R v Chepe (Confirmation Case 138 of 2021) [2023] MWHCCrim 14 (8 March 2023)

Seen REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI --- MZUZU REGISTRY CRIMINAL DIVISION ~ CONFIRMATION NO. 138 OF 2021 (Being Criminal Case No. 12 of 2020 FGM Sitting at Likoma) THE REPUBLIC AND DOUGLAS CHEPE Coram; Hon Justice C. P. Kamowa DY DA ALTOS, sg cscecsen mince sR G08 emote RES comcemn AN Gre commese HES Counsel for the State, Tig MBH hes gscccisssnnrn ne 258 Gre ammcne RES YEN emmme UERGE Hen od BOIE Counsel for Accused E,W Bipecas wnne RGR es came TAY Pirewe enone Bie ews neale pRB ee omen Court Clerk By LHAIG As sq esn cecilia gggewnee mci Ope meee aedlRy Beceem concen Bl Recording Officer ORDER ON CONFIMATION 1. The convict Douglas Chepe was charged and convicted after a full trial of Rape contrary to s. 133 of the Penal Code and was sentenced to 9 years IHL. 2. The facts are that on the 3"! day of December, 2020 around 23:00 hours at Makulawe in the district of Likoma the convict had unlawful carnal knowledge of a female Angellina Tepeka without her consent. 1 3. The aggravating factors are the seriousness of the offence, and he committed the offence while the victim was asleep. The mitigating factor is that the convict is a first offender. 4, The issue is appropriate sentence. The law in s.133 Penal Code the punishment for Rape is death or imprisonment for life. The sentencing guiding principle is that punishment should fit the criminal as well as the crime, be fair'to society and be blended with a measure of mercy according to the circumstances see Rep. V. Shauti Confirmation Case No.175 OF 1975. In Rep. v. Phiri Confirmation Case No.777 of 1994 unreported cited in Rep v. Tobeti Makuluni Confirmation Case No. 276 of 2001 unreported (HC) J. Mwaungulu laid down the guidelines in cases of Rape. He stated that the sentencing Court must regard whether violence was used over and above the force necessary to commit the Rape, whether a weapon was used to frighten or wound the victim, the rape is repeated, the rape has been carefully planned. The defendant has previous convictions for rape or other serious offences of a violent or sexual kind, the victim is subjected to further sexual indignities or perversions, the victim is either very young or very old and the effect upon the victim, physical or mental. Further J Mwaungulu adopted the guideline laid down by the Lord Chief Justice in Rep. v. Billam (1986) 82 Cri. App. R. 347: ‘‘For rape committed by an adult without any aggravating or mitigating features a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together. Or by aman who has broken into or gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has carried out what might be described as a campaign for rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate. Where the defendant’s behavior has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain in danger to women for an indefinite time, a life sentence will not be inappropriate. ’’ In Rep. v. Andrew Chagaga Criminal Case No.8 of 2021, the convict was a police Officer who raped a young lady in the course of duty at a police station and was sentenced to 30 years IHL. In Rep v Rex Mofolo Confirmation Case Number 1489 of 2004 it was stated that the courts should consider the fact that we are living in very dangerous times where chances are very high for rape victims to contract HIV/AIDS. The court directed that rape should be severely punished and the starting point should be five years as a minimum even if there are mitigating circumstances such as being a first offender, youthful age and pleading guilty. 5. Considering the aggravating factor that he raped the victim whilst she was asleep I enhance the sentence from 9 years to 20 years IHL with effect from date of arrest.. Made in Open Court this JUDGE