R v Mlenje (Confirmation Case 171 of 2022) [2023] MWHCCrim 16 (26 April 2023)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CONFIRMATION CASE NO. 171 OF 2022 (Being Criminal Case No. 28 of 2022 in the SRM Court at Mzimba) REPUBLIC VERSUS FINIAS MLENJE CORAM: HONOURABLE JUSTICE G. A. GONDWE W. Nkosi, for the State W. Chirwa and B. Mkopoliwa, for the defence F. Luwe, official interpreter L. Luhanga, Court Reporter ORDER ON CONFIRMATION Gondwe, J Finias Mlenje, aged 51, of Kanyemba village, Traditional Authority Chindi, Mzimba district appeared before the Senior Resident Magistrate at Mzimba on a charge of defilement and was convicted full trial. He was sentenced to 20 years imprisonment. The particulars of the charge were that Finias Mlenje on 20" day of January, 2022, at Euthini Admare area in the district of Mzimba had carnal knowledge of W. K a girl aged 12 years. The review Judge set down the matter for consideration of enhancement of sentence. ‘he facts of the case are that on the fateful day, the victim was alone at home when the convict called her to a nearby graveyard where he defiled her and let her go. The victim breathed no word to her parents until the evening of that day when she started crying and complaining of pain in her vagina, Upon persistent questioning from her elder sister the victim revealed that the suspect had defiled her earlier that day. Issue for Determination The court is to determine if the lower court’s sentence should be enhanced. The parties’ Arguments The state filed their skeleton arguments in support of enhancement of sentence while the respondent has submitted that a sentence of 20 years imprisonment is appropriate and it should be confirmed. Determination Section 138(1) of the Penal code reads; (1) Any person who carnally knows any girl under the age of sixteen years shall he guilty of a felony and shall be liable to imprisonment for life. As can be seen above, the maximum sentence for the offence of defilement is life imprisonment. It is trite that in determining the appropriate sentence this court ought to balance the circumstances of the offence, circumstances of the offender, the victim and public interest. See R v. Shauti 8 MLR 69. The court is also mindful that the maximum sentence must be reserved for the worst instances of the offence. See R vy. Mabvuto Criminal Case No. 66 of 2009 (Unreported). Defilement is a very serious and horrible offence. It is currently very rampant and courts bear the obligation to impose meaningful penalties on perpetrators in order to adequately punish and deter current and aspiring offenders. In Republic v. Alfred Conf. Case No. 152 of 2013 (Principal Registry) (unreported), Mwaungulu, J , (as he then was) listed the following as the aggravating factors for defilement: “abduction or detention: knowledge that the offender suffers from a sexually transmitted disease; more than one offender involved in the defilement; breach or abuse of trust; persistent attack; pregnancy involved; disease transmission; transmission of a sexually transmitted disease; intimidation involved; coercion involved; drugs, alcohol or any depressant drug (barbiturates) used to stupefy the victim, vulnerability of the child; defilement done when child is asleep;” The following factors were said to be possibly mitigating: “reasonable belief (by a young offender) 3 that the victim was aged 16 or over.’ Notwithstanding that the convict is a fist offender, the immediate custodial sentence was merited in view of the seriousness of the offence of defilement. At 51 the convict was a senior citizen old enough to be the victim’s father. According to R v. Keke Confirmation Case No. 404 of 2010. He is in the category of those that deserve to face the full rigor of the sentence. He was a neighbor and therefore a familiar person to the victim. One that was in a position to provide care and protection to the victim as opposed to the harm he inflicted. His conduct smacks of sheer heartlessness. He took advantage of the girl’s vulnerability as according the medical report she had a mental deficiency and he used force in the commission of the offence. The victim suffered physical trauma as she kept crying as result of pain in her vagina. In the case of Republic y. Afete Daniel Confirmation Case No. 2123 of 2020, (Unreported), the High Court put emphasis on the devastating psychological effects of sexual violence on children and the need to have the same routinely assessed and reported to the court in such cases. Though there was no such report before the trial court, this court has no doubt that the victim in this case suffered psychological trauma as a result of the assault. A number of decided cases offer guidance on the current sentencing trend in defilement cases. The case of the Republic v. Bright Jamali Conf. Case No. 421 of 2013 (HC) (PR), Mwaungulu, J (as he then was), held that the starting point for defilement should be 14 years imprisonment, to be scaled up or down as appropriate. However, there has been a paradigm shift in sentencing for defilement cases as more recent cases show that courts are now imposing stiffer penalties in response to the rising numbers of defilement cases. This is in a bid to protect the girl child. In Rep v. Petro Billiati Conf. Case No. 509 of 2020 Justice A. Patemba enhanced a sentence of 10 years to 40 years imprisonment with hard labour. A sentence of 14 years imprisonment was enhanced to 40 years in Fabiano Maliko v. The Republic Criminal Appeal No. 13 of 2020, (Unreported), where a 43 year old who had defiled a 10 year old girl multiple times. In Rep y. Afete Daniel), a sentence of 10 years was enhanced to 45 years tor defilement of a 4 year old. In the most recent case of Republic y. Limbikani Cosmas Mpokosa Criminal Review Case No. 30 of 2022(Unreported), delivered on 20" April, 2023, Mtalimanja, J has imposed a sentence of 45 years on a 34 year old who defiled a 4 year old child. The victim in the present case was aged 12. A sentence of 30 years imprisonment with hard labour is appropriate. It substitutes the sentence of 8 years 3 months imposed by the lower court. It will run from the date of arrest. i”