R v Mambo and Another (Confirmation Case 503 of 2019) [2020] MWHCCrim 22 (5 June 2020)

a SouRT OF OF Mana tic \ » Pe — ~ \. The Republic v Gilbert Mambo and Pilirani Mang’anda Confirmation Case No 503 of 2019 AZFA REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY: CRIMINAL DIVISION Confirmation Case No. 503 of 2019 (Being Criminal Case Number 738 of 2019 before Principal Resident Magistrate sitting at Mzuzu) The Republic V Gilbert Mambo ............. 18 Defendant Pilirani Mang‘anda ......... 2"? Defendant Coram The Honourable Justice D. A. DeGabriele Mr. W. Nkosi Counsel for the State Ms. T. Chatupa Counsel for the Defendants Mr. L. P. Chanza Court Clerk Mrs. J. N. Chirwa Court Reporter DeGabriele, J Order on Confirmation 1. The two Defendants were convicted of the offence of illegal possession of forestry produce contrary to section 68(1)(b)(c ) as read with section 74 of the Forestry Act. The facts in brief were that on 12 November 2019, the Defendants were found with 64 fresh logs of pine trees valued at MK204,110.00 without a The Republic v Gilbert Mambo and Pilirani Mang'anda Confirmation Case No 503 of 2019 MzHC permit. The Defendants were stopped on the road at Mpaka within Chikangawa Forest Reserve in Mzimba and were ferrying the logs using motor vehicle number BLK4980 as the horse and the trailer was BLK3685. The Defendants pleaded guilty and were convicted. They were sentenced to a fine of MK100,000.00 each or in default a prison sentence of 15 months with hard labour from the date of arrest. 2. The review judge set down the matter to consider the propriety of the fine and the default sentence of 15 months imprisonment. The State is of the view that the sentence should be confirmed because the amount of fine ordered was reasonable in view of the value of the pine logs. Further, the State argued that the default judgement is within the prescribed period by law. 3. Counsel for the Defendants agreed with the State that the sentence should be confirmed. The law stipulates under section 68 of the Penal Code that a person found in possession of forest produce illegally, without permit and traffics the same, is guilty of an offence and is be liable to a fine upon conviction of K20,000.00 and to imprisonment of ten years. The Defendants herein were found guilty on their own plea of guilty and were convicted. 4. The punishment herein is both a fine and imprisonment. However, under section 29 (2) (a) of the Penal Code, the law gives the sentencing court discretion to impose a sentence in default to the payment of a fine. The discretion must be exercised judiciously, having regard to the laws on imposing fines and sentences in default, any precedent as well as aggravating and mitigating factors that surround the commission of the offence. The seriousness of the offence must also be taken into account. 5. In this case a fine of MK100,000.00 was imposed and, if the Defendants failed to pay the fine, then a default sentence of 15 months was imposed. According to section 5 (a) as read with Part | of the Schedule of the Fines (Conversions) Act of 2005, a fine prescribes by any Act of law passed in the year 1997 has to be multiplied by twenty (20). In this case section 68 of the Forestry Act prescribes a fine of MK20,000.00 which means that the actual fine is MK400,000.00 in accordance to the Fine (Conversions) Act. The lower court imposed a fine of MK100,000.00 to each Defendant. This was not excessive bearing in mind the converted fine. 6. The offence is punishable by a maximum prison term of 10 years. In this case the default prison term was 15 months which was not excessive or inadequate and was within section 29(3) of the Penal Code bearing in mind that the Pine logs were forfeited, the Defendants pleaded guilty and that the Defendants were first offenders. Accordingly, this Court finds that the lower court was within The Republic v Gilbert Mambo and Pilirani Mang‘anda Confirmation Case No 503 of 2019 MzHC the prescribed mandates in section 339 of the Criminal Procedure and Evidence Code as regards sentencing first offenders. 7. Having looked at the record of the lower court and the submissions of the parties, it is the finding of this Court that the sentence was proper and it occasioned no injustice to the Defendants. The lower court did reason its sentencing order clearly. The fine of MK100,000.00 against each is confirmed and the sentence of 15 months in default for each Defendant is also confirmed. Made in Chambers at Mzuzu District Registry this 5" day of June 2020 D. A. De! iéle JUDGE