R v Mbewe (Confirmation Case 125 of 2022) [2023] MWHCCrim 21 (26 April 2023)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CONFIRMATION CASE NO. 125 OF 2022 (Being Criminal Case No. 05 of 2022 in the FGM Court at Mzimba) REPUBLIC VERSUS MPHATSO MBEWE 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 Mphatso Mbewe, aged 22, of Sinda village, Traditional Authority Mzukuzuku, Mzimba district was convicted by the First Grade Magistrate sitting at Mzimba on a charge of defilement contrary to section 138(1) of the Penal Code, following a full trial. He was condemned to serve 8 years imprisonment with hard labour. The particulars of the charge were that Mphatso Mbewe on 1“ January, 2022, at Jenda section 5 within the district of Mzimba, had carnal knowledge of E. C, a girl under the age 16 years. The review Judge set down the matter for consideration of enhancement of sentence. The lower court heard that Mphatso Mbewe who was a popular disc jockey in the area requested the victim, aged 9, her brother aged 12, and two other children to accompany him to his sister’s 1| age house where he intended to collect speakers to be used for a music show marking New Year celebrations. Upon arrival at the said house Mphatso Mbewe took the victim to the bedroom leaving the rest of the children in the living. While in the said bedroom he defiled the little girl and while he was at it he covered her mouth with a cloth in order to prevent her from screaming. Being suspicious, her little brother who testified as PW2 alerted a neighbor who came to the house and asked Mphatso the whereabouts of the child. His response was she had left the house. Meanwhile Mphatso Mbewe had made the child to hide behind the door to the room. When the neighbor lit a torch and insisted to search the room, Mphatso sneaked out and run away. He surrendered himself to police 5 days later. Issue for Determination Whether or not the sentence should be enhanced. Submissions from the Parties The state filed their skeleton arguments in support of enhancement of sentence and they have proposed a sentence of 20 years imprisonment as fitting for the convict. Counsel for the respondent also filed skeleton arguments opposing enhancement and they have prayed to the court to confirm the lower court’s sentence. Determination Section 138(1) of the Penal code reads; (1) Any person who carnally knows any girl under the age of sixteen years shall be 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 speaks to the seriousness of the offence. It is trite that in determining the appropriate sentence the 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 offence. It is currently very rampant and courts bear the obligation to 2 | 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,” This being a maiden offence for the respondent, the trial court duly considered the cumulative effect of sections 339 and 340 of the Criminal procedure and Evidence Code and rightly came to the conclusion that an immediate custodial sentence was merited owing to the seriousness of the offence. The trial court also considered the youthful age of the offender. Except that the court was overly lenient as it did not consider all the relevant aggravating factors. In this review the respondent has invited this court to be mindful that the offender is new to crime and that that he is youthful. Counsel cited the cases of Republic v. Kathumba [1997] 1 MLR 390 and R v. Felix Madalitso Keke Confirmation Case No. 404 of 2010 where Mwaungulu, J (as he then was) made the following pertinent observations regarding age of an offender: “One most critical consideration about the offender is age. For ages between 19 and 25, commission of a crime may be a result of impetuous, immaturity, youth or adventure. A severe sentence may be perceived by a young offender as reflecting a harsh society on which to avenge. Long prison sentences for young persons may actually delay social integration to enable a young life to start a new life and lead a meaningful life. For young offenders, therefore, a short, quick and sharp sentence may achieve the ends of justice and deter future offending. ” This court totally subscribes to this view and it is indeed trite that young offenders be treated with mercy for the stated reasons. However, as already stated above the measure of mercy applied must not lose sight of the nature of offence, its impact on the victim and the interests of the general public. We have already highlighted the seriousness of the offence of defilement. The words of Prof. Kapindu, J in Brian Shaba v. Republic Criminal Appeal No. 19 of 2014 (HC), (MZ), (Unreported) are very handy in describing the gravity of this offence. He stated thus: “,,..defilement is a very serious and heinous offence. It is both a carnally and psychologically evasive offence...” The state has submitted, correctly so, that the offender being 22 and the victim 9, the age gap between them is quite wide. This was therefore an act of sheer abuse and exploitation of the child’s vulnerability. This heightens society’s revulsion for the respondent’s conduct. The victim suffered physical injury as result of the assault. It is in the medical report that she exhibited bruises in her vagina upon examination and she was visibly in pain. The psychological trauma attendant to such sexual assault in children is immense and often lingers on throughout a victim’s life leading to various psycho-social problems. Further, the convict intimidated and gagged the victim. It is for these reasons that this court opines that despite being a young offender, the convict deserves meaningful punishment. A number of comparable cases have been cited by the state in a bid to assist this court in arriving at an appropriate sentence and this is appreciated. The case of the Republic v. Bright Jamali Confirmation Case No. 421 of 2013 (HC) (PR), where 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 Fabiano Maliko v. The Republic Criminal Appeal No. 13 of 2020, Prof. Kapindu, J set aside a sentence of 14 years and substituted it with 40 years imprisonment for a 43 year old who had defiled a 10 year old girl multiple times. In Rep v. Petro Billiati Confirmation Case No. 509 of 2020 Justice Patemba enhanced a sentence of 10 years to 40 years for a 33 year old man who was HIV positive and had defiled a 9 year old girl. The convict had pleaded guilty to the charge. Ligowe, J imposed a sentence of 24 years imprisonment on a 41 year old who had defiled his 9 year old step-daughter multiple times in Republic v. Thomas Chavula Referral Case No. 1 of 2020 (High Court, Mzuzu Registry). In Republic v. Dexter Thipa Confirmation Case No. 478 of 2020 (High Court, Zomba Registry) delivered in November, 2021, Masoamphambe, J set aside a sentence of 12 years and substituted it with 21 years IHL for a Teacher who had defiled his 14 year old student. In Republic v. Lawrence Ching’oma Confirmation Case No. 21 of 2021 a|Pae (High Court, Principal Registry), the court substituted a sentence of 14 years with 30 years for a 20 year old who had defiled a3 year old child. These cases represent the current sentencing trend in cases of defilement which has guided this court, Considering the all the relevant factors Present in this case, a sentence of 8 years imposed by the lower court is manifestly inadequate and it is set aside and Substituted with a sentence of 21 years imprisonment. It wil] run from 5% January 2022, which is the date of his arrest. It is so ordered. Made in Open Court at Mzimba on this 2G .day of April, 2023. Gladys A. Gondwe JUDGE