Kambalame v R (Criminal Appeal 39 of 2009) [2017] MWHC 30 (4 January 2017)

IN THE HIGH COURT Of MALAWI CRIMINAL DIVISION CRIMINAL APPEAL C ASE NO. 39 OF 2009 BETWEEN: KINGSTON E KAMBALAME ................. .... .. ..... .... ........ ..... APPELLANT -AND- THE REPUBLIC ...................................................... ..... RESPONDENT Coram: Hon. Justice M L Kamwambe Chimowa of counsel for the Appellant Miss J. Phillipa of counsel for the Respondent H. Amos, Interpreter KamwambeJ JUDGMENT This is an ap peal against sentence of the First Magistrate Court sitting at Dalton Court in Limbe . The Appellant, 33 year old Kingstone Ka mbalame, was on 3rd February 2009 con victed on his own plea of guilty and was sentenced to 12 years IHL. A plea of guilty is acc e pted as one of the strong mitigating facto rs regardless of the gravity of the offence unless, in the judgment of the court, such admission was made with arrogance and aban don . It is not good practic e and it would not make good law tha t those wh o commit serious crimes should be deprived of this mitig ating factor. In fact, a third of the sentence should be removed from the said sentence to benefit the offender. HI G t-1 CO -c;n~J - LIBRARY ·-- CRIMINAL DIVISION • The victim was 12 and she was made p regna nt. The younger the victim the less lenien t will the court be towards the offender. In my view, wh ere the victim is less than 12 ye ars, a sentence of 12 years and o ver will not be shocking. The Younger the victim the more punishm ent one should face. Tha t the victim was left with a pregnancy is an aggravating factor because th e pregnancy the victim p hysically and obviously disturbed psychologic ally. life of the The co urt has to consider in favour of the offe nder the fact that he was a first offender. Again, it does not matter how grave the offence is, every first offender must benefit fo r being a first offender unless in rare situations I cannot th ink o f now. At 33 I c annot say that Appellant was a youthfu l offender, but it must be ac cepted that youthfulness is a ba nd from 18 to 35 years of age. Men especially grow slowly mentally and a t 35 they are at their prime experimenting with life. The App ellant has c ited some cases such as Rep -v- Bamusi Mkwapatira Confirmation Case No. 588 of 2008 whe re a sentence of l 0 years IH L was reduced to 8 years IHL fo r d efiling a 12 year old girl on the ground that the accused was a first o ffe nder. I am not sure whether preg nancy occurred in this case and t he age of the accused is not known . In 2003 Justice Chim asula enhanced a sentence of 5 years to 8 years IHL for defiling a l 0 yea r old g irl in Rep -v- Godfrey Ndamera Confirmation case No . 31 4 200 l. In Rep -v Gibson Kaligoza Confirmation Case No. 1323 of 2005 the accused person plead ed guilty to defiling a 12 year old g irl. He was a first offender and was sentenced to 5 years IHL which was enhanced to 7 years. After weighing all the circumstances, incl udin g the issue of pregnancy, b eing a first offender young although o lder, plea of CRIMINAL DIVISION • guilty and the need to protect the girl child , I substitute the sentence of 12 yea rs w ith one of 9 years . It is so decided. Pronounc ed in Open Court this 4 th day o f Ja nuary, 2017 at Chichiri, Blantyre . ML Kamwambe JUDGE CRIMINAL DIVISION •