The people v Alphonsious Cheelo Hamasuku (APPEAL No. 59 of 2016) [2017] ZMCA 167 (3 May 2017)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (Civil Jurisdiction) Between: THE PEOPLE AND APPEAL No. 59 of 2016 APPELLANT ALPHONSIOUS CHEELO HAMASUKU RESPONDENT CORAM: Mchenga, DJP, Chishimba and Khndolo, JJA On 7th February 2017, 81h February 2017, 101h April 2017 and 3rd May 2017 For the Appellant: A. K. Mwanza, State Advocate with E. Mulele, State Advocate, National For the Respondent: M. K. Liswaniso, Legal Aid Counsel, Legal Aid Board Prosecution Authority · JUDGME~IT Mchenga, DJP delivered the Judgment of the Court Cases referred to: 1. Benai Silungwe v The People (2008] 1 ZR 123 i I 2. Philip Mungala Mwanamubi v The People (SCZ 9 /2013) 3. Jutronich v The People (1965) Z. R. 9 4. Kalunga v The People (1975) Z. R. 72. 5. Alubisho v The People [1976] Z. R. 11 J2 6. Benua v The People [1976) Z. R. 13 7. Solomon Chilimba v The People [1971 J Z. R. 36 8. Gideon Hammond Millard v The People 1998 S. J. 34 I 9. Katongo v The People [1969} Z. R. 30 10. Stanley Kasungani v The People (1978] Z. R: 260, 11. Katongo v The People [1969] Z. R. 30. 12. Josepei Masiye Phiri v The People (1977) Z:R. 251 ' • 13. Kaambo v The People [1976} Z. R. 122 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia ; 2. The criminal Procedure Code, Chapter 88 of the Laws of Zambia 3. The Court of Appeal Act, Act No. 7 of 2016 Works referred to: 1. Block's Law Dictionary, 10th Edition, Thomson Reuters • Alphonsious Cheelo Hamasuku, the respondent, appeared before the High Court sitting at Livingstone charged with one count of the offence of Causing Grievous Harm contrary to section 224 (a) of the Penal Code. He a d mitted the charge. The particulars of offence alleged that on 20th August 2015, at Pemba, in the Pemba Distric t of the Southern Province of the Republic of Zambia, he caused grievous harm to Beauty M ukuni. J3 According to the facts read out in court, the ~espondent had for a long time suspected that his girlfriend, Beauty Mukuni, wdls having an affair with another man. On 20th August 2015, he invited her to visi,t his house but she refused. This annoyed him and he followed her to her house with the intention of confronting her on the issue. He forced his way in to the hquse and got into her bedroom where he woke her up. An argument broke out'between the two, in the course of which he struck her on the head with an axe handle. She was unconscious • when he left the house. Beauty Mukuni was admitted to Monze Mission Hospital and found to have suffered a bilateral haematoma and deep scalp laceration. She was later transferred to Lusaka Trust Hospital where she underwent a craniotomy surgical procedure. Dr. Henry Mulenga, a Consultant Physician, prepared a medical report that was available during the hearing. He reported that ,a CT brain scan revealed that Beauty Mukuni suffered linear fractures in the rig'ht temporal bone, left posterior • zygomatic arch and lateral wall of the right ~rbit. She also suffered acute subdural hematoma in the left temporal occipital and the junction of the left frontal parietal region with multiple focal hemorrh1agic contusions in the cortex of the left occipital and temporal areas. During the craniotomy 120 milliliters of dark blood was drained from her left cranium. J4 Following his admission of the charge and the facts, the trial Judge found the respondent guilty as charged and convicted him. He was sentenced to 2 years I imprisonment with hard labour. Dissatisfied with that sentence, the Director of Public Prosecutions has appealed to this court. Two grounds of appeal have been advanced and these are as follows: • 1. That the trial court erred in law when it ' sentenced the respondent to a term of two years imprisonment for a felony with a maximum life sentence . 2. That the trial Judge erred when he misapplied the principles of sentencing relation to the gravity and nature of the offence committed as stated in the statement of facts. At f he hearing, Mrs. Mwanza, who appeared on behalf of the Director of Public Prosecutions, indicated that she would rely .on the appellant's heads of arguments filed on 28th of March 2017. Mrs. Liswaniso, who appeared for the respondent, equally relied on the respondent's l;'ieads of arguments filed on l Qth ' • April 2017, which she complimented with oral submissions. Though the two grounds of appeal were argued as one by both parties, we find it convenient to first deal with Mrs. Liswaniso's submission that this appeal is not competent because the Director of Public Prosecutions can only appeal on a point of law. JS In support of her preliminary objection, Mrs . . Liswaniso submitted that section 321 A(l) of the Criminal Procedure Code ofiily allows the Director of Public !I Prosecutions, to appeal on a point of law. She cannot appeal on a point of fact or fact mixed with law. She submitted that this appeal is not on a point of law because the Director of Public Prosecutions . has not argued that sentence ' imposed by the trial Judge was in error of law ·or was in excess of or contrary to the sentence lawfully provided by the laws. Sh$ has instead questioned the trial Judge's discretion by pointing out that the sentence was inadequate . Though Mrs. Liswaniso referred to section 321 A' of the Criminal Procedure Code in her arguments, we find that this provision is not applicable because it relates to a ppeals from the Subordinate