Njovu v People (Appeal 63 of 2017) [2018] ZMSC 602 (6 June 2018)

JI SELECTED JUDGMENT NO. 19 OF 2018 P. 703 IN THE SUPREME COURT FOR ZAMBIA APPEAL NO.63/2017 HOLDEN AT LUSAKA {Criminal Jurisdiction) BETWEEN: y—_____ —__ _ ____ O OF ZAMBIA AT* ISAAC NJOVU” p—----- VS ‘ 2013 THE PEOPLE SUPRfTT COURT registry APPELLANT RESPONDENT PO BOX 50067 Lusaka _ ___________ Coram: Phiri, Mutuna and Chinyama, JJS For the Appellant : On 8th May 2018 and 6th June 2018 -w Mrs. Lukwesa, Legal Aid Counsel, Legal Aid Board For the Respondent : Mrs. S. Chinyama - Kachaka National Prosecution Authority JUDGMENT MUTUNA, JS. delivered the judgment of the court. Cases referred to: 1} Kalunga v The People (1975) ZR 94 2) Chomba v The People (1975) ZR 314 3) Jose Antonio Golliadi v The People Appeal No. 26 of 2017 J2 P.704 4) People v Payton, 161 Mise. 2d 170, 174, 612 N. Y. S. 2d 815 (N. Y. Crim. Ct, Kings County, 1994). Other works referred to: 1 ) Blackstone's Criminal Practice 2011, general editors, The Right Honourable Lord Justice Hooper and David Ormerod, Oxford University Press, London Legislation referred to: ) Penal Code, Cap 87 Introduction ' ~ This appeal raises the fundamental question of what constitutes a series of offences forming part of a course of conduct for purposes of sentencing. Put differently, it discusses circumstances where a Court will consider a series of offences as one * offence for sentencing purposes, thereby ordering the sentences to run concurrently as opposed to consecutively. The appeal also endeavours to define what constitutes "a series of offences forming part of a J3 P.705 course of conduct" as opposed to several offences committed by a serial offender. Lastly, the appeal revisits the consequences of an appeal against sentence. Background The Appellant in this matter conducted a reign of terror in Kitwe between December 2003 and April 2004. He robbed several residents on various days and on one occasion, in the process of trying to rob another resident, he caused the death of one a Andrew Simfukwe. As a result of this, the police conducted a man hunt and arrested the Appellant on 11th April 2004 and charged him with four counts of aggravated robbery and one count of murder. The Appellant was tried by the Learned High Court Judge, who convicted him on two of the four counts J4 P.706 of aggravated robbery. The Court did not pronounce itself on the count of murder. The convictions on aggravated robbery have not been contested, we, therefore, see no need to explain the basis upon which they were handed down nor recite the evidence upon which they were based. Sentencing by the High Court 8 On 8th April, 2010, the Learned High Court Judge sentenced the Appellant to 15 years imprisonment with hard labour on each of the two counts of aggravated robbery and 35 years imprisonment with hard labour on the one count of murder. The Learned High Court Judge did not impose the death penalty in respect of the count of murder because of the view he held that it was not the Appellant who actually shot the deceased. J5 P.707 The sentences were all pronounced to run consecutively. The ground of appeal to this Court and arguments presented by counsel 10 The Appellant is aggrieved at _the fact that the sentences on the three counts for which he was convicted were pronounced to run consecutively and advances one ground of appeal as follows: 10.1 The trial court erred, when it ordered the sentences passed on the Appellant to run consecutively despite the * offences qualifying as a series of offences which were part of a course of conduct warranting the sentences to have run concurrently. 11 Prior to the hearing of the appeal, counsel for both parties filed heads of argument. They also made viva voce arguments at the hearing by way of J6 P.708 complimenting the heads of argument filed in advance. 12 Counsel for the Appellant only made one argument that since the offences the Appellant was convicted of were all committed in a space of five months, they qualify to be described as a series of offences forming part of a course of conduct justifying the sentences to run concurrently. 13 The basis of counsel's argument were the holdings we made in the cases of Kalunga v The People1 and Chomba v The People2. In the former case we * held that where a series of offences are part of a course of a conduct, it is the practice to regard all the offences as one for purposes of sentence, and to impose concurrent sentences. In the latter we held that when dealing with a series of offences J7 P.709 comprising a course of conduct, although there are anomalies inherent in both the "consecutive” and "concurrent” methods of sentencing, the better course is to impose a concurrent sentence in respect of all the charges, the length of each sentence being that which the court considers appropriate for the total course of conduct. In referring to these two cases counsel emphasized the fact that the offences in the cases referred to were committed in a short space of time, were similar in nature and committed during the * commission of the other offence. In the viva voce arguments, Mrs. Lukwesa, counsel for the Appellant, drew our attention to our decision in the case of Jose Antonio Golliadi v The People3 J8 P.710 in which she said we restated the principle in the Kalunga1 case. In response, the Respondent argued that in terms of sections 15(1) and 36(a) of the Penal Code, the Court has discretion to sentence a convict in a manner it deems fit. This discretion,it was argued applies even in cases where there are a series of offences. 