R v Nthala (Confirmation Case 122 of 2022) [2023] MWHCCrim 19 (26 April 2023)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CONFIRMATION CASE NO. 122 OF 2022 (Being Criminal Case No. 495 of 2021 in the FGM Court at Mzimba) REPUBLIC VERSUS KOMANI NTHALA 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 Komani Nthala, aged 32, appeared before the First Grade Magistrate Court at Mzimba on a charge of defiling an 8 year old girl. He was convicted following full trial and sentenced to 8 years 3 months imprisonment. The review Judge set the matter down to consider enhancement of sentence. The court heard that Komani Nthala was at the time visiting his aunt. On the material evening members of the family were chatting outside the house when the convict left them and went into victim’s bedroom where she was asleep and defiled her. It was the victim’s elder sister who found him in the act and immediately alerted her mother. When the mother went to check she found the convict leaving the bedroom naked. He was reported to police and arrested. Issue for Determination Whether or not the sentence should be enhanced. Submissions from the Parties It has been argued by the respondent that the court should consider his youthful age and that he is first offender. The state on the other hand has invited the court to enhance the sentence considering the seriousness of the offence. 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 v. 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 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 trial court duly considered the fact that the convict was a first offender and 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. In this review the respondent has invited through Counsel this court to be mindful that he is a first offender. The case of Rv. Kamil and Youngi [1997] ALR Mal 358 was cited. Counsel for the respondent has further submitted that the court considers the convict’s youthful age. The lower court’s record shows that the convict was aged 32 at the time of the offence. The argument to have him treated as a youthful offender does not hold water in view of the holding in Rep v. Keke Confirmation Case No. 404 of 2010. He must face the full rigor of the sentence. The responded further cited the cases of Bamusi v. Rep Criminal Appeal No. 29 of 2010 where the court reduced a sentence of 8 years to 5 years for an offence of defilement; Rep v. Pius Mbewe Confirmation Case No. 123 of 2010 where a sentence of 13 years was reduced to 7 years for a first offender who had pleaded guilty, Akimo Ng’ambi v. Rep. Confirmation Case No. 207 of 2010 where the court reduced a sentence of 13 years to 6 years owing to the offenders youthful age. These cases have offered very little guidance to this court as they are not in tandem with the current sentencing trend for defilement cases. When making submissions Counsel must be alive to the paradigm shift in sentencing in defilement cases and make their case in the rightful context if they must be of help to the court and ultimately to their client. The state has submitted that the court should consider the seriousness and pervasive nature of the offence of defilement; and society’s revulsion for such conduct. The convict was a cousin to the victim. Given the age gap he should have been a source of protection and safety for the innocent and vulnerable little girl. On the contrary, he became the predator that preyed on her when she was asleep. 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. A number of comparable cases have been cited by the state in a bid to assist this court in arriving at an appropriate sentence. 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 (High Court, Principal Registry), the court substituted a sentence of 14 years with 30 years for a 20 year old who had defiled a 3 year old child. These demonstrate the current sentencing trend in defilement cases and they represent the usual sentences in these times. Regard being had to the aggravating factors present in this case, the lower court’s sentence of 8 years and 3 months is substituted with one of 25 years imprisonment. It will run from the date of arrest. It is so ordered. Oe Made in Open Court at Mzimba on this .24?..day of April, 2023. Gladys A. Gondwe JUDGE