S v Chinsepo (Judicial Review Matter 13 of 2022) [2022] MWHC 242 (4 August 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY JUDICIAL REVIEW MATTER NUMBER 13 OF 2022 (Being Criminal Case Number 581 of 2022 before the FGM Coutt Sitting at Lilongwe) BETWEEN THE STATE AND YAKILINI CHINSEPO ORDER ON REVIEW Kalemba, J. The First Grade Magistrate Court sitting at Lilongwe found the defendant guilty on his own plea of guilty of the offence of attempted suicide contrary to Section 229 of the Penal Code. He was convicted and sentence to 18 months’ imprisonment with hard labour. The Ag. Chief Resident Magistrate wrote this court requesting for urgent review of the matter on the basis that the sentence appears to be manifestly excessive. I agree with the views of the Honourable Ag. Chief Resident Magistrate. The High Court exercises powers of review over subordinate courts under sections 25 and 26 of the Courts Act and section 362 of the Criminal Procedure and Evidence Code. The sections provide as follows; Section 25 of the Courts Act The High Court shall exercise powers of review in respect of criminal proceedings and matters in subordinate courts in accordance with the law for the time being in force relating to criminal procedure Section 26 of the Courts Act (1) In addition to the powers conferred upon the High Court by this or any other Act, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts and may, in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof and may remove the same into the High Court or may give to such subordinate court such directions as to the further conduct of the same as justice may require. (2) Upon the High Court calling for any record under subsection (1), the matter or proceeding in question shall be stayed in the subordinate court pending the further order of the Hagh Court. Section 362 of the Criminal Procedure and Evidence Code (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been forwarded under section 361, or which otherwise comes to its knowledge, the High Court, by way of review, may exercise the same powers as are conferred upon it on appeal by sections 353 (2) (a), (b) and (c), and 356. (2) No order made in exercise of the powers conferred in this section shall be made to the prejudice of an accused untess he has first had an opportunity of being heard either personally or by a legal practitioner in his own defence. In exercise of its powers on review, the High Court can alter the conviction and sentence passed by the lower court. In my review of the court record herein, the question whether a prison sentence was appropriate in the circumstances greatly exercised my mind. Section 340(1) of the Criminal Procedure and Evidence Code provides as follows; Where a person is convicted by a court of an offence and no previous conviction is proved against him, he shall not be sentenced for that offence, othernise than under section 339, to undergo imprisonment, not being imprisonment to be undergone in default of the payment of a reasonable fine, unless it appears to the court, on good grounds, which shall be set out by the court in the record, that there is no other appropriate means of dealing with him. It is wrong to sentence a person, against whom no previous conviction is proved, to undergo imprisonment unless it appears to the court, on good grounds (which ought to be set out in the record), that there are no other suitable ways of dealing with him. The record does not show that the magistrate considered these sections, and it seems to me that had the magistrate done so the court below would have reached the conclusion that there were other appropriate means of dealing with the accused person. It is in view of the foregoing, | confirm the conviction, and reverse the sentence of 18 months’ imprisonment with hard labour to such term as could result in the accused person’s immediate release. Pronounced in Chambers this 04"? of day of August 2022. a Bruno MacDonald Kalemba UDGE