Manuel v R (Criminal Appeal 39 of 2018) [2018] MWHC 1122 (2 November 2018)

.... ~~ . ~ ! (~ . . . . ;,, ', • ; i 1'1 ~ ! ; ·: ( t ~ ~ . ' , I.';\ ... , l .... \ ,\ ~ J JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL APPEAL NO. 39 OF 2018 [Being Lilongwe Criminal Case Number 737 of 2018 from SRM, Lilongwe Magistrates' Court] JOAD MATATEU MANUEL -VERSUS- THE REPUBLIC Coram: Hon. Justice M L Kamwambe Maele of counsel for the Appellant Salamba of counsel for the State Amos ... Official Interpreter JUDGMENT INTRODUCTION The Appellant was convicted on his own plea of guilty and voluntary admission of facts of the offence of being in possession of part Ill drugs without permit or licence contrary to Regulation 14 as read with section 19(1) of the Dangerous Drugs Act. The Appellant was found in possession of part Ill drugs, namely cocaine in liquid form whose volume was 2.1 litres (weighing 2.7kgs). He was sentenced to 5 years IHL. The court ordered the drug to be destroyed. The appellant now appeals against the severity of the custodial sentence. The court is called upon to consider whether the sentence was excessive or not in the circumstances. The maximum punishment for this offence is provided for under section 19 of the Dangerous Drugs Act which is a fine of K500, 000.00 (subject to conversion under the Fines (Conversion) Act) and life imprisonment. In the case of Republic v Mponya, 9MLR 275, the different approach restated by Mead, J. in Rep. v Longwe, Confirmation Case No. 372 of 1977 unreported, that: "There cannot be a scale commensurate with the quantity of the drug found in the convicted person's possession. Factors in deciding whether the sentence should be by way of fine or imprisonment, and if imprisonment its length, are whether the convicted person is a first offender, his age, the nature and quantity of the drug found in the convicted person's possession, and the intended use of the drug by the convicted person, if known." At the end of the day punishment must fit the criminal as well as the crime, be fair to the society and be blended with a measure of mercy according to the circumstances. The appellant being a first offender ought to be spared from custodial sentence. However, where the offence is one of violence and serious in nature, a custodial sentence is called for even where the offender is a first offender (Kandula Sandramu v Republic Criminal Appeal Number 31 of 2004). The maximum custodial sentence for this offence is life imprisonment which speaks for itself that it is a serious offence not to be trivialized. However, by providing the option of a fine, a court is inclined to consider granting a fine first and if it thinks a fine is not appropriate in the circumstances, a custodial sentence shall be imposed. I would advise that looking at the gravity of the offence, a fine is appropriate where the drug is in small amount, probably not exceeding a kilogram and was acquired for personal use, the offender is a young/old and first offender who pleaded guilty. In Rep v Banda [1993] 16(1) MLR 467, the High Court sitting as an appellate court, whilst confirming the sentence, held that a court of appeal would only interfere with a sentence if it was based on the wrong principle or was manifestly excessive in all the circumstances. Although the sentence meted out in this case was more severe than what this Court would have imposed, it did not produce a shock and it had not been based upon incorrect principles. Therefore, the Court would not interfere with the sentence. The court below had considered the case of Luz Mariana Benitez Roselly v The Republic, Criminal Appeal Case Number 1 of 2017, where the High Court considered a sentence of three years IHL to be manifestly excessive for the appellant who pleaded guilty, is a foreigner who was only speaking Spanish and the weight of the drug (cocaine) was 2.7 kg (similar to the weight in the present case). Sentence was reduced to 9 months imprisonment. CONCLUSION Since the convict admitted to the offence and considering the small quantity of the drug in possession, the lower court should have been lenient with the sentence. The sentence was manifestly excessive and there were no aggravating factors in this case apart from the fact that it is a serious offence. He is a first-time offender and he did not waste court's time. Sentencing in drug related offences should not be based on amount only but other factors as well. Some drugs, small as they may appear, could be multiplied in laboratories and fetch quite a lot on the market. The type of the drug may thus matter. The case of Republic v Wilson Criminal Case No. 1236 of 1994 which based sentence on the quantity only of the drugs is of little authority now. In Luz Mariana Benitez Roselly v The Republic Miscellaneous Criminal Application No.1 of 2017, the Court said that 'principles of sentencing require that the facts and circumstances of each case be individually considered both in relation to the gravity of the offence at hand as well as the factors of the offender". In sentencing we should also be considering the harm that the drug of that amount is capable of doing. Cross-border crimes of this nature are on the increase now and it would appear Malawi is the preferred transit route. Courts should demonstrate that they are also assisting in fighting this scourge by meting not too lenient sentences but sentences that may deter the offender and would be offenders to offend again. I should admit that I was too lenient in the case of Luz Mariana Benitez Rosselly (supra) for the reason that she was too far from her home and that there was communication barrier. She knew that she could be arrested in any country she was passing through and the consequences thereof. She was prepared for any eventuality or hardship and more likely participated in the crime willingly. Room for lenience should be restricted to the fact that one pleaded guilty and is a first offender in Malawi as we would not know if he/she offended in another country. The Court allows the appeal and reduces sentence to 24 months. Pronounced in open court this 2nd day of November, 2018 at Chichiri, Blantyre ML Kamwambe JUDGE 5