Arnold Silavwe v People (APPEAL NO. 15 OF 2016) [2017] ZMCA 498 (16 March 2017)

, IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Criminal Jurisdiction) APPEAL NO. 15 OF 2016 BETWEEN: ARNOLD SILAVWE APPELLANT AND THE PEOPLE RESPONDENT ; CORAM: MCHENGA SC, DJP, CHISHIMBA, SICHINGA SC, JJA On the 16th day of March, 2017 .::.-=,.~ .. ~-.:_ : -,;- For the Appdfant: ~ ,~:,~ .... ~.:a'. Por the Re~pond~n[ .- . A. Ngufube, _Director of L4}al Aid Board ~ -::."~ -·~ :· ~ Mrs. M-''}(apam&we-Chituhdu- Senior State Advocate of National Prosecution Authority ".>-· ~ -~~ -•~: : . ~ .:;~~ -•~ -.:.. :· . JUDGMENT SICHINGA, SC, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. The People v. Jefferson and Monks (1965) ZR 123 2. The People v. Mubanga and Makungu (1967) ZR 94 3. Benua v. The People (1976) ZR 13 LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia s The Appellant was convicted on one count of manslaughter contrary to section 199 of the Penal Code, Chapter 87 of the Laws of Zambia. The Appellant had pleaded guilty to the charge. The particulars were that on the 27 th day of January, 2015 at Kasama in the Kasama District of the Northern Province of the Republic of Zambia, the Appellant did unlawfully cause the death of Suzen Bwalya Chileshe. He was sentenced to 30 years imprisonment with hard labour. The Appellant appealed against the sentence on the ground that: The sentence was excessive as the Trial Court did not take the mitigation into account . . _>_ · ,_>_ · .:::.r. Board, on behalf of the Appellant submitted that the sentence of 30 years imposed on the Appellant was excessive. It was submitted that the Appellant, a first offender, readily admitted the charge and therefore did not waste the court's time. It was also submitted that there were no aggravating facts against him to warrant the excessive sentence that the court below imposed. He prayed that the court interferes with the sentence imposed by the lower court because it did not take into account the mitigation before it. On behalf of the Respondent, Mrs. Kapambwe-Chitundu, submitted that the sentence of 30 years should not come to this court with a sense of shock given -J2- the circumstances m which the offence was committed . The Appellant mercilessly beat up his wife even as his children begged him to refrain from beating their mother. It was submitted that the children will forever be traumatised by what they saw. It was also submitted that his wife was at the time nursing a baby. Counsel urged the court to uphold the sentence. We have considered the sole ground of appeal, the record of appeal and the oral submissions by counsel. It is common cause that the Appellant was originally charged with the offence of murder. When the charge was substituted with a lesser charge of manslaughter, he readily admitted to the charge . He also accepted the facts. - ·.iA- ->-- The facts as they were read out in court were that on 27 th January 2015, the Appellant's wife left home around 08:00hrs. On her return, around 17:00 hrs, she noticed some foot prints around their house. She alleged that they were for the wife of one Chileshe and she accused the Appellant of having committed adultery with her. She then started poking the Appellant in the head. The Appellant slapped his wife and followed that with the use of fists and what was described as "a handle of an object". Later that evening, his wife died. The postmortem examination found the cause of death to be "Hypovolemic shock due to severe internal bleeding due to a ruptured spleen" . The postmortem report was produced and admitted into evidence. -J3- The Appellant admitted the facts and in mitigation, counsel informed the court that he was a first offender who had readily admitted the charge. Counsel also submitted that the Appellant was provoked into committing the offence. Following the mitigation on behalf of the Appellant, the trial Judge, · in passing sentence stated as follows: "Sentence to 30 years imprisonment with hard labour." We have considered the submissions by counsel. We have also looked at the record of proceedings and the postmortem report. _;/,._ . -~:::.=-,~ 1'h€. ~ - .;/ta . . . .. . . .>-. .>-. . . :.>-. . .p-· unishmemi fo~•ili~ ~offen; e0~ fl!r$~~-iaught;r -rJ~et'ei~~t -in Se~tfri'tr 302:· of - ·- .-.:>-- the Penal Code which provides that - ". Any person who commits the felony of manslaughter is liable to imprisonment for life." As would be noted from the provision of the law, the offence of manslaughter carries a maximum sentence of life imprisonment. In the case of The People v. Jefferson and Monks 1 , it was held that a court has the discretion to decide on the sentence to be imposed in a particular case but it must consider the circumstances of each case and the penalty that attaches to the offence. In the case of The People v. Mubanga and Makungu2 , the holding was that a court is entitled to consider the character and antecedents of the offender as it -J4- imposes its sentences. Further, in the case of Benua v. The People3 the holding was that a court must take into account a plea of guilty, and the failure to do so is erroneous. While it is accepted that it was in the discretion of the trial Judge to impose the appropriate sentence, we find that the failure to take into account and give the Appellant any credit, for being a first offender and readily admitting the charge, was erroneous. We also accept Mr. Ngulube's submission that there was nothing in the facts that aggravated t?~ circumstance:~).-_n which the off9tce was c9mmitt~. ~rs. >· .. · ~ ,:::_:.v:;: -·~~ : - · - ~ ,::",;; _.,~pa~b~e-=-Cittiwi~~:~ §Ugmis~bn ·tjrat the Appeffa. Yit~e'rcilessly beat hls w·ife -in the presence of their children is not supported by the evidence; the facts as ~ -·:. ·-~·-..: .-· :>- . . ~ ,.. ...... _ ~ ~~'"! they were read in court, make no mention of that fact. The postmortem report in fact shows that other than the ruptured spleen, the Appellant's wife did not suffer any other injury. In appropriate cases, the use of a weapon like a hoe handle can be an aggravating fact. However, on the facts of this case and after considering the contents of the postmortem report, we find that it was not the case. The sentence of 30 years thus comes to this court with a sense of shock. We find it as being manifestly excessive, we accordingly set it aside. In its place we -JS- impose a sentence of 5 years imprisonment with hard labour. The sentence shall run from 30 th January, 2015, the date of the Appellant's arrest. C. R. F. MCHENGA, SC DEPUTY JUDGE PRESIDENT -~ -- ~ ,::.=c .. ► -:;-~ , , , '1\_::::=,, , - --~ -- ~ ,~=,,,q; -~ .·: ... ~ ................... . D. Y. SICHIN A, SC COURT 1F APP,AL JUDGE :· F. M. CHISHIMBA COURT OF APPEAL JUDGE -J6-