Isaac Simenda v People (SCZ Appeal No. 134/2013) [2013] ZMSC 89 (4 December 2013)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 134/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: ISAAC SIMENDA -V- THE PEOPLE APPELLANT RESPONDENT Coram: Phiri, Muyovwe JJS a nd Len gale n ga,AJS On 9 th July, 2 01 3 and 4 th December, 2 01 3 . For the Appellant: Mr. A. Ngulube, Director of the Legal Aid Board For the Respondent: Ms. F. Nyirenda, State Advocate • JUDGMENT Phiri, JS, delivered the Judgment of the Court Cases re (erred to: • 1. Benua vs. The People ( 1976) ZR 13 2. Mwiba vs. The People (1971) ZR 131 3. Mushala vs. The People ( 1978) ZR 38 4. Malaya vs. The People (1973) ZR 236 5. Chisanga vs. The People (2004) ZR 93 6. Kalunga vs. The People ( 1975) ZR 72 7. Banda vs. The People ( 1981) ZR 26 8. Alubisho vs. The People ( 1976) ZR 11 I 9. Jutronich Schutts and Lukin vs. the People ( 1965) ZR 9 (page 12 in the ZR reprinted edition). This is an appeal against sentence only. The appellant was charged with one Count of the offence of Theft contrary to Section 272 of the Penal Code. The particulars of the offence were that the appellant on 30 th March, 2012 stole a cell phone, a wallet and K3,900.000.00 cash altogether valued at K4,100,000.00 the property of Clalide Ahontegeye. The appellant took his plea before the Magistrate Court of the second class sitting at Lusaka on the 24 th of April, 2012. He pleaded guilty, and admitted the Statement of Facts presented to the Court by the prosecution. Upon his own admission, he was found guilty as charged and convicted. After mitigation, he was sentenced by that Court to 24 months imprisonment • with hard labour with effect from 24 th April, 2012. Being dissatisfied with the sentence awarded to him by the Subordinate Court, he appealed to the High Court. On the 18th of January, 2012, the High Court determined the appeal by setting aside the sentence of 24 months imprisonment imposed by the Subordinate Court and in its place, imposed J2 an enhanced sentence of four (4) years imprisonment with hard labour with effect from the date of arrest. Being dissatisfied with the outcome of his first appeal to the High Court, the appellant, appeals to this Court against that sentence. • • As the record shows, the appellant first appeared in person before this Court. His initial appeal was against both conviction and sentence; and he personally filed grounds of appeal and written heads of arguments. These were followed by a supplementary ground of appeal filed on his behalf on the 29 th of May, 2013 by Messrs Henry Chanda and Company; who, we believe, acted amicus curia. At the hearing of this appeal, on the 9 th of July, 2013, Mr. Anderson Ngulube, Learned Director of the Legal Aid Board placed himself on this record and, with leave of Court, filed fresh grounds of appeal and heads of arguments which superseded the appellant's own documents earlier filed. In the new grounds of appeal, the appeal against conviction was abandoned. There are two grounds of appeal as follows: J3 .. • • "1. The Court below misdirected itself by setting aside the sentence of two years imprisonment and four years imprisonment as it appeared to have exercised the discretion of a trial Court. sentence of imposing a 2. The Court below erred in law by imposing a sentence of four years imprisonment as the sentence was excessive." In support of the two grounds of appeal, which grounds were correctly argued together, Learned Director of the Legal Aid Board submitted that the offence of Theft carries a maximum sentence of five years imprisonment as provided in Section 272 of the Penal Code; and that the upper limit is for the worst offender while the lower limit is for the first offender, and anything in between has a mixture of mitigating and aggravating circumstances. Learned Counsel argued that by pleading guilty and being a first offender who was remorseful, the appellant had provided the mitigating factors which should have entitled him to leniency as supported by the authorities in the cases of Benua vs. The Peoplel1J, Mushala vs. The Peoplel3J, and Mwiba vs. The Peoplel2 J. Basing the arguments on the foregoing decided cases , the Learned Director argued that the sentence imposed by the J4 4 , • • Subordinate Court was not wrong in principle, as it took into account the guilty plea (Benua vs. the People) and also considered that the appellant was a first offender; which factors were weighed against the other factors, and were on the mitigating side (page 4 of the record, lines 17-25). It was after that balancing that the Learned trial Magistrate settled on a deterrent sentence, to deter the appellant and would-be offenders in his community (Malaya vs. the Peoplef4J). It was further argued that the Subordinate Court was not wrong in principle, as it was within its power to pass any sentence of up to but not exceeding three years imprisonment under Section 7(iv) of the Criminal Procedure Code. It was Learned Counsel's contention that it was wrong in principle for the High Court to pass a sentence beyond the jurisdiction of the trial Court in the same manner that it was wrong in principle when a Judge enhances a sentence beyond the jurisdiction of the trial Court when a case goes to the High Court on appeal (Chisanga vs. the Peoplef5J). JS . , It was Counsel's submission that the High Court is only at large to impose any sentence when a case is committed to it for sentencing. It was further argued that while the High Court found the sentence to be so totally inadequate as to induce a sense of shock, what induces a sense of shock is to sentence a first offender who pleaded guilty, admitted the charge at the Police Station, and regretted his conduct, to four years I imprisonment; one year short of the maximum sentence allowed by the law. It was the appellant's contention that there was no justification for such a harsh sentence , and