Courts to the High Court. The provision applicable to this case is section 14 of The Cqurt of Appeal Act. The relevant parts of this provision read as follows: (1) This section applies to the exercise of the jurisdiction of the Court to hear appeals in criminal matters from a judgment of the High ~ourt sitting as a court of first instance . (2) .. . (3) ... (4) If the Director of Public Prosecutions is dissatisfied with the judgment of the High Court in the exercise of Its original jurisdiction on .a point of law, the Director of Public Prosecutions may appeal to the Court from such judgment. Notwithstanding our finding that Mrs. Liswaniso has referred to the wrong provision, we find that her arguments are still valia because under section 14 (4) • • J6 of the Court of Appeal Act, the Director of Puolic Prosecutions can similarly only appeal on a point of law. In Block's Law Dictionary, (1) the word or term •·•.law" is defined as follows: law. 1. ..... 2. The aggregate of legis·lation, judicial precedents, and accepted legal principles; the body of : authoritative grounds of judicial and administrative action; esp., the ,body of rules, standards and principles that the courts of a particular Jurisdiction apply in deciding controversies brought before them< the law of the land>. 3. The set of rules or principles dealing with a specific 0rea of a legal system< copyright law>. 4 . ..... . (the underlining is ours for emphasis) From these definitions, it is clear that the "law" ,includes rules and principles that are used to determine any issue that is before the court. Though section 224 (a) ' of the Penal Code gives a Judge who has convicted an offender for the offence of causing grievous harm the discretion to impose an appropriate sentence, the • imposition of such sentence is subject to the principles of sentencing that the courts have enunciated over years in their Jvdgments. It follows, that an appeal that is premised on the failure of a court to apply the principles of sentencing, which are part of the law, is an appeal on a poi,nt of law. J7 In this matter, the Director of Public Prosecutioh contends that the trial Judge failed to apply the principles of sentencing \ when he imposed a 2 years sentence for an offence that carries a maximum sentence of life imprisonment. Since the appeal is premised on the applic?tion or misapplication of the ' principles of sentencing, which is a point of law, we find that it is competent and we have the jurisdiction to hear it. - In the support of the two grounds of appeal, Mrs .. Mwanza submitted that even if the respondent was entitled to leniency for pleading guilty, the sentence of 2 years imprisonment was inadequate because of. the injuries that Beauty Mukuni suffered and the prevalence of the offence. She also submitted that the facts established that the respondent forced his way into her house and hit her with an axe handle. She was then required to undergo a craniotomy, brain surgery, as a result of the injuries she suffered. • Mrs. Mwanza also submitted that consideration $hould have been given of the I fact that the attack was an act of gender based violence, which is on the increase in this country. There is need for the cout'ts to impose sentences that will I deter others from committing this kind of offence.' She then referred to the cases of Benai Silungwe v The People (1 ), M. Syakalonga v The People (2) and Philip Mungala Mwanamubi (3) and submitted that the .jnjuries the respondent J8 inflicted and the prevalence of the offence were aggravating factors that the trial Judge should have considered when imposing the sentence. Finally, Mrs. Mwanza referred to the cases of Jutronich v The People (4) and Kalunga v The People (5) and submitted that ,the sentence of 2 years, must in the circumstances of this case, come to this · court with a sense of shock to warrant its substitution with a more severe sentence that takes into account the factors that aggravated the assault . • In response, Mrs. Liswaniso referred to section 6, of the Criminal Procedure Code and the case of Alubisho v The People (6) and submitted that it was within the discretion of the trial Judge to impose a 2 years sentence because the offence did not provide for a mandatory minimum sentence. She also referred to the case of Benua v The People (7) and subniitted the sentence of 2 years imprisonment should not come to this court with a sense of shock because the respondent was a first offender who readily admitted the charge. Mrs. Liswaniso also referred to the case of Solomon Chilimba v The People (8) and submitted that since there were no aggravating factors. The respondent only struck his girlfriend once with an axe handle and the trial Judge was in the J9 circumstances entitled to impose the 2 years ·:sentence. She also argued that I there was nothing extraordinary that aggravd,ted the circumstances in which the offence was committed. Finally, Mrs. Liswaniso submitted that the two ye?rs sentence should not come to us with a sense of shock. She referred to the case of Gideon Hammond Millard v The People (9) and submitted that this court should be slow to interfere w ith the trial court's discretion to impose sentences unless they come to it with a sense of shock. We have considered the evidence on record, the medical report and t he ! submissions by counsel. We agree with Mrs. Liswaniso that since the off.ence of causing grievous harm, under section section 224 (a) of