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  • Republic v Nangwale and another (Confirmation Case No.208 of 1999 ) | Malawi Legal Information Institute
    thought a sentence of six years imprisonment for theft of two heads of cattle was manifestly excessive The assistant chief state advocate agrees The reasons the lower court gave never justify the sentence It is a sentence which this Court should affect The lower court convicted the defendant for theft of cattle an offence under section 281 of the Penal Code The lower court found after trial that the defendant stole two heads of cattle The defendant was arrested after he slaughtered the cattle and was selling the meat at a market The defendant offended for the first time Theft of cattle at least for actual cattle is a crime for which this Court recommends immediate loss of liberty not of course to the extent the lower court suggested The lower court passed the sentence because in its opinion the offence is serious The offence s seriousness is the only reason why the lower court passed the enhanced sentence As the lower court pointed out from the maximum sentence the legislature prescribed fourteen years imprisonment the offence is in the top bracket of serious offences On the particular offence however the sentencing court must always consider the crime before it and whether it is an instance requiring a sentence close to the maximum minding that the maximum sentence is set for the worst instance of the offence which is yet to and by fiction may never occur Consequently instances of the offence further from the serious instance of the crime that merits the maximum sentence should attract sentences on the lower bracket of the maximum sentence The enquiry into the possible worse offence is not supposed to leave the court in speculating and creating fanciful possibilities The court must be able to look at the offences before it and offences
    http://www.malawilii.org/mw/judgment/high-court-general-division/2001/10 (2012-09-24)


  • Republic v Nangwiya (Confirmation Case No. 608 of 1997 ) | Malawi Legal Information Institute
    at Mbambande Bakery where he works went home to find the house broken into He lost household items worth K995 00 comprising of eight plates a wrist watch a pail a flask a blanket and a bed sheet Although the defendant pleaded not guilty he was convicted after a full trial in which a confession statement made at the Police was part of the evidence against him The defendant was therefore properly convicted in the Court below The only issue before this Court relates to the sentences passed against the defendant This was the defendant s first offence He is aged 24 years The Court below noted that the offence of burglary is a serious offence punishable with death or life imprisonment The sentence passed however reflected very little of that observation and in fact ignores the trends that this Court has established I recognise the practical difficulties that there are in arriving at a proper sentence in each case There is no scientific relationship between criminality reflected in the state of mind required and actual act under the penal provision and the sentence to be imposed The Court must in each case hazard the sentence which in its best judgment meets the justice of a particular case In so doing the sentence passed must be just to the offender the offence and the victim and should reflect the public interest in prevention of crime The sentencing court does well to look at the nature of the offence the personal circumstances of the offender and the effect of the crime on the victim The sentence passed is to be looked at in the light of sentences normally imposed for the crimes in similar circumstance by that court or courts of concurrent and superior jurisdictions This Court for a long time
    http://www.malawilii.org/mw/judgment/high-court/1997/18 (2012-09-24)

