Kenneth Chisanga v The People (SCZ NO. 10 OF 2004) [2004] ZMSC 148 (6 April 2004)

at Ndola, to the offence of rape contrary to Section 133 of the Penal Code, Cap 87 of The Appellant pleaded guilty before the Subordinate Court of the First Class, holden the Laws of Zambia. Kalunga Vs The People {1975 ZLR 72} 1. Case referred to: Sakala, CJ., delivered the Judgment of the Court. JUDGMENT b For the Respondent: Mr. L. E. EYAA Principal State Advocate Captain F. M. Nanguzyambo, Director of Legal Aid For the Appellant: 6th April, 2004. Sakala, CJ., Mambilima and Silomba, JJS Coram: RESPONDENT THE PEOPLE vs APPELLANT KENNETH CHISANGA SCZ APPEAL NO. 20 OF 2004 IN THE SUPREME COURT OF ZAMBIA (CRIMINAL JURISDICTION) HOLDEN AT KABWE SCZ NO. 10 OF 2004 (150) '· ~ court, had it tried the case, would have imposed a somewhat greater ''It is not proper to enhance a sentence simply because the appellate the learned Director of Legal Aid, this court stated: to us by the case referred Director of Legal Aid. In the case of Kalunga Vs The People{1}, We have addressed our minds to the written heads of argument by the learned in principle nor was it totally inadequate to meet the charge of rape. Aid was that the sentence of 60 months imposed by the trial court was neither wrong The gist of the submissions on behalf of the Appellant by the learned Director of Legal Q the court felt that had it tried the case, it would have imposed a greater sentence than Judge, upon review of the case, erred in law by enhancing the sentence simply because that the learned On behalf of the Appellant, one ground of appeal was filed namely; that imposed by the trial Magistrate court felt that it had a duty to impose a deterrent sentence. prevalent, and that women needed protection from such people as the Appellant. The that as of late the offence of rape had become the offence was very serious; that Labour. The reasons given by the High Court for enhancing the sentence were the High Court sentenced the Appellant to 15 years Imprisonment with Hard review, the trial Magistrate never committed the case to the High Court for sentence. On record was called for review is not clear on the record. What is clear, however, is that The case record came up before the Ndola High Court for review. How and why the trial Magistrate sentenced the Appellant to 60 months Imprisonment with Hard labour. knowledge of a woman namely, Annastazia Mbati Chipeta without her consent. The District of the Copperbelt Province of the Republic of Zambia, unlawfully had carnal The particulars of the offence were that, on 21st March, 2003, at Ndola, in the Ndola : J2: (151) I, trial Magistrate. To that extent the imprisonment with hard labour imposed by the sentence of 60 months In its place, we restore the original that sentence. principle but was also too high that it comes to us with a sense of shock. We set aside The sentence of 15 years imprisonment imposed by the Judge was not only wrong in appeal is allowed. Court could have been at large to impose any sentence. been different if the trial court had committed the case for sentence, then the High a sentence which was above the jurisdiction of the trial court. The scenario could have In the instant case, it is the Judge, on review, who was wrong in principle by imposing have imposed a somewhat greater sentence. enhance a sentence simply because the appellate court had it tried the case would power, it cannot be said to be wrong in principle. In other words, it is not proper to this case, it is limited to 5 years. Where a court has imposed a sentence within its In according to the provisions of Section 7 of the Criminal Procedure Code is limited. The Appellant was tried before a Magistrate of the First Class whose sentencing power The learned Director of Legal Aid pointed out that 300 percent sentence enhancement should come to this court with a sense of shock. 