Makasu v Teputepu (Criminal Case 7 of 2017) [2017] MWHC 62 (1 March 2017)

Sentence Re-hearing No. 7 of 2017 THE REPUBLIC -v- JACK MAKASU AND DANIEL TEPUTEPU Coram: Hon. Justice M L Kamwambe Salamba of counse l for the State Chirwa of counse l fo r the Conv ict Amos ...... Official Interpreter Kamwambe J SENTENCE Jack Makasu and Daniel Teputepu were convicted of murder and sentenced to suffer the mandatory death pe nalty by the High Court sitting at Zomba on the 25th day of Septem ber, 2005. The case of Francis Kafantayeni and others -v The Attorney General Constitutional Case No . 12 of 2005 (unreported) ordered that all convicts suffering a mandatory death sentence be re- heard on their sentences si nce the respective death sentence s were declared unconstitutional. This is the exercise being undertake n now 9 ye ars after the Kafantayeni case gave the order. The facts of the ca se are not availab le because the High Court record is missing and cannot be re trieved. This ma ke s it difficult to con sider wha t really happened at the time of commission of the crime. We will do with this limitation. All we know is that the convicts together with Makin a Pondani who was acquitted, now deceased, were involved in a night robbery which resulted into the death of Stewart Likagwa in 2001 . The particulars of the offenders are that the 1st convict Jack Makasu, is a family man with one chi ld . He worked as a mechanic in Blantyre from where he was able to send mone y back to his village to support his wife and son, Justin. He ,. . ................. , .......... , ~.,. ... :.. .... • .,·~~ 1..1n. ~ {i , ·u· . , , .. ., .... f v I ri 1 G H , .. ~,.. ... ..,"' t. ' 81 .. .. _,,,.,., ··' ,_,, . t - ' OJ,,..~ . ... . -., •• • ,, .~ .... , .. ..... _.'J ... :,, .. . ...... _ • ..... . " .... : has been on deat h row for over 11 years. He was arrested in De cember, 2001. At the time of the alleged offence the 1st convict was 27 years old. The 2nd co nvict Da niel Teputepu was arrested on 5th May, 2003 and thereaft er he spent 11 yea rs on death row. He was 28 years old at the tim e of the al leged offence. The State has come out openly that the convicts do not deserve a death sentence o r lif e im pr isonment. This excludes the imposition of death penalty. It is difficult for me to consider life imprisonment in the absence of a court record, as such, in th e circumstances it is proper to consider ter m sentence s. Maximum sentences must be reserved for the worst of offende rs in the worst of cases. In Republ ic -v- Jamuson White Criminal Cas e No. 74 of 2008 (unrepoorted) t he court emphasised that the death sentence m ust be reserved for the 'ra rest of rare' cases. The convicts being 27 and 28 respectively at the commission of the crime cannot be said to be young persons who are immatu re in the w ays of life. They were big enough to apprec iate what they were doing and the consequences thereof. In my v iew they a re past the age when one may be co nsidered for a lenient se nt ence due to young age . Since there is no record tha t Teputepu was a repeat offender I will take him as a first offender. Ja ck Makasu has put it in his own affidavit that he was arrested initially an d convicted of burglary . This will militate against him. The law favours th e young and the old. Often tim es t he court has considered the appal ling prison con ditions in Malawi w hich are declared to be below acceptable internation al standards, hence this has passed as a gene ral mitigating factor (see R -v- Chiliko Senti Sentence Re-heari ng No . 25 of 2015 . Apart from one being secl uded from society, to exper ience and live life in prison in Malawi is sure ly a punishme nt on its own . Courts should be able to consider good behaviour in prison at re sentencin g stage regardless of the fact tha t t he prison authorities shall at t he right time consider rem iss ion period. Good conduct in prison coupled wit h diligence an d capability to take up responsibilities are strong indicators that th e convict ha s reformed or is capabl e of reform and that he would integrate in the community succes sfully and be a worthy citizen. Murder is a serious offence and that should be demonstrated by a corresponding sentence. However, due to the missing file the circumstance s of the crime are not known . This should not necessarily disadvantage the convicts. Counsel for the State wants a stiffer punishment all t he same because this murder was committed in the course of committi ng a robbe ry, unlike a death after a beer squabble. In the present case there was prem editation and proper planning. A group of offenders was involved which is an aggravat ing factor. Counsel asks the court not to show lenience even thoug h the convicts may be first offenders. The court will t ake in to consideration the long stay on death row since 2005 which was really torturous experience. This is termed as "suffe ring from death row phenomenon ". This describes the anxiety, dread, fear and psychological anguish that may accompany long-term incarceration on death row . Fu rther, t he convicts we re not referred to sentence re-hearing accordin g to the dictates of the Kafantaye ni case in good time. They allowed about 9 years to pass by, which is a constitutional breach. This was unfair treatment of t he convicts. Relations of the deceased advise that they should not be releas ed soon. The State is of the view that the 2nd convict mental suffering is not reason enough justifying early release but justifies his retention in pris on since convict is near the Zomb a mental hospital. In R -v- Samuel Nzunga & others Sentence Re-hearing No 37 of 2016 the three convicts comm itted murder in the course of a robbery . They had been in incarceration for 18 years and the court sentenced them to a sentence that resulted to their immediate release due to the fact that they di d not activel y participate in the murder. In The Republic -v- Richard Nyirenda Sentence Re-hearing Caus e No.3 1 of 2016 the convict and six others committed a murder in the cou rse of a robbery/theft . They went to steal tobacco when they met the guard of Kasungu Flue Cured Tobacco Authority whom they killed . The convict had been in incarceration for just over 16 years and he was given a sente nce that resulted in his immed iate release . The court considered his little participation in the murder. In our present case t he circumstances of the case are not known . The convicts have been in custody for 11 years under death row. In view of the above I sentence the 1st convict to 27 years imprisonment as a repeat offender and the 2nd convict t o 24 years imp ri so nme nt. Pronounced in Open Court this 1st March, 2017 at Zomba . &tut_~ ML Kamwambe JUDGE