John v R (Criminal Appeal 24 of 2020) [2023] MWHC 115 (20 September 2023)

HIGH COURT OF MALAWI CRIMINAL REGISTRY 20 SEP 2023 ee P. O. BOX 109 ; . ZOMBA Republic of Malawi lan qu EEE IN THE COURT HIGH COURT OF MALAWI SITTING AT ZOMBA CRIMINAL APPEAL NUMBER 24 OF 2020 (Being criminal cases number 377o0f 2021, before the Senior Resident Magistrate sitting at Mangechi ) CHIMWEMWE JOHN -Vs — THE REPUBLIC CORAM: HONOURABLE JUSTICE TEXIOUS MASOAMPHAMBE Khalif Counsel for the Appellant Msume Counsel for the State Tweya, official interpreter Mboga, Court reporter JUDGMENT 1. On the 30" of July 2021 MN (a girl child) aged 14 left her mother’s house and went to a video show with her friend. When she returned home, it was very late in the evening and her mother was not happy about it. The mother expressed her concerns to the child and the child run away. She went to meet the Appellant who took her to his house where they spent the night. In the morning, the girl’s mother went searching for her and she found her at the Appellant’s house. The girl was taken to the hospital and the Appellant was arrested on allegation that he had sexual intercourse with the girl several times during that night. 2. The Appellant appeared before the Senior Resident Magistrate siting at Mangochi where he was charged of the offence of defilement, contrary to section 138(1) of the Penal Code. He was convicted on his own plea of guilty and sentenced to i4 years’ imprisonment. The Appellant appeals against conviction and sentence on three grounds. The first ground is that, the lower Page lof5 court erred in convicting the Appellant on his own plea of guilty when his plea was ambiguous in that he told the court that “he admits the offence but with an explanation” and the particulars of the offence were not clearly put to the Appellant. The second ground is that the lower court erred in ignoring to record into the record words of the Appellant that he admits the offence but with an explanation and lastly that the sentence of 14 years’ imprisonment for a first offender who pleaded guilty was manifestly excessive. The Appellant appeals to this court and prays for a retrial or a reduction of the sentence in the case that the court confirms the conviction, . The issues before this court are: i. Whether the Appellant was safely convicted following his own plea of guilty, il. Whether the particulars of the offence were clearly put to the Appellant and whether the sentence of 14 years’ imprisonment is manifestly excessive. . The Appellant argues that when the particulars were read to the Appellant, he said “J understand the reading of the charge and I admit the offence but with some explanation”. The Appellant further alleges that the translation of the term sexual intercourse in the plea does not mean ordinarily sleeping with the victim in the house or elsewhere. They state that the Appellant told the court that he slept in the house together with the child and other people and this was not an admission of the actus reus or mens rea of defilement. The Appellant further argue that the case was not clearly put to the accused such that he did not understand the nature of his offence and the consequences of his plea. . On the sentence, the Appellant pray that his sentence be suspended because the Appellant is of a young age, he pleaded guilty to the offence and he ought to have been given a chance to present his defence. . The Respondent argues that, the Appellant is bringing new evidence in court contrary to what is on the lower court record by stating that his response was different from what was recorded by the court. The Respondent further argue that the facts as stated by the state clearly show the Page 2 of 5 elements of the offence of defilement, citing the case of Steven Kaliyati vs The Republic, Criminal Appeal Case Number 109 of 2018, in which the court stated that for defilement to be proved, there has to be unlawful carnal knowledge of a girl who is below the age of 16 years. . The Respondent argues that the sentence was not wrong in principle. The aggravating factors justifies a custodial sentence of 14 years’ imprisonment for the Appellant. Citing the case of R vs Banda, [1993] 16(1) MLR 467, in which the court did not change the sentence passed therein because it was not based on any wrong principle and neither did it produce any shock to anyone. . Criminal appeals are by way of rehearing. As stated by Justice Kalembera in Allan Kwanda vs Republic, Criminal Case Number 327 of 2017, it is trite law that when dealing with appeals from subordinate courts, the court must look at and analyse the record in the court below. During appeals, it can reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction or commit him for trial, or direct that he be retried; or alter the finding, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence; or with or without such reduction or increase and with or without altering the finding, alter the nature. This was propounded in the case of R vs Mphande, [1995] 2 MLR 586). . Indeed, a plea of guilty need not be equivocal. This was stated in the case of R vs Gama, [1997] 2 MER 34. As rightly quoted by both parties, Section 251 of the Criminal Procedure and Evidence code provides that a plea of guilty shall only be recorded by the court upon ascertaining that the