17 The Respondent concluded by contending that notwithstanding the position articulated in the preceding paragraph, we gave guidance in the , Kalunga case that it is a rule of practice for Courts to order sentences, in cases where there is a series of offences forming a cause of conduct, to run concurrently. Our reasoning and decision J9 P.711 18 Regard having been had to the arguments by counsel and the record of appeal, what is evident is that a judge is compelled to consider a series of offences forming part of a course of conduct as one offence for purposes of sentence, and must impose a concurrent sentence. 19 The foregoing is in line with the principle we laid down in the cases of Kalunga v The People1 and Chomba v The People2 whose facts reveal that the accused persons in both cases committed a number of similar offences over periods between December 1972 and June 1973 and December 1974 to January 1975, respectively. In both cases we held that the appropriate way of sentencing is that the sentences should run concurrently on all counts. no P.712 20 We reaffirmed our decision in the Kalunga case in the recent case of Jose Antonio Golliadi v The People3 referred to us by counsel for the Appellant. We, however, did not define what constitutes a series of offences forming a course of conduct in these cases which is_ what entitles the convict to a concurrent sentence and would thus, determine the fate of this appeal. 21 The Appellant has in this appeal contended that all the offences he was convicted of were a series of offences forming part of a course of conduct and, as such, the Learned Trial Judge should have handed down a concurrent sentence. This is the issue that we have to determine in this appeal. 22 A series of offences is easy to define because it is a number of offences which occur one after the other. Jll P.713 The crucial word being "senes" which is defined in the Concise Oxford English Dictionary as "a number of similar or related things coming one after another." 23 What about course of conduct? The Court of Appeal in America in the case of The People v Payton4 defined course of conduct as "reasonably ... interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." The court went on to state that the phrase "continuity of purpose" * means that the acts should be similar to the original act and in line with the Defendant's original intention. 24 Although the definition we have quoted in the preceding paragraph is of an inferior court and one J12 P.714 which is outside our jurisdiction, we are inclined to adopt it because it fits in well with the circumstances that surrounded our decision in the Kalunga v The People1 and Jose Antonio Golliadi v The People3 where we used the phrase "course of conduct." ' 25 Turning to the facts as presented in this appeal, we have difficulty in finding that the two counts of aggravated robbery pursuant to which the Appellant was convicted were a series of offences forming part of a course of conduct. The reason for this is that, * although the offences were similar in nature and committed within a short period of time, they do not fit into the definition we have ascribed to the latter part of the phrase "continuity of purpose". J13 P.715 26 We are of the firm view that the reference to the acts being in line with the defendant's original intention mean that they must have been committed from events that are related. That is to say, whilst one act is being committed or soon thereafter or before, the other is committed. _The learned authors of Blackstone's Criminal Practice 2011 explain this position aptly at page 2122 as follows: "Generally, where offences arise out of the same incident, sentences should be concurrent. Concurrent sentences should be imposed where multiple deaths arise from a single act of dangerous driving." 27 To demonstrate what we have stated in the preceding paragraph with reference to the Kalunga case, the Appellant in that matter committed the thefts from his employer between December 1972 and June 1973. These thefts were similar in nature J14 P.716 and represented a continuity of purpose being to steal from his employer repeatedly. He did not go outside his employment and rob another person. 