R v Botha (Criminal Confirmation 429 of 2018) [2020] MWHCCrim 26 (15 July 2020)

The Republic v Chifundo Botha Criminal Confirmation Case No. 429 of 2018 MzHC IN THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU REGISTRY: CRIMINAL DIVISION CRIMINAL CONFIRMATION CASE NO. 429 OF 2018 (Being Criminal Case Number 221 of 2017 before the First Grade Magistrate sitting at Mzimba) The Republic Vv Chifundo Botha Coram: Honourable Justice DeGabriele Mr. W. Nkosi for the State Mr. W Chirwa for the Defendant Mr. L. P. Chanza Court Clerk Mrs. JR. Luhanga Court reporter DeGabriele, J ORDER ON CONFIRMATION 4. The Defendant herein Chifundo Botha was convicted on the offence of defilement contrary to section 438(1) of the Penal Code after a full trial. The brief facts were that the Defendant had unlawful carnal knowledge of a child below the age of 16 years. He was sentenced to 6 years imprisonment with hard labour with effect from 19 May 2017. 2. The Reviewing Judge confirmed the conviction but set down the matter to consider enhancing the sentence. The State submitted that the sentence should be enhanced because the Defendant who was 21 years old used force in the defiling the child A The Republic v Chifundo Botha Criminal Confirmation Case No, 429 of 2018 MzHC aged 13 years old. The State further submitted that the Defendant had taken the child to the bush where he defiled her. She then ran away when he tried to defile her again. The Defendant was arrested by the people. 3. Counsel for the Defendant submitted that the sentence should not be enhanced but confirmed because the Defendant being 21 years of age at the time of the commission of the offence, would adequately be reformed by the sentence of 6 years as meted by the lower court. 4. While the age of the offender is a consideration, it is not a mandate that when a person who young and below the age of 25 commits a heinous offence, he ought to automatically be handed down a short custodial sentence. The sentencing court must exercise its mind in arriving at an appropriate sentence through the process outlined in the law, in particular sections 337, 339 and 340 of the CP&EC, where different sentencing options are outlined. The sentencing court must further look at the specific provision of law outlining the offence and its punishment, the sentencing trends as shown in decided cases, any guidelines developed on sentencing processes, and use its own discretion to pass an appropriate sentence after weighing mitigating factors against aggravating factors. In this case a custodial sentence was appropriate. 5. The sentencing court must not automatically impose a short sentence because the offender is young. It is inexcusable for such an offender to reap the benefits of age consideration when the manner in which the offence was committed showed his predatory nature. The decisive factor is the magnitude of the crime and the age of the victim. The age of the offender can only be a mitigating factor in reducing the sentence in cases where the ditference in age between the victim and the child is not wide, like in cases where the offender and the child under the age of 16 years have an adolescent relationship. However, in all other cases, the age of the offender becomes an aggravating factor in enhancing the offence, precisely because of the imbalance of power and that the older person should have known better. 6. In terms of guidelines, the Magistrates’ Court Sentencing Guideline, 2017 recommends a starting point is 10 years imprisonment which can be adjusted upwards ofr downward depending on aggravating or mitigating factors. The circumstances of the commission of the offence and the age of the offender in a The Republic v Chifundo Botha Criminal Confirmation Case No. 429 of 2018 MzHC defilement case should really lead toa reluctancy by the sentencing court to impose a sentence below 10 years. Further, in cases of defilement, there is a huge public outcry concerning the proliferation of incidences of defilement and against the lenient sentences courts are perceived to be imposing. That is why it is essential that a well- reasoned sentence be imposed, and the sentencing order should outline a clear process on how the sentence has been arrived at. However, in view of the maximum sentence as indicated in the law, sentences imposed must be meaningful, reflecting that outlined maximum sentence and public interest to prevent crime. 7. The Defendant herein was a first offender and ordinarily, first offenders deserve the minimum sentence of the offence they have committed unless there are some aggravating circumstances that will make it unreasonable for them to enjoy this benefit. In this case, the fact that the Defendant took the child into the bush and defiled her. He fully knew that what he was doing was not only wrong, but unlawful. He used force to ensure that the child will capitulate. It is not deniable that the fact of his being a first offender cannot be considered in mitigation, but the weight of such consideration should clearly be exercised in the light of the circumstances of the commission of the offence. 8. In view of his age and that he is a first-time offender, this Court is of the view that the sentence of 6 years imprisonment with hard labour as imposed by the lower court was manifestly inadequate. To this extent, the sentence of 6 years imprisonment is set aside and is substituted with one of 12 years imprisonment with hard labour with effect from the date of his arrest, which is 19 May 2017. It is so ordered. Pronounced in OPEN COURT at Mzuzu Registry this 15th day of July 2020 enact netfee JUDGE