it was not proper for the High Court to enhance the sentence. In support of this • argument, Learned Counsel cited three authorities which were decided in between 1975 and 2004. These were Kalunga vs. the Peoplef6J, Banda vs. the Peoplef7J and Chisanga vs. the Peoplef5J. It was also the Director's contention that the principles on which an appellate Court may interfere with the sentence of the trial Court are well laid out in the case of Alubisho vs. The Peoplef8J which decided that the discretion J6 to determine the quantum of sentence rests with the trial Magistrate in the following text by Silungwe, CJ: "Consequently it will be assumed in this case that the appeal Judge substituted his discretion for that of the The enhanced sentence must trial Magistrate. therefore be set aside and the original sentence of one and half years imprisonment with hard labour restored". I It was therefore the appellant's contention that the two years imprisonment with hard labour imposed on the appellant should be restored. The Learned State Advocate did not wish to be heard on the grounds of appeal; but implored us that if we decided to interfere with the sentence meted out by the High Court, the sentence given by the Subordinate Court is appropriate in this case. • We have examined the record of the Subordinate Court, the Statement of Facts, and Judge's notes on appeal to the High Court. We have also considered the arguments and submissions made on behalf of the appellant on the two grounds of appeal in this case. We agree with the learned Director that the two grounds of appeal are inter-related; in J7 ,, • • that they all question the enhancement of the sentence preferred by the Subordinate Court, to a higher sentence preferred by the High Court; the ultimate relief being sought by the appellant is to revert to the sentence of two years imprisonment originally preferred by the Subordinate Court. We wish to observe that the Learned Director of the Legal Aid Board correctly recast the law, as it is on sentencing, in the many authorities that he cited. Indeed, the principles of sentencing are well settled, and there exists a plethora of decided cases that give a variety of guidelines. We do not fault any of those guidelines . We note that, of the many decided cases referred to by the Director on behalf of the appellant, two of them are quite instructive in the present appeal. The first case is that of Kalunga vs. the Peoplef6J in which this Court held as follows: "(ii) It is not proper to enhance a sentence simply because the appellate Court, had it tried the case, would have imposed a somewhat greater sentence. Just as an appellate Court will not interfere with a sentence as being too high unless that sentence comes to the Court with a sense of shock, equally it will not interfere with J8 a sentence as being too low unless it is of the opinion that it is totally inadequate to meet the circumstances of the particular offence". The second case is that of Alubisho vs. the People<8J. The decision in the latter case reaffirms the decision of the forerunner to this Court; the Court of Appeal for Zambia, in the case of Jutronich Schutts and Lukin vs. the People<9J. In the latter case , the Court of Appeal held as follows: "(i) With the exception of prescribed minimum or mandatory sentences a trial Court has a discretion to select a sentence that seems appropriate in the An circumstances of each appellate Court does not normally have such a discretion. individual case. (ii) In dealing with an appeal against sentence the appellate Court should ask itself three questions: 1. Is the sentence wrong in principle? 2. Is it manifestly excessive or so totally inadequate that it induces a sense of shock? 3. Are there any exceptional circumstances which would render it an injustice if the sentence were not rendered. Only if one or other of these questions can be answered in the affirmative should the appellate Court interfere. J9 • • ,, Dictum of Blagden, C. J. in Jutronich, Schutts and Lukin v The People (1) applied. (ii) An appeal Judge should not alter the sentence passed at a trial merely because he thinks he might have passed a different one." The first ground is that the Court below wrongly exercised the discretion of a trial Court by imposing the enhanced sentence of four years imprisonment; and the second ground is that the High Court erred in law by imposing I that excessive sentence. Firstly, we wish to observe that this case was not remitted to the High Court, from the Subordinate Court, for sentencing or confirmation of sentence; it came to the High Court by way of first appeal, against both conviction and sentence. The case has now come to us as a second appeal; albeit, against sentence only. The powers of the appellate Court are listed in Section 327(1) of the Criminal Procedure Code as follows: • "327( 1). The appellate Court, after perusing the documents forwarded to it, if the appeal is being heard summarily or after hearing the appellant or his J10 advocate, if he appears, and the prosecutor, if he appears, may, is no sufficient ground for interfering, dismiss the appeal, or may- if it considers that there (a) On an appeal from a conviction - (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be Subordinate Court of retried by competent jurisdiction or by the High Court; or a (ii) alter the finding, maintain the sentence or, with or without altering the finding, reduce or increase the sentence; or (iii) with or without such reduction or increase, and with or without altering the finding, alter the nature of the sentence. (b) On an appeal against sentence, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and, in any other case, dismiss the appeal; (c) On appeal from any other order, alter or reverse such order; and in any case may make any amendment or any consequential, or incidental order that may appear just and proper." It must be observed from