Kaluba Chali v The People (SCZ APPEAL NO. 52 OF 2005) [2006] ZMSC 60 (7 June 2006)

I IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: SCZ APPEAL NO. 52 OF 2005 KALUBA CHALi APPELLANT Vs. THE PEOPLE RESPONDENT CORAM: SAKALA, C. J., MAMBILIMA AND SILOMBA, J. J. S. On the 2nd August, 2005 and 7th June, 2006 .. Q For the Appellant: Mr. E. Sikazwe, Deputy Director of Legal Aid For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions. JUDGMENT .......................................... ········•"""'' ................................................. .. ·.• SILO MBA, J. S., delivered the judgment of the Court. Case referred to: lt (1). Kalunga Vs. The People (1975) ZR, 72 ,1 Legislation referred to: Criminal Procedure Code, Chapter 88, Sections 7, 9, 13, 15 and 338 This appeal is against sentence. The appellant was tried and convicted by a Class One Magistrate, sitting at Ndola, on three counts of defilement of three girls contrary to Sectionl38 (1) of the Penal Code, Chapter 87 of the Laws. The particulars of offence on the three counts allege that on the 15th of July, 2003 at Ndola in the Copperbelt province of Zambia, the appellant had, separately, carnal knowledge of Assa Chibuye, Patricia Mubanga and Febby Mbuzi all under the age of 16 years. J2 At the trial of the three counts, the appellant unequivocally pleaded guilty to all the counts. The sad facts of the case, which were read out to the court, were that on the 15 th of July, 2003, Assa Chibuye, aged eight years, Patricia Mubanga, aged eight years and Febby Mbuzi, aged six years, were sent· to buy groceries from the shop of the appellant by Mrs. Maureen Chibuye, the mother of Assa Chibuye. On arrival at the grocery shop, the three young' girls found the appellant having supper with sausages and upon seeing the girls, the appellant invited them to join him for supper. After the meal, the appellant asked Patricia Mubanga and Febby Mbuzi to go outside, leaving Assa Q Chibuye with him inside the house. He then asked Assa Chibuye to touch his private parts, which resulted in him having an erection. The appellant then undressed Assa Chibuye and had carnal knowledge ·.· of her. In the process, the two girls who had been sent outside, re-entered the house and the appellant told them to undress as well. After the appellant was through with Ass~ Chibuye, he jumped on Patricia Mubdnga, with his penis still erect, and had carnal knowledge of the girl._ Lastlyl the appellant jumped on Febby Mbuzi and had carnal knowledge'ofher also .. The appellant then produced K5, 000 and gave it to the three young () girls to go and buy sweets. On leaving the house, the victims went back to their home staggering as if their legs had been tied. When they arrived home, l': they narrated the story to Mrs. Maureen Chibuye (mother to Assa) as they bled from their private parts. The matter was reported to the police and the three young girls were issued with medical report forms to be examined by a medical doctor. The medical reports were produced to form part of the statement of facts. ·. J3 When the appellant was asked to vouch for the correctness of the statement of facts, his response was: "I understand the facts and they are correct That is what I did". Consequently, he was convicted and sentenced to five years imprisonment with hard labour on each count to run consecutively, which meant that the appellant was to remain behind bars for a total of fifteen years. The sentencing power of a Class One Magistrate, under Section 37 (3) of the Criminal Procedure Code, Chapter 88 of the Laws, is up to a maximum of five years. Considering that the aggregate of the sentences he had imposed required confirmation by ):he High Court, the trial Magistrate referred the record to the High Court for confirmation of sentences. On ·.' confirmation of the sentences, this is what the learned trial judge had to say: "After reading the lower court's record and considering the circumstan~es under which the offences were committed and the seriousness of the offences, I have found that the sentences of 5 years ,: for each of the three counts are inadeq11p.te and do not represent the seriousness of the offences the convict committed. I, therefore set aside the sentences and the convict is, therefore, invited to mitigate." Q After taking into accpunt the mitigation tendered by the appellant, the learned trial judge observed that the offences the appellant committed were very serious and had become prevalent of late; that girls, especially the young ones, were not free to go about and play. They needed protection, the learned judge reasoned. With regard to the conduct of the appellant, the learned judge likened his behaviour to that of an animal and the view he took was that the appellant needed to be cage~. He set aside the sentence of five years on each J4 count and in its place imposed the sentence of 15 years on each count, to run consecutively, making it a total of 45 years imprisonment with hard labour. There are two grounds of appeal in respect of sentence only and these are: - 1. 