IN THE HIGH
COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL APPEAL CASE NO. 180 OF 2005

GEOFREY GIFT KACHIMANGA……………………..APPELLANT

-
AND -

THE REPUBLIC……………………………………...RESPONDENT

(Being Criminal Case No.
90 of 2005 at the Chief Resident Magistrates Court – Lilongwe)

CORAM: CHOMBO, J

Matumba of Counsel for the Appellant

Mrs
Kachale for the State

Nakweya,
Court Interpreter

Mhone, Court Reporter

Chombo, J

JUDGMENT

The
appeal is against conviction and sentence. The appellant was found
guilty and convicted of robbery contrary to Section 301
of the Penal
Code and sentenced to 10 years Imprisonment with hard labour.

There were six
main grounds of appeal as follows; firstly grounds against
conviction:

1. 
   The learned
   Magistrate erred in failing to give the appellant the benefit of
   doubt found on the facts of the case and also failed
   to balance
   evidence of appellant against that of the State.

   
   

2. 
   The learned
   Magistrate erred in treating the appellant as guilty until proved
   innocent throughout.

   
   

Secondly grounds
against sentence:

1. 
   Magistrate erred
   in ruling that one of the aggravating factors of the case was that
   the appellant was found with a firearm when
   there was no evidence on
   this.

   
   

2. 
   Magistrate erred
   in finding that other aggravating factors were that appellant was
   caught through an entrapment and that the appellant
   had a motive to
   steal the motor vehicle in issue. That these were matters that
   could not constitute aggravating matters.

   
   

3. 
   Magistrate failed
   to take into account the fact that there was no loss suffered by the
   appellant.

   
   

and
therefore that the sentence of 10 years was excessive in the
circumstances.

The appellant
filed skeletal arguments in support of his appeal application.

The State also
filed skeletal arguments; in responding to the appeal.

The appellant
submitted that throughout the hearing of the case the Magistrate
treated him as a guilty man who was to prove his
innocence; and that
the court did not give him the benefit of the doubt by considering
his evidence with any credibility.

I have had
opportunity to look at all the evidence on record. Throughout
evidence of prosecution there is no evidence to the effect
that the
appellant was being treated as a guilty man already. What is evident
is that at the time the court made a ruling as to
whether or not
there was a case to answer the Magistrate, in his own words, among
other things stated that;

“Against the
above background, the court finds that the accused committed
the…….” (underlining
supplied for emphasis.

This
seems to be the daming piece of material that made the appellant
claim that the court treated him as guilty throughout the
trial. In
exercising his discretion on a finding of case to answer the lower
court should have reminded itself that this was only
a prima
facie
finding and not use words like “……
the court finds that the accused committed the offence”
which can be interrupted as pre-judging the case before the evidence
of the defence has been evaluated on its own merit.

I
have looked at the other issues raised by appellant’s counsel but
do not find the allegations that the lower court treated appellant
as
guilty, save what has already been alluded to above, substantiated.
What I find on record are reasonings of the Magistrate
that made him
not rely on appellant’s evidence. Where there is an anomaly in any
proceedings Section 5 (1) of the Criminal Procedure
and Evidence Code
provides means of dealing with such anomalies as follows:

“Subject to
Section 3 and to the other provisions of this Code, no finding,
sentence or order passed by a court of competent jurisdiction
shall
be reversed or altered on appeal or review on account of any error,
omission or irregularity in the complaint, summons, warrant,
charge,
proclamation, order, judgment or other proceedings before or during
the trial or in any inquiry or other proceedings under
this Code
unless such error, omission or irregularity has in fact occasioned a
failure of justice.”

In
considering the question of whether or not the anomaly can or cannot
cure the anomaly one must address oneself to the evidence
on record.

The lower court
chose to disbelieve the evidence of the appellant and entered a
conviction against him based on evidence of prosecution.
The
evidence on record overwhelmingly pointed to the appellant being the
one who championed the robbery. He was identified by
PW2 as the one
who hired him at the taxi rank and was joined by other friends at
later stages. PW2 was so emphatic in his identification
of the
appellant in cross-examination by the appellant he said.

“Even after
20-30 years I could recollect you.”

The appellant and
PW2 had spent some time negotiating about the cost of hiring the said
vehicle and PW2 had the opportunity to see
and therefore identify him
not long afterwards.

PW3, not a
stranger to the appellant, also gave details of what part the
appellant played that day; among other things he took PW3
to his
house where the appellant collected a gun and a knife, gave him a
telephone number which PW3 used to regularly communicate
with him
until the robbery was completed. He was identified as the one who
gave keys of the vehicle in issue to PW3 and he demanded
K100,000
payment for the sale of the stolen car. PW4 and PW5 gave evidence
that they were actually present on the scene when the
appellant
handed over the keys of the stolen vehicle to PW3. The two were
personally involved in arresting the appellant. There
is, no doubt,
overwhelming evidence that directly connects the appellant to the
robbery. I find therefore that the lower court
did correctly address
itself on the burden of proof. The anomaly so committed by the
Magistrate, I find therefore does not result
in a mistrial and I
uphold the conviction.

