Fanwell Simuntanga and Anor v People (SCZ Appeal No. 13 of 1993) [1993] ZMSC 147 (5 October 1993)

IN .1l£ SfllJ£ QUO' (F lMIIA S::Z/gllll It>.13(119!13. tlllBC /fJ UISMCA (crtalnll aildlcttcn) FNIBJ. SDllffJla MSllDM&B\ vs 11£ PBJU cor•s s.11,. Challa and Muzylllba, JJJ.s. 5th October. 1993. For the appellants. Mr. S. J. Banda of LWIIIQ_I Chulbers. For the State. Mr. L. Muuka. Assistant Senior State Advocate. vi Slkala J.s. delivered the Judgileflt of the court. JUDGMENT The appellants were convicted of Steck theft by the Subordln.te Court of tJle ftnt Class. holden at Kebwe ~tr1ry ~ Section 275 of the Penal Code, Cap 146 of the Laws of Zlllbta. The particulars of the offence alleged that. the tw appellants, oo 1 date unknown but between 9th April 1992 and 11th April, 1992, at Kabwe, tn the Central Province of the RepubUc of Zambia, Jointly IAd whllst acting together dld steal tblrty heads '1f cattle valued at K850.ooo.oo the property of '-rge Magat. They .pleaded guilty to Ute charge Ind were sentenced to flve years lmprtsoraent with hard labour. They appealed to the High Court. On ·appeal to the Htgh Court, the le1mec1 appellate judge hid this to s11:• "Now turning to sentence, I appreciate the trial court 2/ •• "Now turning to sent,ence. I appreciate the trial court reached-the maximum of ~is sentenci ng powers but '· 1 consider the stHllng of so many anl•ls to be outrageous and deserves a bit ac,re heavier punlstaent than the statutor1 ■int . . sentence of five years lmprlsomant wltb hard Jlbour. .· , I set that ulde and_ t■pose nine years tmprlsoment wlth hard laba.lr. · with effect ,,_ today plus the c&Qs accused were Nlllftded ln custody.• on behalf or the appellants. Mr. Banda Initially indlc1ted that the tPPNl was against both convlcUan and sentence but subsequently withdrew the appeal against convlttlon 111d advanced sublllsslons only OIi the enbln ·-rn:- of sentence by the Hlgb Court. TIie brief sublllulon was that the sentence of nine YH" froa five ,-rs i111>rt account U..t the appelllflts vere first offenders and the ant•ls wltb hlrd labour vu too excessive. tulnt Into Md been recovem. We agree wlth the sublllsslons by the leamed defence c . . . 1. It would appeer to us that tlM learned appellate judge ORiy took Into •ccount the negative fact against the IJ)l)ellants n111e11. the nu■ber of amt•l• stolen. The positive facts 111 favour of the appellants were ignored, that they were first offenders, who pleaded 11utlt1 and thlt all the anl•ls were recovered. The sentence of ratne years ta the ciraastences where the appellants were first 3/-... -a. offenders and pleaded guilty c::omes to us wlU a sense of sbOCk tnd wrong ln 1>rl11Glple. Accordingly, we set aslde the •entenc• of nine years laprtsoraent wltb hard labour. I" Its piece we restore the sentence laposed by the learned principal Resident Miglstr1te MllllJ, flye years l1111>rlsonment with hard labour wltll effect ftoa the date of arrest. To that extent. the appeal 1ueceedl. -·~······························ E. L. Sakala, SUPREME COURT JUDGE. ••••••••••••••••••••••••••••••• M. S. Challa, SUPREME COURT JUDGE. ••••••••••••••••••••••••••••• W. M. Muzyamb&, SUPREME CUURT JUDGE.