28 Similarly, in the Jose Antonio Golliadi case, the facts reveal that the murders of the two deceased persons were committed in the course of the Appellant, in that case, committing the attempted murder of the other victim. To the contrary, in the case before us, the Appellant as we have said, conducted a reign of terror in Kitwe and was convicted on two counts of aggravated robbery * resulting from acts that were unrelated and committed on different days. Further, both counts of aggravated robbery were unrelated to the count of murder and committed on different days from that of the murder. They were thus, not a series of J15 P.717 offences committed in the course of conduct as we have defined it. 29 Consequently, the Learned High Court Judge was on firm ground when he imposed a consecutive sentence in respect of those two counts of aggravated robbery. 30 In regard to the count of murder committed by the Appellant, we also hold that the learned High Court Judge was on firm ground for the same reason as we have held in the preceding paragraphs. The offence of murder is not similar to aggravated * robbery and was not the original intention of the Appellant. The facts of this appeal show that his intention when he and others broke into the house of the Parmers was to rob and not to kill the deceased. Further, the act of murder had no J16 P.718 connection whatsoever to the earlier offences of aggravated robbery nor did it arise from them. 31 Consequently, we cannot fault the Learned High Court Judge for imposing a consecutive sentence as relates to the murder as well. 32 The matter however does not end there because, although the Learned High Court Judge sentenced the Appellant in respect of the offence of murder, he did not hand down the verdict of guilty in the judgment. All he did was state the facts and evidence in support of the count of murder and in his consideration laid down the law relating to murder. He ended there and did not proceed to decide whether or not the prosecution had proved the offence. It was a misdirection on the part of the J17 P.719 Learned High Court Judge to sentence on an offence he had not rendered a verdict on. 33 Further in the course of the hearing of the appeal we did remind counsel for the Appellant that since this appeal questioned the sentences, we were at large to question the sentences as a whole. We have, in this regard, considered whether a sentence other than death was appropriate for the count of murder. This is not the first time we are interrogating a sentence in this manner as is evident from the Jose Antonio Golliadi case where we considered the sentences imposed on the Appellant along with determining whether or not they should have run concurrently. 34 The record of appeal reveals that the Appellant was saved from the death penalty because in the Learned High Court Judge's view, the Appellant was J18 P.720 not the one who actually shot the deceased. This was notwithstanding the fact that the Appellant was present at the time of the killing and acted in concert with the trigger man. 35 In terms of section 22 of the Penal Code, the Appellant is deemed to have committed the offence. The section states as follows: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, * each of them is deemed to have committed the offence." The facts of this case reveal that the Appellant was in the company of an armed man when they set out to rob the Parmars. The fact, in and of itself, that the Appellant's companion was armed raises the probability that the fire arm would he used resulting J19 P.721 in the death of a person. Indeed this is what occurred. Conclusion 36 For the above reasons, the appeal must fail and we a accordingly uphold the consecutive sentences by_the Learned High "Court Judge in respect of the aggravated robbery. 37 As regards the sentence of 35 years imprisonment with hard labour for the count of murder, although it was not preceded by a conviction, the evidence a presented before the Learned High Court Judge and his evaluation of the said evidence reveals that the charge was proved. As such, we are of the firm view that the conviction should stand notwithstanding the failure by the Learned High Court Judge to pronounce it. Our position is fortified by the fact J20 P.722 that the Appellant has not contested the conviction of murder and neither has he alleged any prejudice arising from the omission by the Learned High Court Judge to formally convict him. However, in the light of what we have said in the preceding paragraphs we are compelled to set aside the sentence of 35 years with hard labour in regard to the count of murder. In its place, we sentence the Appellant to the mandatory sentence of death on the count of murder. 38 The sentences are to run consecutively as adjudged by the Learned High Court Judge. SUPREME COURT JUDGE