Gondwe v R (Criminal Appeal 44 of 2017) [2016] MWHCCrim 1 (8 April 2016)

Trysolt Gondv-./e v The RepulJ!fc Crirninal Appeal :\fo 44 of 20 17 A1zHC e-1·(!':~ ................ --\..-__..k.11'1'4,,.. ,i::-'('~ ••• : :~ . · -~ : i HIGH COUBT t t 1.. IBRARY \ ~ . . . . _t f t l l ! : l l~ l l '~ t f ... REPUBUC OF MALA\/VI f N THE H!GH COURT OF MALAV\JI MZUZU REG!STRY: CRIMINAL DIVISION CRIMINAL APPEAL NO. 44 of 2017 (Being criminal case No. 636 of 2016 jn the Chief Resident Magistrate Court Sitting at Mzuzu) Tr;/son Gond111e -v- The Republic HOUNORABLE JUSTICE D. A. DEGAJ3R1ELE Mr. D. Shaibu Mr. C. Duke ~~/jrs . C. Cha\·vinga Mrs. J. ChirNa Counsel for the State Counsel for the Appellant Official Interp reter Court Reporter DeGabriele, J Introduction JUDGEMENT ON APPEAL The appe!!ant \Vas charged with t\vo others on three counts of offence. The ·1 st count vvas being found in possession of protected species without a license contrary to section 110 (b) and (d) of the National Parks and VVi!dlife /\et, the 2nci count vvas being found in possession of prohibited vveapon contrary to sect1on 16 (2) of the Fire Arms Act and the ' ( r ) ~ , ,5ro cot.1rn \,V&~·J !,)eing rouna rn possession t)T a.rttn1un1tion contrary to sec 10n L ; ana l.. 1 ~ ( 1·' t· . • • , , • • • • ( r l . ' of the Fire /~rn1s "~\et. ,L\!! three offenders f)!ea.ded gui!ty and vvere convicted and Vie-re a!! sentenced to 2·<\ r1'1C)nths \rnprisonn:ent vvith hard labour on the 1 st count, 36 n1onths irnprisonrnent VJith ha.rd IcJ;our on the 2 11d count and three rnonths irnprisonrnent vvith hard - Tryson Gonciwe v The Republic Crimmai Appeal No 44 of 2017 MzhC The appellant herein appeals against the sentence passed by the lower court. There are two grounds of appeal as follows; a. The lower court erred in law and in principle in imposing outright custodial sentence on the appellant who is a first offender, pleaded guilty and cooperated with authorities. b. in the alternative the sentences were manifestly excessive regard being had to the circumstances of the offences and the appellant. The Law The lavvs under which the appellant pleaded guilty out!ines the maximum sentences to be imposed v1here a person has been found guilty of the offence. Section 110 of the National Parks and Wildlife Act provides that; "Any person who is convicted <;>fan offence involving (b) possession of selling, buying, transferring or accepting in transfer any specimen of protected species other than Game species (d) contravention of sections 32, 33 and 35 of this Act shai! be liable to a fine of K 100, OOO and to imprisonrnent for a term of ten years, and in any case the fine shall not be less than the value of the specimen involved in the commission of the offence". !t rnust be noted that the sections referred to in section 110 (d) involves various prohibited activities concerning the Nationa! Parks, VVild!ife Reserve or nature sanctuaries. If a person is engaged in those activities v.tlthout authority, that person comrnits an offence. The prohibited activities include entering or residing, possession or use of weapons , traps, explosives or poisons, brining domesticated animals and other activities. Section 16 (2) of the Fire P\nns iL\ct provides that; 'A person who carries or has his possession a prohibited weapon shall be liable to - imprisonment for fourteen years". Section ! 