2. The learned judge erred at law by substituting a sentence which was higher than the one the Magistrate had powers to impose; and The learned judge erred in principle by ordering the sentence to run consecutively when the three counts were su_ch- a series of offences that were part of a course of conduct, which for sentencing purposes, should have attracted a concurrent sentence. In his oral submission, Mr. Sikazwe, representing the appellant, simply relied on his detailed heads of argument and authorities. In his written heads of argument, counsel n;ferred us to the applicable law in Section 7 of the Criminal Procedure Code (hereinafter to be referred to as ·.' "the Code"), which limits the sentencing powers of all categories of magistrates. However, instead of alluding to the proviso in11 paragraph (iii) of Section 7, that deals with the powers of a :(rrst cla§s Magistrate, whose judgment is the subject of this appeal, Mr:~Sikazwe dealt with the proviso in paragraph (I) in reference to the sentencing powers of a Senior Resident Magistrate. The point he was driving at was nonetheless taken. :,, On ground two, counsel submitted in his heads of argument that where a series of offences constitute a course of conduct, it was accepted practice to regard them as one for sentencing purposes; that three female juveniles were defiled by the appellant on the same day, literally at the same time and place and one after another and in the view of counsel this properly constituted a single course of conduct for which a consecutive sentence was JS inappropriate. On this ground, counsel relied on the case of Kalunga Vs, The People. (Il In response, Mr. Mchenga, the learned Director of Public Prosecutions (DPP), conceded, with regard to ground one, that when the case was referred to the High Court for confirmation of sentence the learned trial judge had no power to enhance sentence beyond five years, given that the trial magistrate , had already imposed a sentence in exercise of his powers. , With regard to the second ground of appeal, Mr. Mchenga submitted that although the offences were committed close to each other in time, to hold that they formed a series of offences and should, therefore, attract a concurrent sentence, would result in absurd sentencing in this court. He ended his brief but apt submission by urging us to hold that the offences were not ip. a series and that the sentences of five years on each count should run consecutively. We have considered the evidence contained in the record of appeal • and the submissions made before us. This appeal emanates from the h i Subordinate Court where a Class 1 Magistrate- convicted the appellant and sentenced him to five years imprisonment with hard labour on each count. •• He ordered that the sentences should run consecutively, bringing the total Q number of years the appellap.t was to serve to 15 years. In dealing 'with ground one, it is prudent that we examine, in some detail, the sentencing powers of a first class magistrate, as well as, the powers of the High Court when the record of the proceedings is referred to it for confirmation of sentence. The elucidation will apply to the second and third classes of Magistrates as well. ~ The proVIso m paragraph (iii) of Section 7 of the Code gives jurisdiction to the first class Magistrate to impose a sentence of up to a maximum of five years subject to the limitation in Section 9 (1) of the Code. Under sub-section (1) of Section 9, the law is that if a Magistrate of the first class has imposed a sentence in excess of two years imprisonment with or without hard labour, that sentence shall not be carried into effect in respect of the excess until the sentence has been confirmed by the Hi.gh Court. This is the predicament the trial magistrate found himself in after he had imposed a term of five years imprisonment with hard labour on each count. To come out of it, he correctly applied the law in sub-section (1) of Section 9 of the Code by referring the record to the High Court for confirmation of the excess three years on each count. It is important to note, at this stage, that the reference of the record for confirmation of sentence by tl1e High