State v Mfune and Others (Case Number 29 of 2023) [2023] MWHCCrim 13 (20 November 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CRIMINAL DIVISION CASE NUMBER 29 OF 2023 THE STATE VS. CHIMWEMWE MFUNE, MASTER MFUNE, SHADRECK MFUNE, ZAULENDO MFUNE, ABEL KUMWENDAM DANIEL MBEWE, FRANK CHRWA AND MICHEAL MFUNE CORAM: Honourable Justice J. A. Kishindo Mr W. Mkosi, Counsel for the State Mr. C. Kambalame, Counsel for the Appellant Mrs. Fishani Mwakhwawa Luwe, Court Clerk Mrs. J. N. Chirwa , Court Reporter Kishindo J, JUDGMENT On 13" July, 2023, Counsel for the Appellants informed this court that the Appellants had withdrawn their appeal against conviction and will proceed with the appeal against sentence only. The state are aware of this development and they have no objection to this court considering only the question whether the sentence of eight years’ imprisonment with hard labour for Arson, contrary to section 337 of the Penal Code, is manifestly excessive. The Appellants were convicted by the First Grade |Magistrate’s court sitting at Rumphi on three counts of arson after a full trial. The Appellants were sentences to six years’ imprisonment with hard labour on the first count; eight years’ imprisonment with hard labour on the second count; and four 1 years’ imprisonment with hard labour on the third count. The sentences started running on 2™ February, 2023. The Appellants contend that the sentence of eight years’ imprisonment with hard labour is manifestly excessive for first offenders who never violated any condition of their bail while waiting for the conclusion their trial. The appellants also take issue with the fact that young and old offenders received the same punishment. The maximum penalty for arson is imprisonment for life. This is a very serious offence. The lower court was of the opinion that the Appellants, despite being first offenders, deserved custodial sentences on the basis that: (a) The Appellants engaged in mob justice. They took the law into their own hands by attempting to punish the appellants for crimes that had not been proven before a competent court of law. (b) The appellants planned the arson. They had time to buy petrol for use in igniting the fires that burnt down the complainants’ homes. (c) None of the complainant’s’ property, including maize, survived the fire. The complainants instantly became homeless and hungry with no guarantee as to where they would get their next meal. (d) The Appellants’ offer to rebuild the complainants must not affect the sentence. Rebuilding the complainants’ houses was the only right thing to do in the circumstances but the appellants must still be seriously punished. This court has no good reason to disagree with the lower court. When people of previous good behaviour decide to enter the world of crime in grand style, they should not be surprised when they are met with the full force of the law. The fact that they are first offenders cannot be a good excuse. Cases of arson, no matter how minor, are always frowned upon by courts. Society, through the legislature, agreed that arson is a very serious offence and provided for life imprisonment as the maximum penalty. This court agrees with the appellants that the sentence is harsh but this court is of the opinion that the sentence is not manifestly excessive to warrant a reduction. The appeal fails and the sentences are confirmed. J. A. Kishindo JUDGE