Batoni Shilenda v People (SCZ Appeal No. 274/11) [2013] ZMSC 60 (13 August 2013)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 274/11 HOLDEN AT NDOLA/KABWE/LUSAKA (Criminal Jurisdiction) BETWEEN: BATONI SHILENDA AND ,. THE PEOPLE RESPONDENT CORArd: PHIRI, MUYOVWE, JJS AND KAOMA, Ag JS On 6 th November, 2012 and 13th August, 2013 ' For the Appellant: Mrs. K. M. Simfukwe - Legal Aid Counsel For the Respondent: Ms. M. M. Bah - State Advocate JUDGMENT KAOMA, Acting JS, delivered the Judgment of the Court. , Cases referred to: 1. Phiri v The People ( 1970) SJZ 178 2. Kaambo v the People (1976) Z. R. 122 3. Nkoloma v The People SCZ Judgment No. 341/ 1978 4. Jutronich, Schutte and Lukin v The People ( 1965) Z. R. 12 5. Benua v The People (1976) Z. R. 13 6. Nguni v The People (1976) Z. R. 168 7. Millard v The People (1998) Z. R. 52 The appellant pleaded guilty before the magistrate of the second class at Solwezi to one count of defilement of a girl under ,, the age of 16 years contrary to section 138 of the Penal Code; Chapter 87 of the Laws of Zambia. The particulars of the offence· ,. ':, were that the appellant on a date unknown but between the 1st day of October and 31 st day of October, 2007 at Solwezi in the Solwezi District of the North-Western Prov;ince of the Republic of Zru:nbia < had unlawful carnal knowledge of a girl under the age of 16, aged 14 years . He pleaded guilty. The brief facts • admitted by the appellant were that the prosecutrix was his granddaughter; he took advantage of the girl in the absence of her mother; and the girl was pregnant. The appellant was sentenced to 60 years imprisonment with hard labour by the High Court. He has appealed to this Court against sentence only. On his behalf the learned Legal Aid Counsel, 1\1rs. Simfukwe filed e only one ground of appeal alleging that the learned trial Judge erred in law when he imposed an excessive 60 · years sentence for defilement without taking .. into account the mitigatory circumstances of the case. Before us Mrs. Simfukwe relied solely on the written Heads of Argument. In brief she argued that the learned trial Judge did not J2 #s.m a . ..,..&.1=- - · · • - • .,. .. - ..-- r,-;zrr · . ,_ ; .. ~ take into account two mitigatory factors in favour of the appellant in arriving at the sentence, first that the appellant was a first offender and, second that he admitted the charge. On the first alleged mitigatory factor, she contended that as a general rule, first ' offenders are entitled to leniency. Sije referred us to "Phiri v ~The People 1 where Gardner J stated: "A first offender should not b~ denied leniency although circumstances may make the application of that leniency minimal. The ~eason for dealing with a first offender leniently is in the hope that a severe sentence is not necessary and that a lenient sentence will be sufficient to teach a previously honest man a lesson." Mrs. Simfukwe conceded that defilement is prevalent in Zambia and, that the Courts are entitled to pass deterrent sentences in order to protect the interest of the public, which includes preservatiop of morality, but irf exercising that right, the Courts must seek to ensure that the appropriate sentence is meted out. She referred us to Kaambo v The People:z where it was held inter alia: J3 "The basis of sentence must always be the proper sentence merited by the offence itself, after which the Court . considers whether the accused is entitled to leniency." She also refer.red us to Nkoloma v The People 3 where the ,. I Supreme Court observed: "The correct approach was for a Court to consider firstly whether the circumstances in which the offence was committed were such as to take it outside . the spectrum of offer.ces which should be ~egarded as attracting the minimum sentence." Counsel for the appellant further referred us to the minimum sentences of fifteen years and twenty years for defilement and incest respectively and urged that the appellant was not convicted for incest. She acknowledged that it was most unfortunate that the , victim, aged 14 years became pregnant, but she urged, that despite the aggravating circumstances noted, the seh tence was excessive and, that the Court should ·have exercised leniency on the mitigatory factors alluded to. Furthermore, she urged that the sentence should be replaced by one that reflects sentences imposed J4 .-:z:roc.....-·-· -•· ·-··· . circumstances. She cited Jutronich, Schutte and Lukin v · People 4 where it was held inter alia: "Disparity of sentences for crimes of comparable ch3iracter is a factor which can be taken into account on an appeal against sentence." ' · ;:. J Counsel contended that there 1s a senous disparity in the sentence imposed on the appellant and those imposed on others . convicted of the same offence even among current appeals and that this disparity be resolved in the appellant's favour. With regard to the second mitigatory factor that the appellant pleaded guilty, which she said the trial Court ignored, she cited Benua v The People 5 where it was held: in "A plea of guilty must be taken considering sente:µce and a failure to do so is an error in thus allowing an appeal - Court to amend principle, sentence." into account She also cited Nguni v The People6 where it was stated: " ..... the learned Judge had no regard whatever to the fact that the appellant pleaded guilty; we are of the view that notwithstanding an accused person by reason of his record JS has forfeited any claim of leniency the sentencing Court should exercise some degree of leniency where there has been a plea of guilty." She submitted that the only notable exception to this principle seems to be cases, where the acc~~ed had no option, but to plead guilty because he was caught red.::handed, which is not the case /' I' here. She reiterated that the sentence be set aside for being excessive and be replaced by a fairer ~entence . The State supports