R v Kamoto (Confirmation Case 276 of 2017) [2017] MWHCCrim 4 (18 December 2017)

·------·--. I HIGH COURT i JUDICIARY _ ConfirmationCaseNo.276of2017 [being criminal case no. 55 of 2017, FGM, Mulanje Magistrates' Courtj _ i...l BR.t,,R 't -~ • •• • J , • ...... . J' Rep v Kamoto Conf. 276/ 17 THE REPUBLIC V KUMBUKANI KAMOTO ORDER IN CONFIRMATION nyaKaunda Kamanga, J THIS ORDER IS MADE UPON examining the subordinate court's record of the case of this criminal matter in the process of reviewing the conviction and punishment that was imposed on the defendant, Mr. Kumbukani Kamoto, who was found guilty after a trial and convicted of the offence of intimidation contrary to s 88 of the Penal Code and was sentenced to 60 months imprisonment. The brief facts of the case are that the defendant during the night of 3rct January 2017 insulted his mother his mother for almost an hour and threatened her with stabbing or death before she was tied of her feet and hands because his mother was stopping him from selling her property. The defendant was demanding and had previously stolen from his mother a share of the matrimonial property that she was given after his parents had divorced. WHILST this court confirms the conviction and; NOTING that although the offender and prosecution are absent from these proceedings this court can exercise its sentencing discretion to reduce the manifestly excessive sentence of 60 months imprisonment with hard labour that was imposed on the convicted offender for committing the offence of intimidation by the magistrates' court on the grounds that it was wrong in sentencing principle to impose the maximum sentence provided for under the penal statute. This court has noted the several aggravating factors against the 26 years old offender that were identified by the magistrate such as: the nature of threat directed at the victim, the parental relationship that is there between the defendant and the victim, the need to protect women and stop the defendant from further intimidation his mother. Further the fact that the defendant had been released from prison after serving a 6 years custodial term for the offences of burglary and theft was also worth of consideration. The trial magistrate correctly found that aggravating factors in the circumstances of this criminal matter justified the imposition of a custodial sentence. Rep v Kamoto Conf. 276/17 Under s 88(3) of the Penal Code, the maximum penalty for committing the offence of intimidation is a fine of KS O, OOO and imprisonment for either 5 years or 10 years, where the threat is to cause death or grievous hurt. Although sentencing is discretionary and is not exact science in this criminal matter it was irregular for the magistrate not indicate what he accepted and considered as the maximum penalty for the offence that he found the defendant guilty of. In the absence of such determination this court will take the maximum penalty as a fine of KS0,000 and imprisonment for 5 years. What also comes out clear in sentencing practice is that the maximum fine and custodial sentences should be reserved for the worst type of intimidation and that the court can impose either a fine or custodial term. The maximum sentence can be adjusted downwards depending on facts of the case, the aggravating and mitigating factors coupled with circumstances surrounding the commission of the offence. In Republic v Paskazio Mtonyo, Confirmation case No 44 of 2008, the defendant quarrelled with his wife over family issues which caused them to separate for a while. On 16th June 2008, the defendant whilst in possession of a panga knife, a steel rod and a spear, threatened that either his wife or her sister would die. The complainant's brothers disarmed him, reported matter to police which led to the arrest. The trial court convicted the defendant of intimidation contrary to section 88(l)(a) of the Penal Code and was sentenced to pay a fine of KS00,000 or in default to 5 years IHL. He failed to pay the fine and had to serve the custodial term. In regard to the conviction, the court found that the conduct to threaten to kill his wife or sister-in-law, coupled with the lethal weapon he carried amounted to intimidation. In regard to the sentence, the court noted that the fine conversion multiplier was wrong and should have been 100 which was equivalent to the amount ofK50 000.00. The court reduced the custodial sentence from five years to 12 months IHL. IT IS HEREBY ORDERED that the sentence of 60 months imprisonment be and is hereby set aside for being wrong in principle as the maximum sentence is reserved for the worst instance of the crime as well as being manifestly excessive and substituted with a recl.uced term of imprisonment of 24 months. Dated this 18'h day ofDec~rw;ichiri, Blantyre. Dorothy nyaKaunda Kamanga JUDGE Case information The State The Defendant Ms. Million Absent. absent/unrepresented. Court Clerk - - - - - -