Cosmas Kalunga Kamanga v People (Appeal No. 49/2005) [2006] ZMSC 57 (8 March 2006)

IN THE SUPREME COURT OF ZAMBIA AppealNo.49/2005 HOLDEN AT LUSAKA (Civil Jurisdiction) COSMA$ KALUNGA KAMANGA 1st Appellant AND THE PEOPLE Respondent Coram: Chirwa, Chibesakunda and Chitengi JJS. on 7 th June, 2005 and 8th March, 2006. For the Appellant : Capt. F. B. Nanguzyambo - Director of Legal Aid Counsel For the Respondent: Mrs. J. C. Kaumba - Chief State Advocate JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. Alubisho V The People (1976) ZR 246 2. Jutronich Shutts and Lukin V The People (1965) ZR 9. 3. Kalunga V The People (1975) ZR 72 4. Lungu Mika V The People (1970) ZR 61 Statute referred to: - l. The Criminal Procedure Code Chapter 88 of the Laws of Zambia Section 217. - J2 - When we heard this appeal we allowed it, quashed the sentence of 15 years imprisonment imposed by the High Court and restored the sentence of 60 months imprisonment imposed by the Subordinate Court. We said then that we would give our reasons later. We now give the reasons. The history of this case leading to this appeal can be briefly stated. On the 29th December, 2003, the Appellant was convicted by a Magistrate of the First Class sitting at Kasama of the offence of attempted rape and ordered to suffer 60 months imprisonment with hard labour. The Appellant appealed against his conviction to the High Court sitting at Kasama. The High Court dismissed the Appellant's appeal and quashed the sentence of 60 months imposed on the Appellant and substituted it with one of 15 years imprisonment with hard labour. It is against the sentence of 15 years hard labour that the Appellant now appeals to this Court. The fact that the Appellant committed the offence of attempted rape is beyond doubt. We are, therefore, satisfied that the Appellant was properly convicted. The Appellant filed one ground of appeal, which is that the learned trial Judge erred in law by increasing the sentence from five (5) years to fifteen ( 15) years with hard labour, when - J3 - the same was not totally inadequate to meet the circumstances of the case. Captain Nanguzyambo, learned Director of Legal Aid, filed written heads of argument on which he relied. In his written submissions, Captain Nanguzyambo submitted that the learned appellate Judge fell into error when he increased the sentence. He said the learned appellate Judge could increase the sentence only if the sentence imposed by the lower Court was totally inadequate in the circumstances of this case. It was Captain Nanguzyambo's submission that the principles regarding increasing of a sentence by an appellate court are laid down in the case of Alubisho V The Peoplef1J where, we cited with approval and minor modification, the decision of Blagden, Chief Justice, in Jutronich Shutts and Lukin V The Peoplef2J and where he said:- " In dealing with an appeal against sentence the appellate court should, I think, ask itself three questions:- { 1) Is the sentence wrong in principle? (2) Is it manifestly excessive so that it induces a sense of shock? (3) Are there any exceptional circumstances which would render it unjust if the sentence were not reduced?" - J4 - The minor modifications we made were that we recast (2) above by adding the phrase "totally inadequate" so that it now reads: - "(2) Is it manifestly excessive or so totally inadequate that it induces a sense of shock?" Captain Nanguzyambo then emphasized that only when one or more of these conditions are present that an appellate court can interfere with a sentence imposed by the trial court. He argued that the sentence imposed by the trial court was not wrong in principle. Captain Nanguzyambo then referred to the learned appellate Judge's comments when sentencing the Appellant, and pointed out that it was clear that the learned Appellate Judge imposed the sentence of fifteen {15) years imprisonment because it was the sentence he was inclined to impose. It was Captain Nanguzyambo's submission that this was against the principle in Kalunga V The Peoplel3I where we said, inter alia, that:- "Jt is not proper to enhance a sentence simply because the appellate court, had it tried the case, would have imposed a somewhat greater sentence ...... " Finally, Captain Nanguzyambo submitted that it was improper for the learned appellate court to alter the trial Magistrate's sentence merely because the appellate court thought it might - 15 - have passed a different one which was 1n fact above the maximum available to the trial Magistrate. Mrs. Kaumba, the learned Chief State Advocate, quite properly, did