Court was done after the trial Magistrate had fully exhausted his power of sentence in accordance with the proviso in paragraph (iii) of Section 7 of the Code. l1 Ifwe may ask: What are the powers of the High,Court once the record has been referred to it for confirmation• of the excess sentence? These powers are to be found in sub-section (3) of Section 13 of the Code, which states that the confirming court may exercise the same powers in confirmation as are conferred upon it in revision by Part XI of the Code. In ; .. short, this means that subsection (3) of Section 13 has to be read in conjunction with another section under Part XI of the Code, which is discussed in the next paragraph. The sections tl1at deal with revision under Part XI of the Code are Sections 337, 338, 339 and 340. However, for purposes of tl1is appeal our J7 attention is drawn to sub-paragraph (ii) of paragraph (a) of sub-section (1) of Section 338 of the Code, which reads as follows: - 338 (I) In the case of any proceedings in a subordinate court, the record of which has been called for, or which otherwise comes to its knowledge, the High Court may - (a) in the case of a conviction - (i) . " (ii) if it thinks a different sentence should have been imposed, quash the sentence passed by the subordinate court and pass such other sentence warranted in law, whether more or less severe, in substitution the ref or as it thinks ought to have been passed; Our understanding of the above quoted sub- paragraph (ii) is that the High Court may, on confirmation of sentence, pass a sentence warranted in law in substitution of the sentence imposed by the subordinate court, which may be le~s or more severe. However, in the exercise of such power it is incumbent upon the High Court to act within the confines of the law prescribing the s~ntencing powers of the trial magistrat~ who has sent the record for the confirmation of the excess sentence. i In our view, the confirming judge, considering the gravity or ·~ seriousness or otherwise of the offence, has power to ·enhance the sentence or reduce it in order to meet the justice of the case provided the committing Q magistrate has not exhausted the power of sentence. However, once that power has been exercised to the full, as was the case here, the confirming judge cannot enhance the sentence beyond that prescribed by law in relation to that class of Magistrate but he may reduce it. This is the very reason that prompted the learned DPP to concede. We, accordingly, allow ground one and set aside the order of the learned trial judge to substitute a sentence of fifteen years on each count. .: ' .. J8 With regard to the last ground of appeal, the cited case of Kalunga and indeed several other cases clearly state the practice of the courts, which is, that where a series of offences are part of a course of conduct, it is the practice to regard such offences as one for purposes of sentence and to impose concurrent sentences. The practice is law. Having alluded to case law, let us also look at the Code and see if it gives any power to the courts to depart from the practice. The relevant law is enshrined in sub-section (1) of Section 15 of the Code. To avold any doubt, and for the sake of clarity, we cite the sub-section in full, thus: - 15 (1): When a person is convicted at one trial of two or more distinct offences, the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently . . , The law is self-explanatory. On our part, we have looked at the charge Q sheet, and the charges that were preferred against the appellant are three in • h the form of counts one, two and three. The counts constitute separate and distinct charges or offences as they involve three different human beings . Besides, the offences are serious and were committed against innocent •• children of very tender ages. It follows, therefore, that even though the three offences were :· committed at one· place and close to each other in time and space, they are to be considered as a series of offences forming part of a course of conduct. Further, that although the offences were committed during the course of the same transaction, the facts of this case dictate that the sentences should run consecutively. J9 That being the case, we uphold the sentences of five years on each count imposed by the trial Magistrate, as well as, his order that they should run consecutively. The appeal against sentence is dismissed. ···········~················••"•' E. L. Sakala, CHIEF JUSTICE. ' •. I. M. C. Marnbilima, SUPREME COURT JUDGE. ..... t! ............. ~~···················· S. S. Silomba, SUPREME COURT JUDGE. /1 I ,, 0