Chiyumbi v People (Appeal 173 of 1983) [1987] ZMSC 43 (14 July 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 173 OF 1983 HOLDEN AT LUSAKA (Crininal Jurisdiction) BETH E E N : DICKSON CHIYUMBI Appellant vs THE PEOPLE Respondent CORAM: Ngulube, D. C. J Gardner and Sakala JJ. S 14th July, For the Appellant In person For the Respondent Mr. Chanda, Senior State Advocate JUDGMENT Ngulube, D. C. J., delivered the judgment of the court. The appellant pleaded guilty to a charge of manslaughter. The allegation was that on 15th January, 1985 at Mazabuka he unlawfully caused the death of Ngoma Tafwali. The appellant was sentenced to twenty-five years imprisonment with hard labour and now appeals against the severity of that sentence. The upshot of his grounds of appeal is that he should have been given more credit for pleading guilty to the offence which he regrets and which he committed by misfortune and that he was a first offender who had family responsibilities and who had not committed any offence for forty-five years. He also complains that the learned trial judge wrongly used certain facts-to which we shall refer- to order to assess the sentence. The facts of the sase were hhat the deceased was an old-lady aged seventy years. She was a Tumbuka lady who seemed to have strayed to Mazabuta where she was wandering aimlessly. The appellant offered to escort her to a branch chairman of the Party but then changed his mind and went home. The old lady followed him. On the way she was speaking a language he could not understand. He assaulted her for following him around when he was telling her to go away. The facts which were read at the trial had originally alleged that the appellant had, or attempted to have, carnal knowledge of this old lady. The appellant objected and by 2/..................consent -J2- consent the facts were amended to delete any reference to such attempt. However, when the learned trial judge came to assess the sentence he used the allegation that the appellant attempted to have carnal knowledge as an aggravating feature. Once the facts were amended no such allegation was before the court and the learned trial judge clearly fell into error when he used that fact to aggravate the sentence. We find that the learned trial judge erred in principle and the sentence passed on that basis cannot stand. We set aside the sentence of twenty-five years. According to the medical evidence which was before the court, the old lady died from multiple injuries which iniluded five fructured ribs, ruptured spleen and sundry other injuries. We find that this was a bad case of manslaughter involving as it did an old lady who was obviously in need of assistante. We consider that an appropriate sentence for this type of offence and in the circumstances should be ten years imprisonment with hard labour and this will take effect from 23rd January, 1985. The appeal succeeds to that extent. M. S. Ngulube DEPTUY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE