Golliadi v People (Appeal 26 of 2017) [2017] ZMSC 282 (11 September 2017)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL No. 26/2017 BETWEEN: JOSE ANTONIO GOLLIADI AND THE PEOPLE CORAM: Phiri, Muyovwe and Chinyama, JJS On 5th September, 2017 and 11th September, 2017 For the Appellant: Miss K. Chitupila, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. M. G. Kashishi-Ngulube, Senior State Advocate, National Prosecutions Authority JUDGMENT MUYOVWE, JS, delivered the judgment of the court. Cases referred to: l. Kalunga vs The People (1975) Z. R. 72 2. Alfred Mulenga vs. The People (1977) Z. R 106 3. Kaposa Muke and Another vs. The People(1983) Z. R. 94 4. Isaac Simutowe and Others vs. The People (2009) Z. R. 91 5. 6. Justin Mumbi vs. The People (2004) Z. R. 106 7. Kezzy Ngulube vs. The People (2009) Z. R. 91 8. Jack Chanda and Kennedy Chanda vs. The People (2002) Z. R. 124 9. Machipisha Kombe vs. The People (2009) Z. R. 282 Lemmy Bwalya Shula vs. The People (1995-1997) Z. R. 168 Jl This appeal is against the judgment of the High Court sitting at Chipata in which the learned trial judge convicted the appellant of the offence of attempted murder in the first count. The particulars were that on the 11th November, 2014 at Chadiza in the Eastern Province of the Republic of Zambia he attempted to cause the death of Zenaida Phiri. In the second and third counts, the appellant was convicted of the offence of murder. The particulars being that on the 11th November, 2014 at Chadiza he murdered Irene Banda and Tiwode Banda (hereinafter called “the deceased”.) It was established by the prosecution that on the material day, the appellant arrived at the home of PW1 Zenaida Phiri in the morning in the company of Adamson Mbewe (PW5). Zenaida Phiri used to brew and sell kachasu (home-made beer). After drinking a pint of beer, the two left and later returned in the company of the deceased Irene who had a baby (deceased Tiwode Banda) on her back. The three started drinking together. Later, Adamson left the appellant and Irene drinking together. Irene also later left leaving the appellant drinking alone. There was evidence that at one point J2 the appellant ran into the bush while carrying two containers of beer and he came back before lunch. According to Zenaida, the appellant sent her mentally challenged cousin Foloma to go and buy him more beer at one Pontiano's place. After Foloma left, the appellant demanded that Zenaida gives him the money the appellant had given Foloma to buy beer. Although she found it strange, Zenaida went into her bedroom to get the money. The appellant followed her and all of a sudden, he jumped on her and started squeezing her neck while demanding that she shows him where she kept the money from the beer sales. He got her chitenge which he squeezed tightly around her neck to the point where she bled from the nose and eyes. The appellant was only stopped by the return of Foloma upon which he (the appellant) grabbed a big container of kachasu and ran away into the bush. The matter was reported to the police and Zenaida was taken to the hospital. It was the evidence of PW2 Paul Phiri that the same day in the afternoon he met the appellant in the bush. Paul observed that the appellant’s shirt was blood stained, he had a knife in the pocket and he was carrying a container of kachasu. The appellant stated J3 that he was suffering from a nose bleed hence the blood on his shirt. The appellant stated that he was running away from the war in Mozambique. According to Paul, the appellant said one of the persons he was with killed a baby and dumped the baby in the hills. After parting company with the appellant and upon reaching the village, Paul was informed that a stranger who fit the description of the appellant had tried to kill Zenaida. The bodies of the two deceased persons were discovered in the bush, half naked and each had been strangled with a chitenge around the neck. The appellant was later apprehended by the villagers and was later charged with the subject offence. In defence, the appellant admitted that he had tried to strangle Zenaida because he wanted his KI5 from her. He admitted being in the company of the deceased at Zenaida's home but claimed that he left them (Irene and her baby) there. In short, the appellant completely denied that he murdered the two deceased persons. In her judgment, the learned trial judge found that there was overwhelming circumstantial evidence linking the appellant to the commission of the offences. That the manner in which he J4 attempted to murder Zenaida by squeezing her neck with a chitenge material and the manner in which the deceased persons were strangled with a chitenge material around the neck on the same day in the same village was an odd coincidence. The learned trial judge was satisfied that the circumstantial evidence was cogent and pointed to the guilt of the appellant and convicted him accordingly. The learned trial judge sentenced the appellant to 20 years imprisonment with hard labour for attempted murder. In each count of murder, the appellant was sentenced to 45 years imprisonment with hard labour and the learned trial judge ordered that the sentences in the three counts should run consecutively. This was after the learned trial judge found that there were extenuating circumstances in this case namely, drunkenness. The appellant is appealing against sentence only. Ms. Chitupila learned Counsel for the appellant advanced one ground of appeal attacking the learned trial judge for ordering that the sentences on the three counts should run consecutively which is wrong in principle. Counsel relied entirely on her heads of argument filed herein. In support of this ground of appeal, we were J5 referred to the cases of Kalunga vs The People;1 Alfred Mulenga vs. The People2 and Kaposa Muke and Another vs. The People3 where we gave guidance to lower courts on how to deal with sentencing in cases involving a series of offences which form part of a course of conduct. We held that in such cases it is appropriate to consider all the offences as one for purposes of sentence. It was submitted that the sentence by the learned trial judge should be set aside and we should instead order that the sentences run concurrently in line with the established principles. During the hearing of the appeal, we sought Ms. Chitupila's view on whether the learned trial judge was on firm ground when he found that there were extenuating circumstances in this case. Counsel maintained that the learned trial judge could not be faulted as there was evidence that the appellant had been drinking for a long period of time and therefore, he was entitled to benefit from drunkenness as an extenuating circumstance. In response, Mrs. Kashishi-Ngulube the learned Counsel for the State submitted that as the appeal was against sentence, she left the matter to the discretion of the court. J6 We have considered the arguments by learned Counsel for the appellant. With regard to the sole ground of appeal, we are quick to agree with Ms. Chitupila that the learned trial judge erred when he ordered that the sentences should run consecutively. This is in line with our guidelines which we have given in a plethora of authorities such as Isaac Simutowe and Others vs. The People4 where we reaffirmed the principle that where the facts of a case disclose a series of offences forming a course of conduct, the proper procedure is for the sentences to run concurrently. Looking at the facts of this case, the three counts should have been treated as one for purposes of sentence having regard to the fact that they were committed on the same day and they were part of a course of conduct. We find merit in the sole ground of appeal to the extent that the sentence was wrong in principle. However, we must hasten to add that this appeal being an appeal against sentence we are now at large to consider whether the sentence other than death for the two counts of murder was appropriate under the circumstances. We are referring to the J7 question we posed to Ms. Chitupila during the hearing of the appeal as to whether the learned trial judge was on firm ground when he found that drunkenness was an extenuating circumstance in this case. Ms. Chitupila defended the finding by the learned trial judge on the ground that the appellant had been drinking for a long time and this amounted to an extenuating circumstance in line with decided authorities. Section 201 of the Penal Code provides as follows: (1) Any person convicted of murder shall be sentenced- (a) to death; or (b) where there are extenuating circumstances, to any sentence other than death: Provided that paragraph (b) of this subsection shall not apply to murder committed in the course of aggravated robbery with a firearm under section two hundred and ninety-four. (2) For the purpose of this section- fa) (b) an extenuating circumstance is any fact associated with the offence which would diminish morally the degree of the convicted person's guilt; in deciding whether or not there are extenuating circumstances, the court shall consider the standard of behaviour of an ordinary person of a class of the community to which the convicted person belongs. We have dealt with the issue of drunkenness as an extenuating circumstance in numerous cases including the cases of J8 Lemmy Bwalya Shula vs. The People;5 Justin Mumbi vs. The People6 and Kezzy Ngulube vs. The People.7 In the Kezzy Ngulube case7 we stated that: "From the outset, we wish to say that we are not persuaded by the argument simply because there was no evidence of general drunkenness at trial. As we said in the above Mumbi case drunken circumstances, generally attending upon the occasion, sufficiently reduce the amount of moral culpability, so that there is extenuation. However, in our view, there was no extenuation in this case." (emphasis ours) In Kezzy Ngulube6 we accepted that the circumstantial evidence pointed to the guilt of the appellant as he was drinking with the deceased and had the opportunity to put rogor in the cup of the deceased when the deceased went to the toilet. That the appellant by putting the poison into the deceased's wine had the intention to cause harm to the deceased. Although this happened at a drinking place, we rejected drunkenness as an extenuating circumstance. In the case of Mumbi vs. The People6 the appellant upon reaching his uncle’s house, took some beer. Thereafter, he demanded for a pair of shoes from