HIGH
COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL
APPEAL NO. 365/2006

From
the First Grade Magistrate Court sitting at Nkhotakota. Being
Criminal Case No. 38 of 2006

BETWEEN:

MILLION
JONA………………………………………… APPELLANT

-and-

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

CORAM: HON.
CHINANGWA, J

REVIEW
ORDER

The
convict Million Jona appeared before the First Grade Magistrate Court
sitting at Nkhotakota on 2^nd
February, 2006. It was on a charge containing three counts: 1^st
count: House Breaking contrary to section 309(a) penal code, 2^nd
count: Theft contrary to section 278 of the penal code, 3^rd
count:
Theft of Bicycle contrary to section 282 (h) of the penal code. The
convict was convicted on his own plea of guilty. The
lower court
imposed custodial sentences as follows: 5 years, 12 months and 18
months I.H.L. for the 1^st,
2^nd
and 3^rd
counts respectively. The sentences are running concurrently.

For
now the convictions on 1^st
and 2^nd
counts are confirmed. However, in the course of review two issues
have emerged which require determination. The first issue relates
to
an observed duplication of 2^nd
and 3^rd
counts. For purposes of clarity the particulars of these counts read
as follows:

“2^nd
Count:

Theft
contrary to section 278 of the penal code.

Particulars
of the offence

Million
Jona at the same time and place as stated in the first count, stole
one bicycle black in colour, one pair of trousers, one
T/shirt, 2
skirts, one blouse, and one chitenje. All valued K9,000 being the
property of Mr Samuel Chitsimba.

3^rd
Count

Offence
Section and Law

Theft
of Bicycle contrary to section 282(h) of the penal code.

Particulars
of offence

Million
Jona at the same time and place as stated in the first count, stole
one bicycle black in colour to the value of K5,000 being
the property
of Mr Samuel Jona.”

The
duplication comes about because the black bicycle which is the
subject of 3^rd
count is also included among the stolen items listed in 2^nd
count. The obvious result of the duplication is that convict has
been punished twice on the same bicycle. This is injustice.

It
is the view of this court that the state had one choice only either
to include the bicycle in the 2^nd
count as court did or proffer a separate count, but not both. To
correct the injustice occasioned, the conviction on 3^rd
count is quashed and sentence of 18 months I.H.L set aside.

The
second issue relates to the sentence of 5 years I.H.L. on 1^st
count. This court is of the view that it is excessive in the
circumstances. Considering the fact that convict is a first offender

and that the bicycle was recovered. The sentence is reduced to 18
months I.H.L. which is to run concurrently with 12 months I.H.L.
on
the 2^nd
count. Order accordingly.

Pronounced
in Chambers on this 21st day of April 2006 at Lilongwe.

R.R.
Chinangwa

JUDGE