not resist the appeal. We have carefully considered the evidence that was before the learned trial Magistrate and the submissions of Captain Nanguzyambo. We agree with the submissions that an appellate court can interfere with the sentence imposed by a trial court only when:- (lJ The sentence is wrong in principle. (2) It is manifestly excessive or so totally inadequate that it induces a sense of shock. (3) There are exceptional circumstances which would render it injustice if the sentence were not reduced. In Alubisho v. The Peoplel1J we said that except in cases where there are minimum or mandatory sentences the trial court has the discretion to select a sentence that seems appropriate in the circumstances of each individual case. We said further that an appellate court does not normally have such a discretion. Therefore, an appellate court will interfere in matters of sentence by the trial court only in the circumstances we have stated above. - J6 - In this case we find no ground upon which the learned appellate Judge should have interfered with the learned trial Magistrate's discretion to sentence the Appellant to 60 months imprisonment. The learned appellate Judge never said that the sentence was wrong in principle and how or that it was totally inadequate. Before passing sentence, the learned appellant Judge said: "On issue of sentence, the offence or attempted rape cames a maximum sentence of life imprisonment. I am sure the trial Magistrate would have wished a stiffer punishment was meted out but her hands were tied because she had limited powers. Sexual offences are on the increase in this country and it was time that the courts punished offenders appropriately. I do not consider five (5) years imprisonment as excessive." These reasons given by the learned appellate Judge fall far short of the principles laid down in Alubisho V The Peoplef1J and other cases justifying the appellate court's interfering with a sentence imposed by a trial court. The maximum punishment permitted by law and the prevalence of the offence above are not the deciding factors. The facts of each particular case will dictate the punishment. In this case there was only an attempted rape. However, senous one may consider the offence of attempted rape, we cannot say that a -J7 - sentence of 60 months imprisonment with hard labour is totally inadequate punishment for the attempted rape in this case. The learned appellate court said that the learned trial Magistrate would have wished a stiffer punishment meted out but her hands were tied because she had limited powers. We have searched the record of appeal but we have not found such comments by the learned trial Magistrate. We, therefore, are satisfied that the comments are in fact the learned Appellate Judge's own comments. What is clear to us is that the sentence of 60 months imprisonment with hard labour imposed by the learned trial Magistrate was arrived at consciously and deliberately after considering the circumstances of this particular case. We have no doubt that if the learned trial Magistrate thought that the Appellant deserved more than 60 months imprisonment she would have committed the Appellant to the High Court for sentence 1n terms of Section 217 of Criminal Procedure Code. We have dwelt long on the principles under which an appellate court may interfere with a sentence imposed by a trial court, not because our judgment finally rests on these principles, but because of late, there has been a recurrence of errors by the High Court in this area of law. - J8 - The serious misdirection by the learned appellate Judge was that the learned appellate court had no power to impose a sentence of fifteen (15) years imprisonment which is beyond the five {5) years sentencing powers of a Magistrate Class One. As we said in Lungu Mika V The Peop lef4J, on appeal, an appellant Judge cannot give a sentence which is not within the jurisdiction of the trial Magistrate. This principle equally applies to case under review by the High Court. For these reasons, we allow the appeal, quash the sentence of 15 years imprisonment imposed by the High Court and restore the sentence of 60 months imprisonment imposed by the Subordinate Court. The Appellant having been on bail most of the time during the trial, the sentence takes effect from 29th December, 2003, the date ordered by the Subordinate Court. ' . ~ >- · · · · · · · · · · ·· · · · · · · · · · · · · · ·~ · · · ·· · ·· · · · · D. K. CHIRW. A SUPREME COURT ':JUDSE ............ (t✓. ................. ..• L. P. CHIBESAKUNDA SUP ME COURT JUDGE ER CHITENGI SUPREME COURT JUDGE