the foregoing that the High Court, in both its appellate and revisional jurisdiction, has an Jll • • overall supervisory authority over the Subordinate Courts of all Classes and when a matter is properly brought under its jurisdiction, the High Court has a wide array of powers prescribed by the Criminal Procedure Code. More specifically, under the afore-quoted Section 327(1), the Court has power to reverse any finding and sentence, and acquit or discharge the accused, or order a retrial. It also has power to alter any finding, maintain the sentence or reduce or increase the sentence, or indeed alter the nature of the sentence. In view of the foregoing, we do not accept Mr. Ngulube's argument that in enhancing the sentence from two years to four years, the High Court wrongly exercised the discretion of a trial Court. It was perfectly within the powers of the High Court to decide to enhance the sentence in the manner it did; subject to the various guidelines on sentencing policies as aforesaid. In our view, what is material is whether the principles of sentencing and the guidelines available in the plethora of authorities cited, were followed by the High Court. Pages 10 and 11 of the record reveal the reasons that • • J12 prompted the High Court to enhance the appellant's sentence from two years to four years imprisonment with hard labour. These are that, the appellant's mitigating factors of pleading guilty, saving the Court's time and pleading remorsefulness were taken into account. The Court below, therefore, concluded that the sentence of two years was certainly not wrong in principle . In dealing with whether or not the sentence was excessive , the Court below correctly considered the fact that, the appellant was a friend of the Complainant; that by stealing from the Complainant, the appellant abused the trust that the Complainant had in him as a friend; and that in order to facilitate the theft, the appellant and his accomplice posed as Immigration Officers; which, in itself, constituted an offence under the Penal Code Chapter 87 of the Laws. It is clear from page 10 of the record that the Court below considered the aggravating factors and found that the sentence was so totally inadequate as to induce a sense of shock; warranting • • interference. J13 We have read the Statement of Facts which was presented to the Learned trial Magistrate in the Subordinate Court. The findings of the High Court perfectly fitted the Statement of Facts which the appellant unequivocally admitted at his trial. • • The appellant and his accomplice robbed their victim, who was well known to them, after posing as Immigration Officers on duty checking his Immigration status. In our view, the aggravating factors in this case correctly warrant a stiffer penalty. We do not fault the Court below. However, we are of the view that this case warrants pronouncement of a very clear statement to those criminal elements in our communities who commit crimes while posing as Police Officers, Immigration Officers, Officers from the Anti-Corruption Commission, Officers from the Drug Enforcement Commission and indeed, all those who commit crimes while posing as public officers with authority from the Government; that when they are convicted for the crimes committed under those guises, they risk maximum punishment; notwithstanding that they plead J14 guilty and whether they are remorseful or not. Indeed we must frown upon the behaviour of those criminal elements in our communities who create the perception that criminal elements abound the public service. That perception has devastating consequences to both public safety and public order in the Republic of Zambia. Before we end, we note that the Learned Director also argued that the High Court had no power to award the sentence of four years imprisonment with hard labour, when the appellant was tried by the Subordinate Court presided over by a Magistrate Class 2 who could not pass a sentence in excess of twelve months without confirmation by the High Court . Whilst we agree that a Class II Magistrate has no power to sentence a convict to a term of imprisonment in excess of twelve months without confirmation by the High Court, we do note that Section 9(7) of the Criminal Procedure Code ousts the need for confirmation on the first appeal if the sentence is maintained. That Section reads as follows: JlS • • "9(7). Any sentence passed by the Subordinate Court which requires confirmation by the High Court, shall be deemed to have been so confirmed if on a first appeal to the Supreme Court or the High Court, as the case may be, the sentence is maintained by the appellate Court". In the present case, the sentence passed by the Subordinate Court of the second class was not only • maintained; but was enhanced. In our considered view, the enhancement of the sentence before that sentence was confirmed by the High Court was much more than the confirmation itself and must, of necessity, dispense with the need for formal confirmation of sentence, by the High Court. The present scenario perfectly fits into the provisions of Section 9(7) of the Criminal Procedure Code; and with • indifference to the Director, we disagree with his argument that the High Court was restricted to the sentence passed by the Subordinate Court of the second class which required confirmation. We find no merit in this appeal. It is dismissed. For the reasons we have already given, we have found this case to be appropriate for further interference as we find J16 ... . \ the sentence of four years imprisonment with hard labour to be inadequate in the peculiar circumstances of this case. We therefore quash the sentence of four years imprisonment. In its place, we impose the maximum punishment of five years imprisonment with hard labour from the date of arrest. ; • G. J . HIRI SUPREME COURT JUDGE E. C. MUYOVWE SUPREME COURT JUDGE F. M. L LENGA ACTING SUPREME COURT JUDGE J17