Justine Chanda v The People (SCZ Appeal 83 of 2007) [2007] ZMSC 32 (4 September 2007)

(- (cid:9) ' IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 83/2007 HOLDEN AT NDOLA (Criminal Jurisdiction) JUSTIN CHANDA AND THE PEOPLE APPELLANT RESPONDENT Coram: Chirwa, Chibesakunda and Chitengi JJS 411, September, 2007 .- (cid:9) For the Appellant: (cid:9) Mr. E. M. Sikazwe, Acting Director of Legal Aid. For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions. Chibesakunda JS delivered the Judgment of the Court. JUDGMENT The Appellant was charged on one count of defilement of a girl under the age of 16 years contrary to Section 138(1) of the Penal Code Cap 87 of the laws of Zambia. The particulars were that Justin Chanda on the 28th May 2004, at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia had unlawful carnal knowledge of a girl under the age of 16 years. The name of the girl was Angela Kacheya. The Appellant pleaded guilty before the Magistrate Class 1. (cid:9) (cid:9) The facts briefly were that the Appellant approached the mother of the prosecutrix and asked her if she had been to the grinding mill. The mother of the child told the Appellant that she had not gone to the grinding mill. The mother of the child told the Appellant that she had no enough mealie meal. The Appellant offered mealie meal to the mother of the prosecutrix and asked the mother to send the young girl to the Appellant's home. On arrival at his home, the Appellant closed the door and pushed the girl to the bedroom and told her that if she resisted he will beat her. He undressed her and had carnal knowledge of a girl. Whilst they were having this carnal knowledge, they heard the mother calling her. The Appellant ordered the young girl not to answer. After that the Appellant gave mealie meal to the girl. When the mother saw this young girl, she became suspicious and she questioned the young girl and later this young girl told the mother what the Appellant had done to her. A report was made to the police and the Appellant was arrested. He appeared before the Magistrate. He pleaded guilty to the subject charge and was convicted. The trial Magistrate remitted the matter to the High Court. The trial Magistrate felt that he did not have sufficient power to sentence the Appellant. (cid:9) The learned sentencing Judge sentenced the Appellant to 14 years Imprisonment with Hard Labour with effect from the date of arrest. It is against this sentence that the Appellant has appealed to this court before US. Mr. Sikazwe submitted that the appeal was against sentence only. He advanced one ground of appeal. The ground was that the learned sentencing Judge erred in principle when he sentenced the Appellant to 14 years Imprisonment with Hard Labour as the Appellant readily pleaded guilty to the offence. By pleading guilty, he showed contrition and did not waste the court's time. The learned sentencing Judge did not take into account that the Appellant was a first offender and that he deserved leniency although the prevalency of this crime may not have led to much leniency being exercised on him. We have considered the arguments by the learned Acting Director of Legal Aid. We take into account the fact that the offence was committed before the amendment which came into force in 2005. The amendment brought in a minimum mandatory sentence of 15 years. We, therefore, agree that the Appellant need not have been sentenced to 14 years. We, therefore, find merit in that ground of appeal. We are alive to the fact that the offence in question is prevalent and already in a number of cases, the court has sent messages that innocent children must be protected. However, in this case, we set aside the sentence of 14 years, we sentence the Appellant to 10 years Imprisonment with Hard Labour with effect from the date of arrest. D. K. Chirwa SUPREME COURT JUDGE L. P. Chibesakunda SUPREME COURT JUDGE P. . Chftengi SUPREME COURT JUDGE. II fl C