  • Republic v Nankhope | Malawi Legal Information Institute
    constitutes the offence On the facts the lower court found the mental element was established The facts established several intentions fraudulent ones under section 271 2 of the Penal Code The State however had to prove the act constituting the crime of theft or attempted theft Our Criminal law recognises two acts which with the appropriate mental element constitute theft The commonest is asportation If a man with a fraudulent intent move however slightly any thing capable of being stolen at common law he was guilty of larceny This is what is covered by section 271 2 of the Penal Code by using the word takes The other act is conversion Section 271 2 uses the word converts There is no real difference between this word and the word appropriate used in section 3 of the Theft Act 1968 in England Section 3 of the Penal Code provides This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it shall be presumed so far as is consistent with their context and except as may be otherwise expressly provided to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith The understanding of both words in English Criminal Law informs this court when interpreting the Penal Code Normally conversion and appropriation imply lawful taking in the first place Of the facts there was no taking Consequently there could have been no conversion or appropriation without the taking There was no taking or conversion to constitute theft This court has to decide whether these facts prove an attempted theft Attempted theft has not been defined under the Penal Code The state relies on the definition in section 400 of the Penal Code The lower court did not rely on section 400 in defining the crime It relied rather on this Court s definition in Chilunga v Republic 1968 1970 ALR Mal 338 Neither there nor in other cases where this Court has defined an attempt has there been construction of section 400 of the Penal Code In Chilunga v Republic and other decisions this court has followed the English decision of R v Eagleton 1855 Dear C C 515 In England there was another decision of the Court of Appeal in Davey v Lee 51 Cr App R 303 The two lines of authority proffered different results In England the matter was normalised by passing of the Criminal Attempts Act 1981 In R v Gullefer 91 Cr App R 356 Lord Lane C J in the Court of Appeal said that the law was now as stated in the Criminal Attempts Act 1981 The Lord Chief Justice said The first task of the court is to apply the words of the Act of 1981 to the facts of the case The decision was followed in R v Jones 91 Cr App R 353 Lord Justice Taylor stated at page 354 that the correct
    http://www.malawilii.org/mw/judgment/high-court/2000/9 (2012-09-24)

  • Republic v Napolo and Others | Malawi Legal Information Institute
    before the First Grade Magistrate The facts supporting the plea are simple The three defendants were at Thyolo prison on suspicion of a robbery On 11th April 1999 they escaped from Thyolo prison They used a saw to break the prison s burglar bars The police arrested them several days thereafter The defendants admitted the matter at the police They as we have seen pleaded guilty before the Thyolo First Grade Magistrate The defendants were unrepresented in the lower court They made the mitigation statements themselves They raised very serious points Most important is that the police injured all of them all of them seriously in the shooting when the police affected the arrest The circumstances of the arrest are not just as they were not in the court below before this Court The aspect must therefore be interpreted favourably for the defendants The Court has to consider such injury when sentencing the defendant The sentencing court may ignore such injuries if the defendant fires at the police or if the injury was necessary to affect an arrest where the prisoner resists the rearrest The First Grade Magistrate correctly in my view considered the defendants guilty plea and that the defendants were first offenders The First Grade properly ignored the domestic matters that the defendants raised The First Grade Magistrate had these considerations in mind when imposing fines for the offence Courts should not normally impose a fine for escape from custody Although a misdemeanour courts should impose immediate custodial sentences for escape from lawful custody Escape from custody is a serious matter Offenders should not think that at the payment of money they can escape from lawful custody They should know that if they escape custody they are likely to go to prison for it This court to express its opprobrium normally orders an immediate prison sentence to run consecutively rather than concurrently with the sentences on the substantive offences to express Those who escape from prison should expect to serve immediate custodial sentences Fines should really be the rare thing Probably on the factors raised in mitigation the lower court had difficulties with the appropriate non custodial sentence It is unnecessary to consider that here The reviewing judge queries the default sentence It is useful to inform most magistrates about section 29 of the Penal Code and the recent amendment to it The First Grade Magistrate never considered the section or the amendment It is usual for courts at that level not to have access to recent amendments The amended provision is SECTION 29 3 OF THE PENAL CODE AS AMENDED AMOUNT PERIODS Not exceeding K100 1 month Exceeding K100 00 not exceeding K1 000 3 months Exceeding K1 000 not exceeding K3 000 6 months Exceeding K3 000 not exceeding K5 000 8 months Exceeding K5 000 12 months The court should unless the penal section provides otherwise impose default sentences according to this section The First Grade Magistrate imposed a default sentence beyond what the law
    http://www.malawilii.org/mw/judgment/high-court/2000/16 (2012-09-24)

