Mulenga v People (Appeal 41 of 2007) [2007] ZMSC 181 (5 June 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL NO. 41/2007 BETWEEN: CHARITY MULENGi \ APPELLANT AND' ■ THE PEOPLE RESPONDENT CORAM: SAKALA, CJ., CHIBESAKUNPA ANIDC! J fENGI, JJS' On 5th June, 2007.. For the Appellant: Mr E. M. S> kazwe, At: lint- 1 >n ;:L it. a of Legal Aid For the Respondent: Mrs. J. C. K rumba, Dcpi.ity Ghirf: Slate Advocate A JLDGMEKT Sakala, CJ., delivered the judgment of the Court - Cases referred to: Katebe Vs. The People (1975) ZR 13 The Appellant was convicted by the Subdidinate of the sect.nd class ho] den at Mporokoso of the orlcnce de file incut of;’; ehcU conhaiy U St.cJon 138(1) of the Penal Code: Cstp 87 pf t he 1.a.ws o I ze u’ • '■ ns <] ,1H 1 Act No. 15 of 2005. The particulars of the offeree- were- that the Appellant, ^Charily Mulenga, on a date unknown but during, the month of August 2096 -at Mporokoso in the Mporokcsw District of the Norther' Province cf the Republic of Zambia, had unlawful carnal knowledge with Nelson Kaziya, a child under die age of 16 years. After conviction, the? Subordinate Curt teaind that it had no jurisdiction to sentence the Appellant; and mtends of-Stcdop 217(1) of the Criminal Procedure Code, the Subordinate Coml committed her to 1 ho High Court for sentence. f ’ « ’ . ■ » On committal, the High Court observed that the oiTeiice wasHot Only serious but prevalent in the province and that it was a pity that even women had started committing the otfences of defilement. The Appellant was thus sentence to 25 years simple ini prison,meat with effect from the dateof arrest. ‘ The Appellant has appealed to this? Court 'against:botlp'cbriviciiojv and sentence. 3, The case for the pr^^evtwtn in. Court centred on the evidence of PW1 and PW2, a nephew and uncle. Accoiding to P'A 1. a boy aged 12 years, on a date he could not remember, but in the month or /xugusi, 2006, he was returning home at about 1700. hours from a village where he . •* had gone to play, when he was called by. a lady, whom he identified as the Appellant. The Appellant was then at her home. She. sent him to call a certain gentleman but thai gentleman refused to heed the call. PVV i then returned to the Appellant’s home to report that that gentleman had refused. According to PW1, the Appellant instead got hold of han dragged him into her house and pressed his month f'he Appellant then undressed herself. She also undressed PW1 and put him in be tween her thighs, while she was laying on her bed. She pulled the boy’s pi Ante om t and inserted it in her private part. According to PW1, she find sex with the Appellant. Later, he was set free and went to his home. . PW1 further testified that lie did hot infonn his parents as he was afraid. Later after a week, he discovered puss owning front his private part. The male organ was swollen; . He then informed his parents. He was taken to the clinic. Subsequently, .he led his parents to the house of the Appellant. 5. They did not find her; but found her at the bar where he identified her. She 4 ' . ' ■ ...■ •■ ..■ '.' ■' d was then apprehended and thePefic^fafion. PWl explained that', he was issued with a Police. Medical report form. He was h'eated for syphillis. • . '• • • The summary of the evidence of PW2S the uncle of PW1, a Police Officer, is that in the month of August, 2006, he was infoimcd by his mother in law that PW1 had venereal disc use .-/On 3|J Sepceniber.. in company of his' ... . ■■ friend, they met two ladies on. the way. :His. friend : suspected one of the' ■ ’ - , ladies to have been the defiler of PW]. PW1 was called to the scene and. identified the Appellant as the person wlio had cartmI .knowledge with him,. < . y:; Thereafter, PW1 led his uncle, the Appellant, slid the other lady io the house .. M'i of the Appellant where he described the rooms of the house. . ?.. \ According to PW2, they took the Appellant-to the Police Station. On H the way, the Appellant pleaded with PW2 io withdraw thc case and that she ; was going to pay him KI00,000. , > . PW2 also testified that PW1 was. treated for ■syphillis:. 