On
the appeal against sentence the appellant submits that the lower
court erred in referring to a firearm for which no evidence
was
adduced. PW3 testified, and the same was not disputed, that he was
taken to the house of the appellant before the commission
of the
offence where the appellant put a gun in his scumber and a knife in
his back pocket. Whether these were used or not used
in the
commission of the offence has not been alluded to, but the fact still
remains that the appellant, at the time was
actually
armed. The Magistrate was therefore not in error to address himself
to this matter.

The lower court,
in arriving at its decision commented on the quality of evidence from
the appellant. What I find on record are
fair comments on why he did
not accept the evidence of the appellant. This I find not to be
irregular and find no negativity as
alleged by appellant’s counsel.

The appellant
submitted that the sentence of 10 years was excessive in the
circumstances. The lower court found that there were
a number of
aggravating circumstances

1. 
   that the
   appellant was armed

   
   

2. 
   force was used to
   rob PW2 of the vehicle and prevent PW2 from reposing the property
   robbed

   
   

3. 
   the appellant was
   in the company of three other men at the time of committing the
   offence.

   
   

4. 
   and that the
   appellant had the motive to steal the said motor vehicle.

   
   

In
Rep
v Phiri and Others
[1993] 16(2) MLR 748 Chatsika, J held as an aggravating circumstance
the prevalence of cases of breaking into buildings and committing

felonies therein.

Evidence
on record indicates that the appellant and his friends were involved
in a train of actions that finally resulted in the
robbery of the
vehicle in question. The evidence of PW3, which as already said had
not been disputed by the appellant, was that
he recognised the
appellant and his friends as the same people who had robbed him of
his vehicle.

It is on record
that the appellant told PW3 that:

“They said
they wanted to use this to rob Area 12 and I will find it somewhere
they may leave it. He gave me a choice of what type
of motor vehicle
I should want. I said I need 16v. They gave me their phone number
09412060. They said I should call them regularly
they were to steal
a minibus that night and a car. Then they will show me where my
carina was.”

Within
a very short time after the robbery, the appellant and his friends
were demanding K100,000 from PW3. If it were not for
PW3 breaking
the silence and reporting the matter to Police the appellant would
certainly have profited from his illegal transactions.

This
case actually shows that there was a syndicate or conspiracy by a
gang of thugs to terrorise motorist, rob vehicles and cause
untold
suffering to members of society. It was held in Nguwo
and another v Rep
[1991] 14 MLR 384 that:

“Once prima
facie grounds are shown for the existence of a conspiracy, things
said or done by one conspirator in execution or furtherance
of the
common intention, are evidence against the other conspirators,
whether or not the charge of conspiracy is included.”

The
appellant and his friends did say to PW3 they were going to rob Area
12, steal a minibus and another motor vehicle 16v Toyota
– and
during that night they brought to PW3 a Toyota 16v as promised. If
these revelations do not constitute aggravating circumstances
I do
not know what will.

The
appellant submitted that as the complaint has suffered no loss then
the Magistrate should have exercised leniency. This was
no ordinary
recovery – PW3 actually put his head on the block for the car to be
recovered. What is normally not taken into consideration
generally
in Malawi however is the effect of trauma on the actual victims of
the physical force.

In
considering the appropriate sentence to be meted a number of factors
were taken into account by the lower court. Some decided
cases are
also helpful in considering the matter. As stated by Jere, J in
confirmation case no 175 of 1975 whatever sentence is
passed
“punishment
must fit the criminal as well as the offence, be fair to society and
be blended with a measure of mercy according to
circumstances.”

The
maximum sentence for robbery is life imprisonment. But after taking
into account a number of mitigating factors the lower court
imposed a
sentence of 10 years. In confirmation Case No. 1024 of 1995 The
Republic v Alumando Mateyu and Domingo Salagado,
Criminal Case No. 1230 of 1994, Principal Registry (unreported). The
Republic v Ladistas Thamando and others
and The
Republic v Mateyu Brown and Others
Confirmation Case No. 1107 of 1994 the High Court upheld sentences of
10 years for robbery. In the Republic
v Bester Manjeza and Mabvuto Libanda,
Confirmation Case No. 1449 of 1994 Tambala, J confirmed a sentence of
14 years and 10 years for robbery. These sentences were
passed
around 1994-1995 when the incidences of robbery of motor vehicles
were not as rampant as they are now. 10 years later the
same
sentence, considering the seriousness of the offences and the rate at
which they are occurring is not adequate. There is
need to review
the sentences and protect the society by passing meaningful sentences
that will reflect the seriousness of the offences.

To
reduce the sentence, in my opinion, as stated by Mwaungulu, J in The
Republic v Maulidi Jafali,
Confirmation Case No. 534 of 1995

“………is
likely to lead any reasonable man to the conclusion that something
grossly amiss has befallen the Criminal Justice System.”

However
after taking into account that though armed, the appellant did not
use the weapons on this particular robbery, that he is
a first
offender and all the other mitigating factors, I consider that the
sentence of 10 years is appropriate and confirm it accordingly.

MADE
in
Open Court this 16^th
March, 2006.

E.J.
Chombo

JUDGE