  • Republic v Nasho and Another (128 of 2007) | Malawi Legal Information Institute
    HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CRIMINAL APPEAL NO 128 OF 2007 BETWEEN FELIX NASHO 1 ST APPELLANT JACKSON DAMISON 2 ND APPELLANT VS THE REPUBLIC RESPONDENT CORAM HON JUSTICE A K C NYIRENDA Kadzakumanja Counsel for the Applicants Miss Jere Counsel for the Respondent Mrs Kabaghe Court Reporter Kaferaanthu Court Interpreter JUDGMENT The appellant pleaded guilty to a charge of breaking into a building and breaking a felony contrary to section 311 of the Penal Code He was accordingly convicted and sentenced to 20 months imprisonment with hard labour He now appeals against sentence The gist of his appeal is that being a first offender and having pleaded guilty the trial magistrate should have addressed her mind to sections 339 and 340 of the Criminal Procedure and Evidence Code She did not as a result imposed a sentence which is felt to be manifestly excessive The items stolen were recovered in full Indeed I bear in mind what has been submitted on behalf of the appellant He showed remorse and regret by pleading guilty I must say however the circumstances of the offence speak for something more serious The appellants had prior knowledge of the place where they
    http://www.malawilii.org/mw/judgment/high-court/2008/55 (2012-09-24)

  • Republic v Nazombe (App on Criminal Case 153 of 1997) | Malawi Legal Information Institute
    conviction was not previous The defendant had already been arrested for this offence He escaped from the hospital where he was being treated for the injuries inflicted on him by the complainant He was convicted for escape from lawful custody This is the matter which was being put as a previous conviction To amount to a previous conviction the offence must have preceded the offence under discussion The court does not look at the date of conviction Seneki v R 1923 61 1 ALR M 630 The escape from lawful custody was committed after the offence under discussion was committed Even if it was considered a previous conviction it should have been ignored for purposes of sentencing the defendant in the case under consideration Where an offender has previous convictions for offences not the same in nature as those for which he now is being sentenced the court may ignore the previous convictions There is very little if anything between the offences which the defendant stood sentence and escape from lawful custody The criticism of the reviewing judge and the approach which the court below took of the matters before it are premised on the injuries that the complainant suffered when affecting the arrest The defendant was not charged with any offence relating to the injuries The prosecution chose not to The question which immediately arises is to what extent can acts constituting other offences affect a sentence on a different offence In a proper case those acts can be regarded as circumstances around the offence which the sentencer has to take into account There is however the risk of punishing an offender for offences for which he has not been charged The sentencer cannot pass a sentence on the basis that the offender on the facts is guilty of offences for which he has not been charged R v Chadderton 1980 2 Cr App R S 272 A man is entitled said Lord Justice Griffiths in R v Lawrence 1983 5 Cr App R S 220 to be sentenced for the offence to which he pleads guilty not to another offence which might well have been laid against him Much as the conduct of the defendant was despicable where the prosecution has preferred certain charges against the defendant to which the latter has pleaded guilty there must be care to avoid the impression that the defendant is not punished for offences for which he has not stood trial The sentence passed by the lower court is susceptible of such criticism Offences of burglary and housebreaking deserve long and immediate imprisonment The offences are punishable with death or life imprisonment They therefore belong to a group of offences regarded very seriously under our criminal law Besides in spite their seriousness they are very commonplace if the records of the courts are anything to go by The two offences with the related offence of theft result in many millions of kwacha of loss of property in the country each year Households
    http://www.malawilii.org/mw/judgment/high-court/1997/33 (2012-09-24)

