Clifford Maambo v People (APPEAL NO.06/2019) [2019] ZMCA 408 (23 May 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL N0.06/2019 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: CLIFFORD MAAMBO APPELLANT AND \ •. \ I CORAM: Makungu, Mulongoti and Siavwapa, JJA On 21st May, 2019 and 23rd May, 2019 For the Appellant: Mrs. S. C. Lukwesa, Legal Aid Board For the Respondent: Ms. P. Nyangu, Senior State Advocate - National Prosecution Authority JUDGMENT MULONGOTI, JA delivered the Judgment of the Court Cases referred to: 1. Sikaonga v The People (2009) ZR 192 (SC) 2. Phiri v the People (1970) ZR 178 (SCI 3. Modester Kalaba v The People CAZ Appeal No. 86/2017 4. Jutronich and others v The People (1965) ZR 9 (CA) 5. Nafutali v the People (1980) ZR 196 (SC) 6. Solomon Chilimba v The People (1971) ZR 36 (CA) Legisla tion referred to: 1. Section 138(1) of the Penal Code Cap 87 of the Laws of Zambia as amended by Act No. 15 of 2005 The appellant, Clifford Maambo, was tried and convicted by the Subordinate Court of the offence of defilement contrary to Section 138(1) of the Penal Code as read with Act No. 15 of 2005. The particulars of the offence alleged that on 7 th July, 2018 at Monze in the Monze District of the Republic of Zambia, the appellant had unlawful carnal knowledge of 1CK', a girl below the age of 16. The prosecution's case was anchored on the testimonies of 'CK1 and others. 'CK' a girl aged 8 years testified as PWl. Her testimony was that on 7 th June, 2018 after attending a celebration at school, she was walking back home in a group of friends. It was evening time and on the way, she saw the appellant whom she knew as Paul. The appellant carried her on his bicycle and took her into the bush where he had sex with her. He warned her not to tell J2 anyone. After that he put her on his bicycle. As he cycled her home, they met her mother who told the appellant that she was looking for her daughter but the appellant continued cycling until he reached her home and left her there. When her parents returned home, she told them what the appellant had done. She testified that she was examined at Moonzwe Clinic then referred to Monze Mission Hospital. In cross examination, she insisted that the appellants parents were present at Moonzwe Clinic when she was being examined. PW2 was an 18 year old girl who told the Court that on 7 th June, 2018, she was in the company of 1CK' and others, when the appellant whom she knew as Paul as that is what he was called in the village, asked 1CK1 to go with him. In cross examination, she said the appellant carried 1CK1 on his bicycle. PW3 was 'CK' s mother who testified that her daughter 'CK' was born on 15th May, 2010. It was her testimony that on 7 th June, J3 2018 there were celebrations at Mandando Primary School which her daughter and other children attended. When 1CK1 took long to return home, she got worried and decided to follow her to the school. On her way, she met the appellant carrying 'CK' on his bicycle. She tried to stop him but the appellant did not stop. When she got home, she found 1CK1 and asked why she returned late. 1CK1 told her that the appellant took her in the bush and had sex with her. PW3 then checked her vagina and confirmed that she had sex as sperm was still showing. She took 'CK' to the clinic where they were referred to Monze Hospital. At Monze Hospital, 1CK1 , was examined and treated with Anti-retro viral drugs (ARVs). The appellant was later arrested and admitted to the villagers that he had carnal knowledge of the girl. PW4 an uncle to the appellant testified that he was among the people who took 1CK1 to the hospital. In cross examination he said the appellant's father was present at Moonzwe Clinic when 'CK' was examined. J4 PWS was the arresting officer who testified that he based his decision to arrest on the medical report and the school register. PW6 a nurse at Moonzwe Clinic testified that she examined 'CK' on 8 th June, 2018 and later referred her to Monze hospital. PW7 a medical licentiate at Monze Hospital testified that on 11 th June, 2018, she subjected 1CK1 to various medical examinations. He did not find sperm in her vagina but noticed bruises. In cross examination, he said chances of finding sperm after 48 hours are rare but bruises could be found. In his defence, the appellant testified that in July, 2018, he gave a ride to 'CK' on his bicycle. He took her home and went away. The following day, 1CK1s parents went looking for him at his home. He refused to see them and said he only gave the child a ride. Later he was told by his brother that 'CK' had been taken for medical examinations at the clinic. His parents followed to the clinic because 'CK's parents were demanding for compensation. He was later apprehended. JS In cross examination, he reiterated that he gave 'CK' a ride on his bicycle in July, 2018 and not June, 2018. However, he said he was apprehended in June, 2018. He admitted that he met 'CK's mother but she did not greet him. He agreed that the child was below 16. After analyzing the evidence, the trial Magistrate made the following findings of fact. On 7 th June, 2018 there was a celebration at Mandondo School which 'CK' attended. Thereafter the appellant gave her a ride on the bicycle. After warning himself of the dangers of convicting without corroborative evidence, the trial Magistrate observed that when PW3 reached home after seeing 'CK' with the appellant, she checked her daughter's vagina and found sperm. 1CK' was a day later checked at the clinic. At the hospital, PW7 observed bruises on her vagina. The Magistrate was accordingly satisfied that the evidence of 'CK' that she was defiled by the appellant was corroborated. The appellant was found guilty and convicted. The matter was then referred to the High Court for sentencing. J6 He was sentenced to 40 years imprisonment with hard labour. Dissatisfied, he appealed to this Court on the following grounds: 1. The Court should look at his sentence as it is excessive. 