R. v. Aleni Mwamengo, H.C. Crim. Rev/136-DSM-71, 15/9/72.

R. v. Aleni Mwamengo, H.C. Crim. Rev/136-DSM-71, 15/9/72.

Held:   Imprisonment, even in a suspended form, is inappropriate for the offence of defilement of a girl under twelve years, where the accused is a youthful first offender now pursuing his studied in secondary school.

                        MWAKASENDO, AG. J. – The accused in this case, Aleni Mwamengo, was charged with defilement of a girl under the age of 12 years. He pleaded guilty to the charge and was accordingly convicted and sentenced to twelve months’ imprisonment suspended under the provisions of section 294A of the Criminal Procedure Code for a period of 12 months. The accused was subsequently called upon by this Court to show cause why the sentence imposed should not take immediate effect and he has done so. Accused who at the time of the commission o the offence was Standard Seven pupil in Mbozi District is now in Form I at the Rungwe Alliance Secondary School. His letter to this Court shows that he is contrite and promises to be of good behaviour in future. As the boy is now pursuing a course of academic instruction I would be loath to interfere with his education, the effect which an order for his immediate imprisonment would have Learned State Attorney fully concurs in this view. Furthermore, it would appear from the record that this was at least a case where the trial Court could have imposed a sentence of corporal punishment rather than one of imprisonment even though the sentence was admittedly suspended. The learned trial Magistrate correctly thought sending the youth to prison would be ruinous, but imposing a suspended term of imprisonment, has, in my view, that same ruinous effects on the boy’s future. For this reason I am satisfied that the sentence imposed by the trial court is manifest in its severity and it should not be left to stand. The sentence is accordingly quashed and set aside and there is substituted therefore a sentence of ten strokes of corporal punishment. In order to disturb the boy’s education as little as possible, it is directed that the boy be called before the Resident Magistrate’s Court, Tukuyu and there have this order read over to him. The sentence imposed herein will then be administered in accordance with the Corporal Punishment Ordinance, Cap. 17 of the Laws.

 

Ed. Note: It is to be queried whether a sentence of corporal punishment, the imposition of which has recently been curtailed by the legislature, should be viewed as a “less severe” sentence than a suspended prison term which would not normally be carried out.