Siame v People (SCZ Appeal 13 of 2008) [2008] ZMSC 145 (6 June 2008)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 13/2008 AT NDOLA (APPELLATE JURISDICTION) IN THE MATTER BETWEEN: DAVISON SIAME APPELLANT AND THE PEOPLE RESPONDENT Coram: Mambilima, DCJ, Chitengi JS, Kabalata, AJS On 5th and 6th June, 2008. For the Appellant: Mr. L. E. Eyaa, Deputy Director, Directorate of Legal Aid For the Respondent: Mrs. R. M. Kuzwayo, Deputy Chief State Advocate JUDGMENT Chitengi, JS., delivered the Judgment of the court The Appellant pleaded guilty before the Resident Magistrate to a charge of defilement contrary to Section 138(1) of the Penal Code Chapter 87 of the Laws of Zambia. After convicting the Appellant on his own admission, the learned Resident Magistrate committed the Appellant to the High Court for sentence in terms of Section 217 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia. The learned Judge in the High Court sentenced the Appellant to 16 years imprisonment, after taking into account the fact that the Appellant pleaded guilty. The particulars of the charge alleged that the Appellant on a date unknown but between the month of January 2003 and 17th November, 2003 had carnal knowledge of Noria Chama, a girl under the age of 16 years. The facts in support of the charge, which the Appellant admitted to be correct, are that during the period in question the Appellant had on several occasions carnal knowledge of the prosecutrix then aged 10 years. Medical examination confirmed that tlie prosecutrix had been sexually violated. When arrested, the Appellant freely and voluntarily admitted the charge. And on the facts we are satisfied that the Appellant was properly convicted of the offence of defilement. The Appellant appeals to this court against sentence only. Mr. Eyaa, the learned Deputy Director, Legal Aid, for the Appellant, submitted that at the time the offence was committed there was no minimum mandatory sentence of 15 years. For this reason, Mr. Eyaa submitted that the court should have imposed a sentence less than 16 years. Further, Mr. Eyaa submitted that the Appellant pleaded guilty; is a young man of 27 years; is remorseful and pleads for maximum leniency. Mrs. Kuzwayo, the learned Deputy Chief State Advocate, submitted that although there was no minimum mandatory sentence at the time the offence was committed, the sentence imposed was appropriate. She pointed out that the sentence for this offence is life imprisonment. We have carefully considered the submissions of Counsel and the comments of the learned sentencing Judge. Mr. Eyaa’s submissions tend to suggest that the learned sentencing Judge was influenced by the change in the law. This is not correct. The law relating to minimum mandatory sentence for defilement was enacted in 2005 but the Appellant was sentenced on 8th March 2004. In imposing the sentence of 16 years imprisonment, the learned sentencing Judge was influenced by the prevalence of the offence of defilement and the young age of the prosecutrix, 10 years. On the facts of this case we are of the view that although the Appellant is a first offender and pleaded guilty he deserved a stiff penalty because the prosecutrix was only 10 years old and the Appellant had developed a habit of defiling the prosecutrix over a period of time. The Appellant even put the prosecutrix in fear by strongly warning her not to report to her parents. In fact, this is an unprecedented case of defilement where the Appellant, with impunity, made the prosecutrix who was of an impressionable age his defacto wife for one year. These were aggravating circumstances and the Appellant cannot expect much leniency. We cannot therefore, interfere with the sentence to the extent that we reduce the sentence. Rather we are constrained to increase the sentence. In the event, we quash the sentence of 16 years imposed by the learned sentencing Judge and substitute it with one of 20 years imprisonment with hard labour with effect from date of the Appellant’s arrest, 18th November, 2003. This sentence should send the message that in order to protect our women folk this court will at all costs weed out from society persons found to be undesirable and misfits. We, therefore, dismiss this appeal. Before we leave this matter, we wish to comment on the manner the particulars of the charge were framed. The facts reveal that the Appellant had developed a system of defiling the prosecutrix on many occasions over a period of time. The paticulars should, therefore, have stated that the Appellant on diverse but unknown days between the month of January 2003 and 17th day of November 2003 defiled the prosecutrix etc etc.. I. C. MAMBILIMA DEPUTY CHIEF JUSTICE P. CHITENGI SUPREME COURT JUDGE AG/SUPREME COURT JUDGE 5