine. She further submitted that court should consider to reduce the sentence.

My starting point is that there is no assessed value of damaged forest trees. Such assessed value would helpful determine the appropriate sentence to impose. Observably the trial court omitted to request for such information from the prosecutor.

There is no record that the appellants are hardened criminals who deserve custodial terms than option of fines. I hold the view that 18 months IHL was manifestly excessive. It is set
aside. Each appellant to pay fine of K2000.00

Appeal allowed.



Pronounced in open court this 4
th day of July 2008 sitting at Lilongwe District Registry.



R.R. Chinangwa
JUDGE