Elias Chilufya v People (APPEAL NO. 136/2011) [2013] ZMSC 51 (8 October 2013)

Jl IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA AND LUSAKA APPEAL NO. 136/2011 BETWEEN: ELIAS CHILUFYA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mumba, Act. DCJ, Lisimba and Hamaundu, Acting JJS On 5 th February, 2013 and 8 th October, 2013 For the Appellant: Ms. Mukulwamutiyo, Legal Aid Counsel: Legal Aid Board For the State: Ms. M. T. Mumba, Acting Senior State Advocate: National Prosecution Authority JUDGMENT Mumba, Act. DCJ, delivered the Judgment of the Court. Cases referred to:- 1. Noah Kambobe Vs The People (2002) ZR, 57 2. M. S. Syakalonga Vs The People ( 1977) ZR, 61 Legislation referred to:- 1. The Penal Code, Chapter 87 of the Laws of Zambia J2 The appellant was convicted on one count of unnatural offence contrary to section 155 of the Penal Code, Chapter 87 of the laws of Zambia. The particulars were that the appellant on 15th September, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia had unlawful carnal knowledge of the prosecutrix against the order of nature. The facts are that the appellant who was a neighbour to the family of the prosecutrix, a girl aged 3 years, was at home washing his clothes. Afterwards, he went and bought opaque beer which he sat down to drink at his house. Among the children playing around was the prosecutrix. The appellant produced money which he gave to one of the children to go and buy cigarettes which was done. After a while, he produced some more money and sent one of the children to go and buy sweets. The rest of the children accompanied the one who went to buy sweets except the prosecutrix who remained alone with the appellant. All along, PW 1, Bridget Mawere, one of the neighbours who was cooking outside her house was watching the events. PWl went inside her house briefly, upon going back outside she did not see the appellant and the prosecutrix. She went to the house of the appellant where she heard the child crying inside the house of the appellant. PWl went to look for the prosecutrix among the other children but did not find her. She went back to the appellant's house where she heard the child still crying. PW 1 then called for another neighbour, Judith Mumba, to help her get the prosecutrix from the appellant's house. They went and knocked at the door and asked him why the prosecutrix was locked inside his house. The appellant opened his door slightly and pushed the prosecutrix out of the house. PWl and her neighbour noticed that the prosecutrix had spenns coming out of her mouth which was swollen, she was crying, she could not J3 even talk. PWl called the landlord, later, the father to the prosecutrix arrived at the scene where they discussed what had happened. Thereafter, the landlord apprehended the appellant. Upon being apprehended by the landlord, the appellant denied any knowledge of the incident. The medical evidence showed that the child suffered oral sexual assault whereas her private parts were found to be normal. Her clothes had blood stains and were found to be stained with semen. PW2, Agness Simfukwe, the mother to the prosecutrix, was informed of the incident, when she checked the child's mouth, she saw some sores. When put on his defence, the appellant told the court that when he decided to go and buy soap, he found two girls playing around his house. He sent them to go and buy cigarettes for him which they did. Later, as he was in the toilet he heard a child screaming, when he came out he saw a dog crossing his yard. He left for the barber shop to have a haircut. Upon his return that was when the allegations were made against him. He told the trial court that when he was asked what he had done to the prosecutrix, he told the people that she was just one of the girls playing around his yard. Upon arrest he denied the charge. The evidence of the eye witness stood firm and the trial court properly found the appellant guilty as charged. He was referred to the High Court for sentencing. On the facts found by the trial court, the learned High Court Judge found that there were aggravating features to the case ~d sentenced the appellant to life imprisonment. He has appealed to this court against sentence. J4 The ground of appeal was that the sentence of life imprisonment was too excessive; that it did not disclose the leniency to which the appellant, as a first offender, was entitled to. Written heads of argument were filed to support the appeal against sentence. The gist of the submissions was that the appellant, as a first offender was entitled to leniency. That the sentence of life imprisonment when weighed against the minimum sentence of 25 years for the offence charged, the sentence was excessive and did not reflect the leniency due to a first offender. The case of Noah Kambobe V the People 1 was cited to support the submission that a first offender ought to be accorded leniency which should be reflected in the sentence. It was contended that the appellant is a young man of 26 years, he deserves a second chance as he is a first offender who is very remorseful for the offence he committed. He has learnt, during his time in prison that getting involved in crime is not