R v Muyatso (Confirmation Case 622 of 2021) [2022] MWHCCrim 117 (6 December 2022)

ch REPUBLIC OF MALAWI HIGH COURT OF MALAWI CRIMINAL DIVISION CONFIRMATION CASE No. 622 of 2021 Being Criminal Case No. 128 of 2021 in the FGM Court Blantyre Central BETWEEN THE REPUBLIC AND STEPHANO MUYATSO.\....ccccccccctccncsseneeseeensesereneneeseneeeensecereenansenes CONVICT CORUM: HONOURABLE JUSTICE CHINANGWA Kulesi State Advocate Penama Legal Aid Advocate Convict Present Amos Court Clerk ORDER ON CONFIRMATION i. The convict was convicted on a plea of guilt with the offence of defilement contrary to section 139 of the Penal Code. The facts presented by the court below were as follows: ‘ The complainant is Tiwonge Wonderford. During August 2021 in the evening hours when the victim was coming from where she was chatting with her friends, she met -aceused who is her in-law. As she was passing a certain bush accused held her hand and pushed her into the bush and forced her to have sexual intercourse and they indeed had sexual intercourse and was bleeding heavily but victim was warned never to reveal. She was given K500. After some days the accused also had sex with the girl and she i never revealed but the parents were surprised with the girl’s movement and was taken to Matandani Mission Hospital where she was given pain killers. Later the victim started producing smell and discharges and rumours started spreading in the village and the matter was reported at Neno Police where the girl was taken to Neno district hospital and was diagnosed with syphilis. The accused was arrested and cautioned. He was formally charged and he admitted. The accused was called for examination at the hospital for examination and he was also found with syphilis’. 2. The convict admitted the facts as presented by the State. A conviction was entered on the accused own plea of guilt and admission of facts on the offence as charged. A sentence of 14 years was pronounced. 3. This court is seized of the matter to determine the propriety of the conviction and enhancement of the sentence. 4. During the hearing for enhancement of sentence the mitigating factors raised were that the accused is a first offender and he pleaded guilty. The aggravating factors listed were that: the victim forced himself into the victim; injury to the victim, infected the girl with syphilis; psychological trauma; breach of trust as the victim was his in-law; the offence is common and serious offence attracting life imprisonment. 5 ‘The lower court found that the convict was deserving more than 14 years because the aggravating factors outweighed the mitigating factors. This court cannot agree less. The victim is 13 years old. What she went through is beyond comprehension. Though the convict is youthful at age 26 and is on record as a first offender passing a non-custodial sentence would go against the sentencing principals. In Rep v Phiri and another 1997] 2 MLR 92 (HC) it was held that a court should pass comparable sentences. Recent decisions have shown an increase in sentences in defilement cases. On average a 40-year sentence is passed where the victim is of tender age despite the convict being a first offender. This is simply a recognition of the fact that the crime is horrendous. Prison statistics show that defilement cases have tremendously increased. As the lower court observed the convict infected the young girl with a sexually transmitted disease, he was a close relation and defiled her twice. The convict is simply heartless and pounced himself on the young girl to achieve a personal motive. It is only reasonable to achieve some sense of justice to enhance the sentence. 6. The convict’s sentence is enhanced to 30 years imprisonment with hard labour. Any aggrieved party has the right to mr i f Apr A py 2 AP ey é i. < A a ; Pronounced this .........- Ce seeeeees day of .: EAA v WO Ayn at BLANTYRE 7 _ - - = Je oo - R. M CHINANGWA JUDGE