R v Harazi (Homicide Case 32 of 2020) [2023] MWHCCrim 15 (23 September 2023)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CRIMINAL DIVISION HOMICIDE CASE NUMBER 32 OF 2020 THE REPUBLIC V. DYSON MAXWELL HARAZI CORAM: Honourable Justice Gladys A. Gondwe Waliko Nkosi, for the State Watson Chirwa, for the Accused Fiskani Luwe, Court Clerk and Official Interpreter Mrs Luhanga, Court Reporte ORDER ON SENTENCE This is the sentence following the conviction of Dyson Maxwell Harazi after he pleaded guilty to a charge of manslaughter contrary to section 208 of the penal code. The particulars of the offence are that on or about the 8" January 2020, at Zyalambe village within Ekwendeni Trading Center in the ditrict of Mzimba, Dyson Maxwell Harazi unlawfully caused the death Obrien Moyo. The maximum sentence for manslaughter is life imprisonment as per section 211 of the penal code. Under section 312 J of the Criminal Procedure and Evidence Code, the court is at liberty before passing sentence to receive such information or evidence as deems fit to be informed of the appropriate sentence to be passed. Apart from information or evidence of the accused or the prosecution, the court may also receive information or evidence by or on behalf of the victim of the offence and any reports to enable the court assess the gravity of the offence. In this regard, all the state submitted was that the convict is a first time offender. On the other hand, the convict requested to make presentations by way of written submissions. This court is grateful to defence Counsel for the elaborate submissions, particularly, for his diligence in availing this court copies of some of the cited cases. The convict indicated a number of principles which guide the court at sentencing. The over-arching one being that a sentence should befit the offence, the offender, the victim and public interest. Otherwise, a court that does not heed this principal runs the risk of imposing a disproportionately excessive sentence and this amounts a violation of the convict’s right not to be subjected to cruel, inhuman, and degrading treatment as stated in Rep v. Pose [1997] MLR 95 HC at page 96. The convict reckoned that sentencing is a matter of discretion of the court but the general principle is that the same must be exercised judicially. See Rep. v. Phiri [1997] 2 MLR 92 HC at page 93. The convict further submitted, correctly so, that maximum sentences are reserved for the worst cases of the offence. See R. Mabvuto Criminal Case No. 66 of 2009 (Unreported). It was also submitted by the convict that when sentencing convicts, in as much as sentences ought to be meaningful to convicts, courts need not only focus on the convict’s degree of liability or ghastly manner in which the offence was committed. Instead, the court should also consider amongst others the personal and individual circumstances of the offender as well as the possibility of reform and social re-integration of the convict. Thus, it is an accepted legal principle that sentences should befit the offender, and in this respect, the court should take into consideration mitigating factors that may avail the convict. This was stated in Matimati v. Rep Criminal Case Number 18 of 2007 (Unreported). The convict submitted and courts agree that the list as to what constitutes mitigating factors, is not exhaustive, but consideration is given to each case on its own facts. Among others mitigating factors will include age of the offender both at the time of committing the offence and at the time of sentencing. It is the position of the law that the young and the old find favour. The young being those between 18 and 25 and the old being the ones over the age of 60. See R V. Ng’ambi [1971-1972] ALR Mal 457. The convict further submitted that courts will also be slow at imposing long prison sentences on first offenders for fear of bringing them into contact with hardened criminals who in turn contaminate their minds thereby negatively affecting their process of reform and reintegration into the society after serving their punishments. See R. v. Chikazingwa [1984-86]11MLR 160. The convict also cited the case of Kalua v. R Criminal Appeal No. 96 of 2014, where the High Court reduced a sentence of defilement on the basis of this mitigating factor, particularly relying on section 340 of the Criminal Procedure and evidence Code, which proscribes the imprisonment of first offenders unless it is the only appropriate way of dealing with them. The convict also correctly submitted that the courts will have regard to time already spent in custody by the offender and will usually order that the sentence takes effect from the date of the convict’s arrest except where the time spent in custody was as result of the offender’s making, where they skip bail or because of unnecessary adjournments. See Mulera v. Rep [1971-1972] ALR Mal 73. The convict further submitted that a plea of guilty is another factor that goes to mitigate sentence. It is submitted that courts encourage pleas of guilt by meaningful reduction to probable or substantial sentences. The case of Rep v. Phiri and another [1997] MLR 92 was the authority cited. In conclusion, the convict submitted that a sentence not exceeding 72 moths should be appropriate in the circumstances. Determination Sentencing is an act of balancing the aggravating against the mitigating factors. The first and obvious aggravating factor in the present and all other cases of manslaughter is the irreparable loss of life. There is therefore, no question regarding the seriousness of the offence of manslaughter. In Rep v. Sanudi Bonongwe High Court Principal Registry, Homicide Case Number 199 of 2016, the court in emphasizing the seriousness