Francis Ngosa v The People (Appeal No. 106 of 2006) [2006] ZMSC 49 (8 March 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 106 OF 2006 AT LUSAKA AND NDOLA (Criminal Jurisdiction) BETWEEN: FRANCIS NGOSA APPELLANT and THE PEOPLE RESPONDENT Coram: Chirwa, Mushabati, JJS and Kabalata, Ag. JS. On 17th January, 2006 and 8th March, 2006 For the Appellant: A. C. Nkausu - Principal Legal Aid Counsel For the Respondent: J. Mwankatwe - Dep1.1ty Chief State Advocate ' JUDGMENT Musbabati, JS., delivered the judgment of the Court. This is an appeal against sentence only. The appellant was convicted, on his own plea of guilty by the Subordinate Court of the first class for the Ndola District, of defilement of a girl under the age of 16 yea.rs. The particulars of offence alleged that the appellant Francis Ngosa on a date unknown but between the month of January and February, 2005 at Ndola had unlawful carnal knowledge of a girl under the age of 16 years namely B N The appellant was committed to the High Court for sentencing in terms of Section 217(1) of the Criminal Procedure Code Cap. 88 of the Laws J 2 of Zambia. The High Court sentenced him to 25 years imprisonment with hard labour. In sentencing the appellant took into account the prevalence of the offence in the country and the fact that the victim had become pregnant. The ground of appeal was that:- The learned sentencing judge erred when she denied the appellant any leniency as a first off ender. Mr. Nkausu, the learned counsel for the appellant submitted that it is trite law that an offender who has readily admitted the charge is entitled to leniency. The learned Deputy Chief State Advocate submitted that although the appellant was a first offender who had pleaded guilty to the charge he still deserved no leniency because of the gravity of the offence and abhorrence with which the society viewed the offence. The court had therefore, a duty to protect the vulnerable members of society, especially children. We have considered the submissions by both counsel. It is true that the offence of defilement has become prevalent in the country and that there is an out-cry from the members of a public that stiffer punishment against offenders be imposed. The offence of defilement attracts a maximum sentence of life imprisonment which goes to demonstrate how serious it is. We must however, state that each case must be treated on its own merit. Courts must not be swayed into imposing heavier punishments on offenders because of the general nature of the offence or sentiments expressed by society. Any sentence imposed must be commensurate with the offence committed and the circumstances under which it was committed. J 3 We have considered the circumstances of this case. Much as we appreciate that the appellant deserved a heavier punishment we feel that a sentence of 25 years was on the higher side. It therefore, comes to us with a sense of shock. We are therefore, setting it aside and in its place we are imposing one of 15 years imprisonment with hard labour back-dated to 10th ' May, 2005 the date of his arrest. Appeal against sentence is allowed. ~mrwa SUPRKME COURT JUDGE s abati OURTJUDGE alata COURT JlJDGE