profitable. It was pointed out that the sentencing learned Judge did not consider the mitigating factors on record. It was submitted further, that the approach of the sentencing Judge was a misdirection. It was also pointed out that the duty of a court, when sentencing, is not only to impose deterrent sentences for would be offenders but also to impose sentences befitting the circumstances of the crime committed, taking into consideration mitigating factors and the need to reform the offender. It was finally submitted that the life sentence was manifestly excessive under the circumstances, it should come to this court with a sense of shock. On these submissions, the court was urged to set aside the sentence of life imprisonment and to impose a lower sentence which would give the appellant a second chance to become a better citizen in the country. JS Ms. Mumba, on behalf of the State, left it to the discretion of the court to determine an appropriate sentence. We are grateful for the written submissions filed on behalf of the appellant. We have considered the circumstance of the case, we have also considered the mitigating factors and the points of law raised by the case cited. It is our considered view that the appellant carefully calculated his intentions towards the prosecutrix on the material date. He sent the children on errands, he bought opaque beer which he drunk. He then sent the other children to buy sweets knowing that sweets would entice almost all the children. Indeed, he managed to isolate the prosecutrix whom he quickly got inside the house and attacked, forcing acts of oral sex against the prosecutrix. The flow of semen from her mouth which was swollen such that she could not even talk was observed by the eye witnesses who included PW 1. The medical report confirmed the blood stains and the semen stains found on the clothes of the procecutrix. The prosecutrix was a girl aged only 3 years at the material time. The swollen mouth was clear evidence that the appellant had forced the young child to perform oral sex, a very serious offence against a very young victim. The appellant's expression of remorse came much much later after conviction on facts which were very clear. Such late expression of remorse has very little weight to move leniency on the part of the sentencing court and, indeed, it failed. In the Noah Kambobe 1 case, cited to support the submission on behalf of the appellant, we read that in that appeal, the appellant pleaded guilty to the charge of manslaughter, hence the leniency expressed in the sentence by this court. Besides, the formula used by the trial court to J6 arrive at the sentence in that case was wrong as was pointed out. The other point in Noah Kambobe 1 was that the period Kambobe spent in custody before trial was not taken into account, there was also evidence of drinking and drunkenness. In the appeal before us there was evidence of drinking but not drunkenness, this was not even raised by the appellant who did not even plead guilty. As already pointed out, the approach of the learned trial Judge towards sentence was not wrong, the expression of remorse was late. Deterrence and the prevalence of the offence was discussed by this court in the case of Syakalenga V The People.2 Indeed, in this appeal, the law already spelt out a sentence of 25 years as the minimum sentence for the charge faced by the appellant before us because of its seriousness and consequential psychological effect on the victim, yet, the appellant, in the face of such law, went ahead and sexually assaulted a young child aged only three years. The offence is described by law as an unnatural offence, which was the conduct the appellant engaged in, not with a fellow adult but with a defenceless young child. That is what is shocking and that is the conduct which the court must punish. Offences against children are prevalent in our society today. If the offence was not prevalent, if the occurrence of such cases were rare in our society and if the conduct of the appellant did not involve aggravating circumstances, then leniency can indeed be entertained as the appellant is a first offender. The record shows that after the brutal attack on the child victim, she was pushed out of the door by the appellant when the neighbours intervened. By such conduct, the appellant expressed wanton disregard for the welfare of the child victim after using her. In a case where aggravating factors are shocking and where the minimum sentence is already high, a life sentence cannot be said to be J7 excessive. This era has witnessed wanton disregard for the welfare and health of young children, in particular, young girls. Courts, whilst acting within the provisions of the law, must demonstrate society's outrage with serious approach befitting such prevalence and recklessness which has left many child victims with physiological damage while causing fear in the community. We find no merit in the appeal against sentence and we dismiss it. The life sentence is confirmed. F. N. M. MUMBA ACT. DEPUTY CHIEF JUSTICE M. LISIMBA I.\. CT. SUPREME COURT JUDGE E. M. HAMAUNDU ACT. SUPREME COURT JUDGE ii *-~- $ ,ir5¥ j - ~ - - - - - - - -- - - - -- - - -~ i " '~~ --