the sentence. In her oral submissions, Ms. Bah urged that sentence is a discretion of the Court as long as it is meted out within the law. She referred us to the second paragraph at page 9 of the Record of Appeal where the learned High Court Judge in sentencing the appellant to 60 years imprisonment noted that the convict was 41 years and the young girl, who would forever , be tormented by the convict's action, was only 14 years; and _ that , _;,; , . the convict did not deserve any leniency and must be kept away from young girls. She urged that the trial Court was within the law. I She referred us also to the third holding in Kaambo 2 to the effect that "for an appellate Judge to substitute his own view as to J6 an appropriate sentence for that of the trial Court is an error of principle". She argued that considering the circumstances, the · sentence does not come to this Court with a sense of shock. She also cited Millard v The P.eople 7 and submitted that what ·;- • -; I' 1s peculiar in this case is that the victim became pregnant and delivered of a child. However, she conceded that sentence is still in the discretion of the Court and that the sentence of 60 years . e imprisonment is outside the sentences currently being imposed in se}..ll.al abuse cases. We have perused the record of proceedings before the trial magistrate and the learned reviewing and sentencing Judge. We agree with all the principles enunciated in the various cases cited by learned counsel on both sides. As held by the Court of Appeal in Jutronich 4 in dealing with appeals against .sentence the appellate Court should ask itself three qu~_stions: (i) (ii) Is the sentence wrong in principle? Is the sentence so manifestly excessive as to induce state of shock?;and (iii) Are there exceptional circumstances which would render it an injustice if the sentence was not reduced? J7 It is clear to us that if one or other of these questions can be answered. in the affirmative . then the appellate Court can interfere. \ Of course, as noted by Mrs. Simfukwe, one of the holdings ~n that case was that disparity of sente)}ces for crimes _ of comparable ( ~ ~ character is a factor which can be taken into account on an appeal against sentence. It is quite clear also that a plea ·of guilty rnust be taken into account in considering sentence. A failure to do so is an error in principle, thus allowing an appeal Court to amend sentence [Benua v The People5]. In addition as Gardner, J stated in Phiri v The People1, a first offender should not be denied leniency although circumstances may make the application of that leniency minimal. It is plain frpm the Record of Appeal at page 6 that in mitigation Mr. Cheelo, Legal Aid Counsel had told the learned , ; ,; , . Judge that the appellant was a first offender who had pleaded guilty and was remorseful and would never again indulge in criminal activities. He had also urged the Court to exercise maximum leniency. Quite rightly, in sentencing the appellant, the learned Judge took into account facts which the appellant had admitted JS which revealed that the prosecutrix was his granddaughter; that he · took advantage of the girl in the absence of her mother; and that · the girl was pregnant. The learned Judge also indicat~d that fathers are sleeping with their daughters and grandfathers are sleeping with their granddaughters and that the young girls are getting· pregnant. The Judge wondered and properly so, what . these fathers and grandfathers would call the children born from their daughters and granddaughters. He asked if society has been cursed and urged the church to do something about it. Finally, as submitted by Ms. Bah, the learned Judge took into account that the appellant was 41 years and that the girl who would forever be tormented by the appellant's actions was only 14 years. On the b~sis of the foregoing the learned Judge was of the view that the appellant did not deserve .,. any leniency and that he must be kept away from young girls. We agree with the spirited argument by Mrs. Simfukwe that in arriving at the sentence the learned Judge had no regard whatsoever to the fact that the appellant pleaded guilty. We reiterate that notwithstanding an accused person by reason of his J9 record or conduct has forfeited any claim of leniency, the sentencing Court should exercise some degree of leniency where . there has been a plea of guilty and the appellant was a first offender. ,. The learned Judge was right that defilement of which the appellant was convicted is a very serious offence, which is prevalent countrywide. It is also true that the appellant defiled and impregnated his own_ granddaughter:, thus he breached the trust that the girl had in him as an elder in the family and someone to look up to for guidance. And we concur with the learned Judge that sexual offenders and defilers, in particular, those that abuse family members deserve very little sympathy and must be caged and kept away from young girls and from society . However, we are of the firm view that th:e -sentence of 60 years ... imprisonment with hard labour,. is wrong in principle and, it is so manifestly excessive as to induce la sense of shock. It is quite clear to us, as submitted by Mrs. Simfukwe, that the sentence of 60 years imprisonment is so in disparity with the current sentences being imposed on other persons convicted of the same offence, such JlO that we should interfere with the sentence as being too high. The • conclusion we reach in this case is that we quash the sentence of . 60 years imprisonment. Instead we impose a sentenc~-. of 35 years imprisonment with hard labour with effect from 11 th January, 2008. Accordingly we allow the appeal. \ ' . ............ . ...... ....... ..... l G. S. PHIRI SUPREME COURT JUDGE -~ - ······· ···· ·••.•·························· E. N . C. MUYOVWE SUPREME COURT JUDGE R. M. C. KAOMA ACTING SUPREME COURT JUDGE Jll