'In cross examination, PW2 denied that he was the one who had asked the Appellant •* » ' * S to pay KI00,000. He aw^M in 'cr^V^e^ijinatuin that the "Appellant admitted having defiled PW1. In defence, the Appellant gave unsworn statement which she was entitled to do. The gist of her unsworn statement is that on 131 August, 2006, while asleep at heme,, she heard • a knock on the; door When she'-:, opened the door, she saw PW2 who whs wuh pWiy PW2 had a bottle of spirit. They sat outside and drunk the beer. She got drunk and slept in the verandah. According to the Appellant, PW2 lifted her and took her into her bedroom. Around 0200 hours, she discovered that she was naked. On the other side, she saw PW2 also naked. PW2 told her that he had sex with her and that he did not know what he was doing, According to the Appellant, he dressed up and gave her K50,00(). He left but told her that lie would be coming everyday. But before PW2 left, she saw 1 AVi, who had earlier coinc with PW2 sleeping in the sit!ihg. PW2 woke up 1’W 1 and left together. According to the Appellant’s unsworn statement,! wo days later, PW2 came to her home and again they had sex. About five or six days later, P\V2 again came to her home, he asked her how she was feeling after rhe sexual encounter. He further asked whether she had a. problem with her vagina ' She told him that she he^sutehTO her that he had a sexually transmitted disease; that he had even, gone 10 the c'i.m'c for medication and that he had brought some tablets for her to he treated, He loft, ’. Che following day he gave her K2i000 to go and buy medicine:.- He also told her that he had also traditional herbs and that he was shocked that his w . 1I nephew, PW1 had also a sexually transmitted disease. The Appellant further stated in her mis worn statement that die last' '■ t J time when PW2 came lo her hdu.se at 2200 hours, she was with her l boyfriend from Lusaka. When PW2 knocked, she refused to open but then.. : PW2 insisted and started shouting accusing her that she-was a prostitute; that she was the one who transmitted the disease, to PW I; die day he came to her home with his nephew, PW1 and that she woke up in the; night and had sexual intercourse with PW1 and that lie would report io the Police. He left but came the following day and apologized. The Appellant further explained that on another day, PW2 returned with PW1 who then pointed it her that she h:nl sex with him. PWl, led them to her house. She denied the allegation. On the way to .die Police t I ’ I Station, according to unsworn statement, PW2 demanded KI 00,000 to drop the case. Bur subsequently, she was arrested? Suffice it to mention that the Appellant called two witnesses, one her ' *»l- ,» ’ • ' ' daughter aged 14 years and another a brother. The evidence of these witnesses was, in part, a repetition of the Appellant’s. unsworn statement of the presence of PWsl and 2 at her house.. . .... ■ The learned Magistrate reviewed the evidence and found that it was Z , . not in dispute that PW1 was a child under the age of 16 years; that PW 1 was defiled and contracted syphillis; that PW2 had an intimate relationship with the Appellant and that there was no false implication. The learned trial Magistrate rejected the Appellant’s defence and convicted the Appellant accordingly. ‘r f r '• _• ‘ T ■. ‘ / . i . . On behalf of the Appellant, Mr. Sikazwc, the Acting 'Director of Legal Aid, initially indicated that he had two-grounds of appeal against conviction and sentence. He, however, abandoned the second ground of appeal in the course of the arguments. The ground argued bei ore us was that the trial Magistrate erred in law and fact when he,convicted the Appellant of defiling i a child under the age o’ 16 years:.-oh the basis dimi there was cnorigii corroboration. The arguments on this ground were, that the case for the prosecution centered on the evidence of PWI arsd PV-’2; that the exact date of the offence could not he ascertained, and that PW-1, PW2. and PW3 had an interest of their own to sewn. The interest being that when PW2, who had a relation with the Appellant, found ot.it that the Appeimni was' :vyith .