2 of the Fire l\rn1s ,l\ct provides that; Tryson Gondwe v The ,c:;;epubfic Criminal Appeal No 44 of 2017 MzHC ·'(1) No person may othervi1ise than a accordance with the conditions of a fire arm permit or an annual license, carry or have in his possession or under his control any firearm or ammunition. (2) A person who contravenes any of the provisions of subsection (1) shall be liable to a fine of 100 pound and imprisonment for six months" The High Court will only interfere with a sentence if it is proved that the sentence was wrong in lavv and it was manifestly excessive, see The Republic v Makanjila [1997] 2l'i/1LR 150 HC. However, the court must consider and examine the mitigating factors and aggravating factors and weigh them to come to an appropriate and meaningful sentence, see The Republic v Phiri [1997] 2 MLR 92 HC. It was held in the case of The Republic v Shauti Confirmation Case No 175, 1975 that the guiding principle in sentencing is that the punishment should fit the criminal as well as crime, be fair to society and be blended with a measure of mercy according toJhe circumstances. This is means that courts must pass meaningful s2nter.ces, which wiH not generate contempt in the eyes of the pubilc or indeed even in the eyes of the defendant. Courts must pass sentences that will fit the crime, the defendant and also satisfy the legitimate expectations of the public. The law does cali upon the courts to consider non-custodial sentences. Under section 340(1) of the Criminal Procedure and Evidence Code the laws provides that first offenders must be conside:ed for non-custodial sentences as outlined under section 339 of the criminal procedure and Evidence Code, unless such a non-custodial sentence is not the , appropriate means of deaiing w1th the convict. The reasons for deciding on a custodial sentence must be weil articulated in the record. The imver court examined ail the necessary areas and d2cided to impose 2 short, sharp and quick sentence., bearing in mind that the offences are serious and are punishable by maximum prison terms of 1 O years, 14 years and 6 rnonths. I find that the lower court did ta ke into account the n1itigating factors herein are that the appellant pleaded guilty, vvas a first offender arid the v:e2pons they had in their possession were confiscated. However 1-he appeHant argues that the sun1tT1a1ion by thr-; !ov\!e r· co urt of his butchering anin1ais vvss vvrong as the appellant \Vas oniy fou;1d \1Vith certain iten1s and had not l<!He·d or btJtchered an!n1ais. Tt1e appellant also arf1ues that the lcr\,ver cciurt did not SJJec?fy \,Vhich - Tryson Gondwe v Tile f=iepuh!ic Criminal Appeai No 4-+ of 2017 ft/izHC drugs were bought with the money, but eventualiy used the inform ation to impose a custodial sentence on the appellant ! have read the record of the lower court. First, appellant pleaded guilty to the charges as read and put to him and there was no need to prove e lements of the offence. Whether or not he butchered the animal should have been brought in as evidence in a full trial. Secondly, the appe!iant was also found in possession of a gun without licence . This coupled with the being found with the prohibited species of game, whether parts of an animal or the whole, leads to an inference that he was involved in kill ing the same. The iower court was therefore right in using this information to add weight to the aggravating factors. Thirdly, the lower court was not wrong in concluding that tourists come to Mala1,vi to see in part the diverse heritage v,:hich includes animals, pay forex and the forex is in turn used to buy drugs for the hosp itals, construct schoois build roads among other things. I agree with this conclusion and find that the lowe r court was right use this information to add weight to aggravating factors of the offence. Havin9 looked at the above, I find that the sentences 1. Nere not manifestly excessive . i find that the sentences \Vere just in the circumstances of this case . l confirm the sentences as passed by the lm,ver court. The Appella nt v-:i!! serve 24 month s imprisonment with hard labour on the 1 st count, 36 months imprisonment with hard iabour on the 2nd count and three months imprisonment vvith hard labour on the 3rd cou nt, with the sentences were ordered to run concurrently with effect from the date of arrest which w as the 1 su1 of October 2016. The appeal fails in its entirety. M;;;de in Chambers at MZUZU REGISTRY this 1 oth day of April 2018 - 4