  • Republic v Nazombe (Confirmation Case No. 687 of 2000 ) | Malawi Legal Information Institute
    without injustice 3 Where a charge is so amended a note of the order for amendment shall be endorsed on the charge and the charge shall be treated for the purposes of the proceedings in connection therewith as having been filed in the amended form 4 Every such new or altered charge shall be read and explained to the accused 5 The court shall thereupon call upon the accused to plead to the altered charge and to state whether he is ready to be tried on such new or altered charge The lower court approached the matter from that the amended charge should not be read to the defendant because the amendments were not consequential and the defendant would not be prejudiced The section just quoted makes no distinction like one the lower court introduces The section is mandatory when there is an amendment Every such new or altered charge must be read for the defendant to plead to it The question is not whether any prejudice would follow from not reading the amended charge The question is whether there has been an amendment to the offence charged Where there is amendment to the offence a plea to the original charge is not plea to the offence as amended The amended charge must be read to the defendant so that he pleads to the new offence The question for this Court is what is the effect of lack of pleading to an offence charged on the validity of the proceedings All reported cases in Malawi deal with where there was a plea and the plea was defective Decisions of this Court like R v Jailosi 1964 66 3 ALR Mal 219 Smit v R 1964 66 3 ALR Mal 241 Republic v Abraham 1971 72 6 ALR Mal 293 and Republic v Kumwenda 1971 72 6 ALR Mal 425 hold that a defective guilty plea can be cured by facts the defendant accepts as correct These cases do not deal with a situation where the defendant has not pleaded at all Under English law some cases deal with where the defendant never pleaded and trial proceeded based on that the defendant pleaded not guilty R v Tasamulug unreported April 29 1971 R v Williams 1978 QB 373 The rule where trial proceeded albeit without the defendant pleading is that the proceedings are not vitiated In R v Williams Shaw L J after reviewing the practice in England and Wales and the United States conceded that the rule thus stated is founded on the assumption that the intended plea was not guilty otherwise the trial would not follow The English cases of R v Boyle 1954 38 Cr App R 11 and R v Ellis 1973 57 Cr App R 571 consider the situation where the defendant pleads guilty In R v Ellis Edmund Davies L J stresses the need for the defendant to plead to the charge that the defendant not her counsel plead to the charge and that the
    http://www.malawilii.org/mw/judgment/high-court-general-division/2003/35 (2012-09-24)

  • Republic v Ndelemani | Malawi Legal Information Institute
    or those in charge of the criminal appeal and review list should set cases in a way that preserves the review or appeal process There is no problem where like here this Court confirms the sentence Confirmation where the judge has set the matter to be reviewed is however the exception rather than the rule Gross injustice to the prisoner or the public may be occasioned by not timeously setting the appeal or review on time This may occur where this Court intends to enhance or reduce the sentence There were many mitigating factors In this matter the defendant pleaded guilty to the charge He stole K5 000 00 at Caltex Limited where he was employed He was offending for the first time He is only 23 years of age He made his mitigation statement without legal advice He did not make the most of the opportunity All he raised are problems the children and family would have if the lower court sent him to prison The First Grade Magistrate never properly in my view considered these aspects In Republic v Asidi and another Conf Cas No 955 of 1999 unreported this Court said Imprisonment certainly involves hardship to family or dependants Courts always hear these pleas They are matters that defendants must expect if they commit crimes If courts listen to these pleas more often they will be preoccupied with the plight of the defendant s relations and ignore the crime the defendant has committed It is only where there is prospect of serious hardship to family that courts out of mercy allow for domestic considerations The First Grade Magistrate considered that the defendant was young and offending for the first time He thought however that the offence is serious and that it involved breach of trust He also thought he should pass a sentence that deters others from crime Speaking for myself I do not think that breach of trust in itself aggravates the offence of theft by servant I think the legislature had breach of trust in mind in creating this offence as an aggravated crime There are however cases where trust is critical to employment and the court has to consider its breach when passing sentence Bankers accountants solicitors or postmen and the list is endless are illustrations For these courts have been more exacting Lord Lane s C J remarks in R v Barrick 81 Cr App R 78 in the Criminal Court of Appeal in England are apposite The defendant here was in charge and custodian of the company s cash He falls in the category of those whom the law reposits trust The First Grade Magistrate was right in the way he treated the defendant The First Grade Magistrate it appears is not aware of the guidelines in Republic v Missiri Conf Cas No 1392 of 1994 This Court laid the following guideline In Malawi after looking at sentences that have been approved by this court on appeal or review I would suggest
    http://www.malawilii.org/mw/judgment/high-court/2000/19 (2012-09-24)