Samandango v People (Appeal 17 of 1985) [1987] ZMSC 57 (15 September 1987)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 17 of 1985 HOLDEN AT NDOLA (Criminal Jurisdiction) LUKA SAMANDANGO Appellant v THE PEOPLE Respondent CORAM! Ngulube, D. CJ., Gardner and Sakala, JJ. S., Appellant not present R. Ofafor, Senior State Advocate, for the respondent 15th September, 1987 JUDGMENT Gardner, J. S., delivered the judgment of the" court. The apoe11 ant was convicted on his own plea of guilty of manslaughter; the particulars of the charge being that on the 10th of December, 1983, at Chifila village in Ndola district he unlawfully killed one Rabson Luwi. The facts of the case were that life appellant had an argument with the deceased person, and, according to the statement of facts submitted by the prosecution,, the deceased person severely assaulted the appellant. When sentencing the appellant the"learned trial commissioner said the following:, "It is in,the jxiilic interest that a deterrent sentence be inposed to try and prevent further killings arising out of drunkeness..." Although there was evidence that the appellant had been drinking the reason for reducing the charge from one of murder to manslaughter was the severe assault upon the appellant by the deceased. Apparently it was accepted by the prosecution that the assault was so severe that it justified the use of a spear by the appellant. In the ccircumstances the comment by the learned trial commissioner as to the necessity to prevent killings arising out of drunkenness was irrelevant, and 2/resulted.............. resulted in a misdirection so that the sentence imposed was wrong in principle. We therefore propose to allow this appeal against the sentence of seven years imprisonment with hard labour imposed by the learned trial commissioner. That sentence will be set aside and in its place we substitute a sentence of four years imprisonment with hard labour with effect from the 14th of December, 1983. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Saka la SUPREME COURT JUDGE