-another man from Lusaka; the three 'witnesses• cohnivpd to put the: Appellant in ' < y ' ' . ' ; ■ ' , '/• problems and to keep her away so that both PW2 and the gentieman from £ Lusaka lose out. It was submitted that there was no corroborai ion of the evidence of ... PW1 in that when PW1 was .taken to. the cl.it.jic there, were no bruises found on him; as he was taken to tlx clinic two weeks .alter the alleged incident when he was found to have syphiilis and'that'(fie.. Appellant was not examined to ascertain whether she too had sy^hillik It was submitted that ■ PW1 would have suffered from syphiilis from other women. . . .. On behalf of tire State, Mrs kaumba supported the conviction. She y submitted that although there was ho corroboration of -PWLs evidence on the identity of the defiler, the learned trial Ma. L'istrme Ivnnd something more namely: that there was no 'ill will on the part of the .prosecution witnesses against the Appellant. She Cited the case of Katcbc Vs. The People (1) pointing out that there was. no motive in the jnslabt case. She also submitted that this case was decided on thejssuefbf credibility.' She conceded that the Appellant: should have been examinee as well to determine whether she too suffered from syphilis/' ,i y We have considered the evidence on record,- the judgment of the learned trial Magistrate as we! I. as the submissions by-both Counsel, In our view, the issue of defilement was established by the evidence of PWI which was given on oath and to some extent supported by the evidence of PW2, the uncle of PWI. The Appellant gave unsown slaieme.m.,. The issue in this case, as pointed out by Mrs. Kaiimba, was one of credibility.. The prosecution evidence which was given fin oath was that on the way to reporting the Appellant to: the Police, subsequently, the Appellant pleaded . with PW2 to have the case, withdraw'!) and that she would pay K1()0,000, This evidence which was given on oath was not challenged. ’ This evidence, in our view, was corroborative of the evidence of PWI that he was defiled by the Appellant. i ' We are satisfied T !H'cse:;<tt;nh" f. n>v;».i 11 _ • - -ue ! the Appellant. The appeal ag-rv ;t;? nv'cfion is di;sn issec: Turning to the app«=l against sdntenco,- Mr. Sfl;.-KWt t,|at sentence of 25 years owls wdsmnncitt fir a !nst offolder was t.)() excessive. We have considered the submi-.sion \v .. n sentencing the Appellant on commit h-d, the leaiaid ify,j to the mitigation by the Appehanl had this to say; 1 he ohence that yon committed is not only but prevent i i this Prov51Ke. n is a pih that even women have started comnftttmg e Tencv> liHuhe^ n h- th«> duty of the Court to impe«e deterrent sentem ss,*” Thereafter, the learned Jtatec ns-nftsseu <hr of 25 xears simple imprisonment. We agree that the wlrice eoiwriiiled wE,s .er/ s„rit1,|; Bllt v/e cannot agree that defilement by women on eliiMrcn is prevalent We are prepared to take judicial notice and this {(ppeV!S -lO oralnnon i.i oer cause list that defilement by men on. female children is indoor! prevalent and that to that extent those ofieiw? l.y IKn gainst f;,tl6|, atIrac( heavier sentences. In our vfer, (ht. present e !c p, !)e ,h(: <irai „tie or its kind of a female def*rig a male vmld. So tuc guestion ci nevaience does not arise. Indeed it was very unfmumale and t-rawc I ha I an t.muk female should have forced this y -.ung boy tn hiir :-ct- Although the Api -ellant was not examined, the strong presumption must be that she is the or who inrectco the boy. Having smd tn.at, we want to point out that where.rhe law bhs set a rmnimam mainlatory' senlence for any offence, the starting point for any Court when considering fne appropriate sentence to impose is the mandator/ nmmnum sentence. Should there be aggravation, the reasons of which should be recorded on record, then the Court should go above the nwndotov wmmww . rbe.se aggravations must be taken in stages. It is w*t errnngn to sav that the orlence is prevalent and then impose an extra 10 year.-.; on to of the mandatory minimum. Indeed, the fact that an accused is a first offender must be taxon into consideration. In the instant case, a sentence of 25 years simple imprisonment, lor this particular case, which in our view is not prevalent, comes io us with a sense of shock. We accordingly set aside the ’Sentence of 25 years simple imprisonment. In its place, wc impost- a sentence, of ]8 years simple imprisonment. While ti c appeal against conviction is dismissed; the appeal against sentence partial). succeeds to the extent that we substitute a sentence of 25 years simple inpnsdmrienl : w-ith a sentence of 18"years-simple imprisonment. E. L, Sakala CHIEF JUSTICE L. P, Uhibesak.unda SUPREME COURT JUDGE n ... " ■ ’ ■ • .......................................... P. di iri ENdk. SUPREME COURT JUDGE