of the offence referred to the decision of the Supreme Court of Appeal in Skennard Tebulo v. Rep [2007] MLR 284, where it was stated that manslaughter is a very serious offence as it violates the right to life as enshrined under section 16 of the Constitution. The sentence prescribed by law for the offence speaks to that seriousness. Courts are called to bear to mind the sanctity of life when dealing with perpetrators of such offences. The remarks of Chipeta, J (as he then was) in Republic v. Dalitso Manthuso Criminal Case no. 27 of 2008 (Unreported) are particularly instructive. He stated thus: “it amounts to an affront against the value of human life to treat a person who who has killed a fellow human being as good as the one who just stolen property worthy or amounting to a few hundreds of kwacha...” That notwithstanding, as submitted by the convict, the court reckons that the maximum sentence is reserved only for the worst instances of the offence and the one under consideration is not such. The court is also duty bound to consider the manner in which the offence was committed. The facts of this case are that the convict overheard the deceased in his 15 year old daughter’s room. When he went to check he found deceased trying to indecently assault his daughter. Upon seeing the convict, the deceased tried to run away but the convict stood on the door way to prevent him from escaping. At that point the deceased slapped the convict and then took a metal bar to hit him but the metal bar fell from the deceased’s hands and the convict picked the same and hit the deceased with it on his back. The deceased fell on the hedge bordering the convict’s and the deceased’s house. Whereupon the convict left the scene for Ekwendeni Trading center from where he was told of the deceased’s demise. According to the postmortem report the deceased’s death was caused by a damage to his lung due to bleeding following assault. From the facts of the case, the deceased was a trespasser in the convict’s house and his motive was even more disturbing as he had intended to occasion sexual violence on the convict’s 15 year old daughter. As it was stated by Kamwambe, J, (as he then was) in the case of Rep v. Belo Kemo Homicide Case No. 22 of 2010 (unreported), the convict was an intruder and he invited his own death by attempting to sexually assault the convict’s daughter in the convict’s own house. It has been submitted by the defence that the court should consider the circumstances of the case. On comparative cases the defence cited the case of Estina Msowoya Homicide Case No 23 of 2019 (unreported), where the court imposed a sentence of 30 months on the convict who had found her husband having sexual intercourse with her aunt. She pleaded had guilty to the charge. In Rep v. Bello Kemo Homicide case number 22 of 2010 (unrep.), the convict pleaded guilty to a charge of manslaughter and a sentence of 2 years 8 months was found befitting. The accused had caused the death of his wife’s lover whom he had found having sex with his wife. This case is apart from the case at hand because the court considered that the convict had not been tried for about seven years. Hence this court has not placed much reliance on it. The defence also cited Republic v. Daniel Zgambo Homicide case number 03 of 2018, where the convict was sentenced to 8 years imprisonment for causing the death of a man who was having an affair with his wife. In Rep v. Yohane Nkhope Criminal Case no. 1 of 2005, the convict who pleaded guilty to manslaughter was sentenced to 4 years imprisonment. Again in this case the convict caused the death of his brother whom he suspected of having an affair with his wife. This court also looked at the case of Rep v. Peter Jumbe (HC) (PR), Criminal Case No. 20 of 2012, where the convict had caused the death of the deceased in self- defence with the use of a metal bar. He had desired to plead guilty except for his dispute of some facts. He was sentenced to 9 years imprisonmenment. The court also considered the case of Rep v. Sanudi Bonongwe (supra). He pleaded guilty to manslaughter having caused the death of his mother. He was 19 years old. The court sentenced his to 10 years imprisonment. The court took into account the fact that the convict did not bother to render any assistance to the deceased when she fell down following the assault. This court has very well considered the fact this the convict’s first offence. That he has pleaded guilty to the charge and cooperated with law enforcement from his arrest through to the conduct of his trial. As submitted the time he already spent is custody has also been considered. On the other hand the court has also minded that this is a serious offence where human life was lost. Additionally, the convict showed indifference to the impact to the impact his act on the deceased as he neither rendered assistance nor reported to anyone to do so. Upon the deceased falling down in the hedge, the convict left the scene of the incident as if nothing serious has had happened. It is not even clear as to how from the doorstep of the convict’s house, the deceased fell by the flower hedge outside the convict’s house. Regarding age, this court finds that at 36 when the offence was committed, the convict was and remains mature enough to be expected to know better and have full appreciation of the consequences of his actions. He must face the full rigor of the law. Consideration of all the relevant factors, a sentence of 5 years imprisonment befits the offence, the offender and it serves the interests of the general public. It shall run from the date of conviction. Made in Open Court at Mzuzu this 23" day of February, 2023 at Mzuzu. Sa Gladys A. Gondwe JUDGE