2. That even though the Court mentioned that it felt lenient on the appellant, it did not exercise leniency. 3. The lower Court did not consider the appellant's status as a first offender. 4. The lower Court did not inform the appellant whether he was being sentenced for defilement or incest. The appellant's counsel also filed Heads of Argument. All the grounds were argued together though ground four was abandoned. The gist of the arguments is that the sentence of 40 years imprisonment was excessive and should come to us with a sense of shock. According to counsel, the appellant was convicted of an ordinary case of defilement which should have attracted a minimum mandatory sentence of 15 years as held in the case of Sikaonga v The People 1 • In that case, there were aggravating circumstances which warranted a severe sentence above the minimum, which is not the case in casu. Thus, the appellant being a first offender is J7 entitled to leniency, which should have been reflected in the sentence. The sentence of 40 years does not reflect leniency at all. The case of Phiri v The People2 was relied upon where the Supreme Court held that: "A first offender should be shown leniency although circumstances may make the application of such leniency minimal. The reason for dealing with a first offender leniently is in the hope that a severe sentence is not necessary and that a lenient sentence is sufficient to teach a previously honest man a lesson." It was submitted that the m1n1mum sentence of 15 years in cases of defilement was intended to be a deterrent sentence as it is a stiff punishment, as it is. We were urged to allow the appeal as the sentence of 40 years 1s harsh and should come to us with a sense of shock. The respondent filed heads of argument in response. The Senior State Advocate Ms. Nyangu, who appeared for the respondent, argued that the lower court was on firm ground when it imposed the sentence of 40 years, having regard to the circumstances of the case, such as the tender age of the prosecutrix then aged 8 and the fact that the appellant was her uncle. Our JS decision in the cases of Modester Kalaba v The People3 was relied upon as authority that: "It is now settled law that the tender age of the prosecutrix in a sexual offence can be an aggravating factor. It is also settled that the aggravation increases as the age of the prosecutrlx reduces." Furthermore, that we also observed in that case that, the fact that the appellant defiled a child he was left to take care of, was an aggravating factor as it was a breach of trust. In the current case, at page 24 of the record of appeal, the court below properly reasoned that traditionally, family is a source of protection, as such, the appellant breached his natural duty of trust. We were urged to uphold the sentence as this was no ordinary defilement due to the aggravating factors. We have considered the arguments by both counsel. The issues, the appeal raises is whether being a first offender the appellant was entitled to be sentenced to the minimum of 15 years. And, whether there are aggravating circumstances which warranted 40 years imprisonment. J9 The appellant is essentially, asking us to set aside the 40 year sentence and substitute it with the minimum of 15 years. It is settled law that there are guidelines to be followed before an appellate court can interfere with a sentence meted out by a trial court. The case of Jutronich and others v The People4 enunciated the guidelines as follows: "In dealing with appeals against sentence, the appellate court should ask itself these three questions: 1. Is the sentence wrong in principle? 2. Is the sentence so manifestly excessive as to induce a state of shock? 3. Are there exceptional circumstances which would render it an injustice if the sentence was not reduced?'' These guidelines were reiterated by the Supreme Court in cases such as Nafutali v the People5 and Berejena v The People6 . The question is, have these guidelines been met in casu? We note the arguments that being a first offender, the appellant was entitled to leniency. And, that the circumstances of the case disclosed an ordinary case of defilement for which he should have been sentenced for the minimum of 15 years. JlO Having had regard to the circumstances of the case, we agree with the respondent's counsel that this was not an ordinary case of defilement. We agree with her as we held in Modester Kalaba v The People, supra, that the tender age and the fact that the appellant was an uncle to the prosecutrix are aggravating. The Supreme Court, in its decision in the case of Solomon Chilimba v The People6 elucidated that: "Unless the case has some extraordinary features which aggravate the seriousness of the offence, a first offender ought to receive the minimum sentence.,, The court below when sentencing the appellant to 40 years imprisonment observed that the circumstances of the case were disturbing as he had defiled his 8 year old niece. And, that he used family as a source of abuse. As alluded to, already, the tender age and being an uncle aggravated this case. We therefore cannot fault the trial Judge for imposing a stiff sentence of 40 years imprisonment. The sentence is not wrong in principle and does not come to us with a sense of shock. The circumstances of the case do not entitle the appellant to leniency despite him being a first offender. Jll We are of the firm view that this is not a proper case in which as an appellate court we can interfere with the sentence imposed by the lower court on any of the guidelines enunciated in cases like Jutronich and others v The People4 . We therefore, find no merit in all the three grounds of appeal. The appeal is dismissed for lack of merit. The sentence imposed by the lower court is upheld. C. K. MAKUGU COURT OF APPEAL JUDGE ~T. GOTI COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE J12