0 circumstances of the particular offence." unless it is of the opinion that it is totally inadequate to meet the of shock. Equally, it will not interfere with a sentence as being too low as being too high unless the sentence comes to the court with a sense sentence. Just as the appellate court will not interfere with a sentence {152} : J3: I• ; . /rmc SUPREME COURT JUDGE S. S. Silomba ' '""~"""""""""""" SUPREME COURT JUDGE I. C. Mam bili ma rj--=-~ CHIEF_ JUSTICE E. L. Sakala ''' '' '''' ,,,,;.q).{,:.>.'' ''' '.' .. '.' '''' '''''' ''' ''''. ~-'f_J (153) ,,.,. '~-., : J 4: I~• \j_-f ,j• t * j. . i''! ; ' ':.' ;i.'j l' f ,~ 1 ·- ·_, 'j},; ; h,ti ,, .•. N.~· • h"t '~:••·~~~ ·f', . ··f,f: i'j };,::J±t E: ,-: guilty to three counts of burglary and theft contrary to sections 301 and 272 of the The Appellants, who had originally been charged with aggravated robbery, pleaded Penal Code, Cap 87 of the laws of Zambia. Lazarous Moonga Vs The People SCZ Appeal No. 11 of 1989 Muka and Another Vs The People {1983} ZR 94 2. 1. Cases referred to:- Sakala, CJ., delivered the Judgment of the Court. JUDGMENT For the Respondent: Mr. L. E. EYAA, Principal State Advocate Captain F. B. Nanguzyambo, Director of Legal Aid. For the Appellants: 6th April, 2004. Sakala, CJ., Mambilima and Silomba JJS Coram: RESPONDENT APPELLANT APPELLANT APPELLANT APPELLANT 4th 3rd 2nd 1•t THE PEOPLE vs EUGINE M. TEMBO DAVIEW SAILONI KAUNGA KATONTOLA ISAAC SIMUTOWE SCZ APPEAL NOS. 23.24.25.26 OF 2004 IN THE SUPREME COURT OF ZAMBIA {CRIMINAL JURISDICTION) HOLDEN AT KABWE SCZ NO, 9 OF 2004 ( 147) \ ,, '-,,,,'----,, In a recent case of Lazarous Moonga Vs The People, Supreme Court Appeal No. 11 of 1989 (2) we said:- proper procedure is for the sentences imposed to run concurrently. where the facts of a case disclose a series of offences forming a course of conduct, the offences were committed in the course of the same conduct. We held in that case that In the case of Muka and Another Vs The People,(1} the facts were that a series of principle. He pointed out that the sentences were excessive and that the court should Appellants' activities as a single course of conduct. He submitted that this was wrong in contention by the learned Director was that the court below did not treat the appeal attacking the order of making the sentences to run consecutively. The filed one ground of On behalf of the Appellants, the Learned Director of Legal Aid re-visit them. imprisonment with hard labour to be served by each of the Appellants. They all The trial court ordered the sentences to run consecutively making a total of 15 years () appealed against the sentences. 5 years imprisonment with hard labour on count three 4 years imprisonment with hard labour on count two, and 6 years imprisonment with hard labour on count one, as follows:- recovered from the Appellants' homes. The trial court sentenced each of the Appellant goods from three complainants. According to the facts, some of the stolen items were The particulars of the offence alleged that the Appellants stole assorted household (148) : 2: _}· ~ /rmc SUPREME COURT JUDGE S. S. Silomba ···•···················································· SUPREME COURT JUDGE I. C. Mambilima ······················································· r) <:=> ~. CHIEF JUSTICE E. L. Sakala ,,,,B.~ ............................... .. imprisonment with hard labour. To that extent the appeal succeeds. making a total sentence to be served by each Appellant to be one of 6 years In its place, we order that all the sentences run concurrently, to run consecutively. We re-confirm this principle. We, therefore, set aside the order making the sentences appropriate for the whole course of conduct ........ " offences, the court should assess the proper sentence which is engaged in a course of conduct and in the process has committed many " ......... we confirm that the position where an accused person has been : 3: (149) I I' \i.fn~ 1 ._ ':l.'jl,pH1 .i",'j l' '.•t' .-.~-!:;·ti~'.ift,;·' ''i'<i"". ':1-'·: -: i-"!·~l:ff( ·• C)