his uncle who refused to give him. The appellant disappeared only to appear with a firearm J9 which he pointed at his uncle. The uncle fled from the house. The appellant then pointed the gun at PW3 and upon seeing this, the deceased panicked and stood up and moved towards the appellant. The appellant then shot the deceased three times. It was established that the appellant had stolen the gun after he had broken into the house of the owner of the gun. The appellant elected to remain silent. The appellant was sentenced to the mandatory death sentence. On appeal to this court against sentence only, it was argued, inter alia, that there was evidence before the trial court that on the material day the appellant was offered beer at his uncle’s house. And at apprehension, the arresting officer stated that the appellant was smelling of beer and appeared drunk. Counsel argued that this amounted to an extenuating circumstance. We rejected this argument and found no extenuation and dismissed the appeal. And in the case of Jack Chanda and Kennedy Chanda vs. The People,8 the appellants had been drinking for about five hours and we accepted that it was an extenuating circumstance and we allowed the appeal on that basis. J10 In the case in casu, we now need to examine the evidence to ascertain whether there was sufficient evidence to sustain drunkenness as an extenuating circumstance. According to the evidence, the appellant strangled Zenaida and tried to rob her of money from the beer sales. Zenaida did not state that the appellant was drunk before or after attacking her. In fact, the evidence in the court below is that the appellant arrived in the morning and started drinking with Adamson; then they left and later came back with Irene. The appellant was drinking with Adamson and Irene and he was at last left alone. Up to that point there was no evidence that he was drunk. He left for sometime and came back before lunch and then he sent Foloma to go and buy him more beer. It was at that point that he demanded for money from Zenaida and then strangled her. In any event, we do not believe that a person who is drunk can attempt to rob and strangle someone with a chitenge around the neck to the extent of bleeding from the nose and eyes. The evidence from Zenaida, the victim of the attempted murder, is that the appellant strangled her as he demanded for the money from her sales. Although this was a place JU where home brewed beer was sold we cannot state that there was any evidence of general drunkenness. We do not agree that a man who is drunk and has diminished responsibility can turn around and attack a person in such a brutal manner to the extent where she bled from the nose and eyes as a result of being strangled by the appellant and thereafter two other persons are found strangled to death in a similar fashion within the same village on the same day. We agree with the learned trial judge when he found that the similar fashion in which Zenaida was strangled and the strangling to death of the deceased persons was an odd coincidence which is evidence of something more which the court is entitled to take into account as we held in the case of Machipisha Kombe vs. The People.9 Further, although the appellant had been drinking kachasu earlier in the day, there is no evidence that he was drinking for a long period of time or that he drunk all day. In the same vein, when Zenaida's mentally challenged cousin found the appellant strangling Zenaida, the appellant's reaction was to grab a container of beer before fleeing from the scene. A person who is drunk cannot J12 flee from the scene as the appellant did. And when Paul met the appellant in the bush, he did not mention that the appellant was drunk but merely pointed out that the appellant who at that time was wearing a blood stained shirt told him that he was running away from war in Mozambique. The circumstantial evidence points to the fact that at that time, the appellant had already killed the deceased persons especially that he mentioned that he had been with someone who had killed and buried a child in the hills that day. It appears to us that the appellant simply had the propensity to kill on the material day and in our view, he cannot benefit from drunkenness as an extenuating circumstance when all the circumstances are taken into account. We must emphasize that trial courts must be wary of finding drunkenness as an extenuating circumstance in every case where the offence is committed at a drinking place or where the accused claims he was drinking or was drunk. It is important to consider the peculiar facts instead of applying drunkenness as an extenuating circumstance in every single case which would lead to injustice. J13 We, therefore, find that the learned trial judge misdirected himself when he found that there were extenuating circumstances in this case. The sentence of 45 years with hard labour imposed by the learned trial judge in respect of the two counts of murder cannot stand and it is hereby set aside. In its place, we sentence the appellant to the mandatory death sentence on each count of murder. The sentences shall run concurrently. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J. CHINYAMA SUPREME COURT JUDGE J14