accused understands the nature and consequences of his plea and intents to admit without qualification the truth of the charge against him. This court having gone through the record of the lower court, | have noted that the charge was carefully explained to the Appellant and in reply he stated as follows “J admit the charge, I plead guilty. I had sexual intercourse with the girl. She is 15 years old. I know that sex with a girl child below 16 is an offence” after this, the court recorded a plea of guilty and the state proceeded to narrate the facts of the matter. The statement of the Appellant in the lower court as recorded by the court clearly reveal an admission to all the elements of the offence of defilement (sexual intercourse Page 3 of 5 10. ll. 12. with a child of less than 16 years as was the law then). The facts as narrated by the state, also show all the elements of the offence of defilement. The other argument by the Appellant in supporting of this ground of appeal is that the Appellant did not understand his charge due to ineffective interpretation by the court and he did not understand the consequences of his admission of guilt. This court had no chance to appreciate the interpretation in the lower court, but I have noted that the record quotes the Appellant stating that “J know that having sexual intercourse with a child is an offence”. Clearly this statement shows that the court also ascertained if the Appellant understood the implications of his case and what he was admitting to. The Appellant was not represented by Counsel in the lower Court, it is not stated where the alleged statements qualifying the admission are extracted from. As alleged, it is not on record and no evidence shown or otherwise has been presented in court to confirm that indeed this was how the Appellant qualified his plea when he responded in court. It only comes in this court as an allegation, not substantiated in any way. During an appeal, the court only looks at what transpired or was omitted by looking at the record. Similarly, there is an issue on the court’s interpretation of the term sexual intercourse. It is alleged that that the Appellant did not understand the proceeding or the offence against htm. To claim that things did not happen the way they appear on record and expect this court to decide on those issues by way of an appeal is very problematic since during an appeal this court will only look at what is on record and not whether some things were recorded or not. This court will take the record as it is. For this reason, | find that the lower court did not err in recording a plea of guilty. The Appellant demonstrated understanding of the offence, he admitted to the facts which revealed the elements of defilement. Accordingly, these grounds of appeal fail. Indeed, the law does not promote the imposition of custodial sentences on first offenders. According to section 340 (1) of the criminal procedure and evidence code and good reasons must be given whenever a custodial sentence is imposed on a first offender. Defilement attracts a maximum sentence of life imprisonment and in the case of R vs Bright Jamali, Confirmation Page 4of5 Case Number 42iof 2013, Mwaungulu J, as he then was, had this to say in relation to sentencing in cases of defilement: “the starting point for defilement should therefore, based on the maximum sentence of life imprisonment be fourteen years’ imprisonment. Sentencers at first instance must then scale up and down the starting point to reflect mitigating and aggravating circumstances and that the sentence must fit the offender.’ This in itself speaks to the seriousness of the offence the Appellant committed. In recent years, courts have been imposing stiffer sentences in connection to this offence. In the case of R vs Aubrey Kalulu, Criminal Case Number 1303 of 2017, a maximum sentence was imposed on the offender. Further, in the case of Fabiano vs Republic Criminal Case Number 13 of 2020, the court enhanced a sentence of 14 years’ imprisonment to 40 years’ imprisonment on confirmation. I consider the seriousness of the offence as a good reason for ordering a custodial sentence against the Appellant although he was a first offender. 13. The record shows that the age of the accused and the fact that he is a first offender were considered in mitigation. Of course courts have shown lenience in cases where the offender is young, there was no force used and there was a plea of guilty. In the case of R vs Calvin Matabwa Confirmation Case Number /00 of 2021, the court considered a sentence of 10 years’ imprisonment to be on the lower side. Out of lenience, she enhanced the sentence to 17 years’ imprisonment. In that case, the victim was 15 years old, the convict was 22 years old, he was a first offender and claimed there was a relationship with the victim. This case sounds more similar with the Appellant’s case and I would be enhancing the sentence to 17 years’ imprisonment if the lower court record had shown that the Appellant’s plea of guilty was considered when sentencing. For this reason, the sentence of 14 years’ imprisonment is upheld as I find it appropriate in the circumstances. 14. In short, the Appeal has no merit and it is hereby dismissed. Pronounced in open court 20 September 2023, at Zomba. * Texious S. Magpamphambe JUDGE Page 5 of 5