the Penal Code, does not provide for a mandatory minimum sentence, it was within th~ discretion of the trial Judge to impose a sentence that he found to be appropriate. But as we have indicated earlier on, in the exercise of such discretion, the ::rial Judge was required to take into consideration the established principles ot sentencing that include both mitigating and aggravating factors. • JlO In a charge of causing grievous harm, mitigating factors can include the foci that the offender has no previous conviction;'.: the offender has plead guilty; the ' injury suffered was minor or not serious; the Yictim was the aggressor and the offender rendering assistance to the victim aft:er committing the offence . On the other hand, aggravating factors can include: the gravity of the injury suffered, ' ,, the use of an offensive weapon, the offenaer being the aggressor and the prevalence of the offence . Mrs. Liswaniso has submitted that there were ri,o aggravating factors in this case because Beauty Mukuni was only struck once. In addition, the respondent is a first offender who readily admitted the charge: In the case of Stanley Kasungani v The People (10), an assault case in which there was need to assess the sentenc e, the Supreme Court held, inter alia, that: Medical evidence as to the nature and severity qf the injuries sustained by a victim of an assault is essential to a proper consideration ot.' the question of sentence, and may in some coses be essential also on the question of verdict. While we agree with Mrs. Liswaniso that the respondent's single strike goes to his credit, to determine the appropriate sentence)here is need to consider it in the I light of the medical report and the general\ circumstances surrounding the assault. Jll In this case, the respondent was the aggresso,r and he attacked Beauty Mukuni in her bedroom after forcing his way in on the:ibasis of a flimsy grievance against \ ;, her. He struck her w ith an axe handle, an offensive weapon, and she suffered serious injuries resulting in loss of consciousness and the need for brain surgery in which 120 milliliters of blood where extracted. Having examined the medical I ; report, we find that the respondent must hav~ used an extremely high amount of force for that single blow to cause the inj0ries that Beauty Mukuni suffered. This was a vicious and unwarranted attack on:: a defenseless person. In the face of these facts, it canno t be seriously argued ,:that there were no aggravating factors. The trial Judge did not indicate the factors he. considered before imposing the sentence. which was within his right; see the cqse of Katongo v The People {11). ,' However, it is our view that had he considered the facts of the case, the medical report, factors that mitigated or aggrdvated the respondent's situa tion, ,. e he would not have arrived at a sentence of 2 years imprisonment. In the case of Josepei Masiye Phiri v The People (12), the Supreme Court held that: (I) An appellate court should not lightly Interfere with the discretion of the trial court on the question of sentence, particularly when the issue is whether or not to I enhance that sentence; It is not a sufficientiground for interfering that the J12 appellate court considers that the senten·ce imposed by the trial court was lenient or even very lenient. {ii) Before the appellate court is entitled tp interfere and substitute an enhanced ·I sentence it must regard the sentence· imposed . by the trial court as totally I inadequate to meet the circumstances of the case. Further, in the case of Kaambo v The People (1 _3), that court also held that: (i) The basis of sentence must always b ~ the proper sentence merited by the offence itself, after which the court considers whether the accused person is entitled to leniency. (ii) it is not proper for an appellate court to iracrease a se ntence unless the sentence imposed by the trial court is totally inadequate. (iii) for an appellate judge to substitute his own view as to an appropriate sentence for that of the trial court is an error of principle. First of all, the charge that the respondent f0ced was more serious than the c harge of causing grievous harm under section 299 of the Penal Code. Under section 224 (a) of the Penal Code, the offender, in addition to causing grievous harm, does so with the intention to maim, disfigure or disable. This is the reason why the maximum penalty is higher than the ;former. In view of this distinction ' I and the aggravating factors that we have owtlined, the sentence of 2 years I imprisonment in this case comes to us with I a sense of shock. It is totally e inadequate. We agree with Mrs. Mwanza's submission that qssaults that can be classified as being gender based, are on the increase and deterrent sentences must be ' imposed to stem them out. The impunity that is associated with such attacks, as - J13 can be seen from this case, must be c ·ondemned by the imposition of appropriate deterrent sentences. This appeal succeeds and the 2 years sente1)ce that was imposed by the trial ' Judge is set aside. In its place, we impose a s~ntence of 10 years imprisonment with hard labour and it will run from the day the respondent was arrested. . . . . . . !,:l, C. F. R. Mchenga S DEPUTY JUDGE P-RESI ., - ~ ~ - --- ~---.; • • • • • • ♦ • • ♦ • ♦ ♦ • • • • • • o • ♦ • ♦ • • ♦ • ♦ I ♦ o ♦ ♦ • • • • • • ♦ • F. M. Chishimba M. M. Kondolo SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE