Mawengo Mikosa v People (SCZ APPEAL NO. 110/2012) [2013] ZMSC 96 (3 September 2013)

J1 . IN THE SUPREME COURT OF ZAMBIA .. .. . - . _ _.•· ., __ , SCZ APPEAL NO. 110/2012 HOLDEN -AT· NiiOLA (CRIMINAL JURISDICTION) BETWEEN: . MAWENGO MIKOSA Appellant .. - .. - . , .. :~~---- AND THE PEOPLE Respondent Coram: Mumba, A/DCJ, Wanki, JS, Lisimba, A/JS on the 4th December, 2012 and 3rd September, For the Appellant: Mr. I. Chongwe, Senior Legal Aid Counsel For the Respondent: Ms. C. L. Phiri, Senior State Advocate JUDGMENT Lisimba A/JS - Delivered the Judgment of the Court. J2 Cases referred to: 1. Kambarange Mpundu Kaunda vs. the People (1990-92) Z. R. 215. 2. Katebe ·Vithe People (1975) Z. R. 13. 3. Charles Mwansa Vs The People (2008) Vol. 2 Z. R. 53. 4. Emmanuel Phiri Vs the People (1982) Z. R. 77. 5. Musupi Vs the People (1978) Z. R. 271 . .. - .. 6. Chimbo, and Others Vs The People (1982) Z. R. 20. 7. Nsofo Vs The People (1973) Z. R. 288. . -· . ., 8. Jutronlch~ -~chutte and Lukin Vs The People (1965) Z. R. 9 (C. A.). 9. Solomon C:hilimba Vs The People (1971)2. R. 36 (C. A.). ·. : .- Legislation referred to: 10. . . The Penal Code, Cap. 87 Section 138 -11. · · The . Criminal Procedure Code, Cap. 88, Section 217 This is an- appeal against conviction and sentence. The appellant was charged bef9f~ magistrate of the Third Class sitting at Solwezi with - . . . _·.-: · .. the offence of defilement contrary to Section 138 of the Penal Code. The allegatiqns are that on the 2nd December, 2007, at Mufumbwe, the appellant had an unlawful canal knowledge of a girl under the age of 16 . . years. The appellant pleaded not guilty to the charge. J3 The first witness for the prosecution was PWl a young girl aged 12 years. After a voire dire was conducted and the trial court was satisfied that PW1 could give evidence on oath, the witness testified that on the . . . 2nd of Dece~ber{'" 2007, at around 17.00 hours, she was sent by her mother to go ··:and draw water from a well. While at the well, the appellant grabbed and dragged her into an abandoned shelter at . . Sachisola's village and defiled her. PWl testified that she had known the . . . . . appellant for about twelve months. Prior to this incident the appellant had defiled her three times on separate occasions. It is .. in evidence that PWl did not return home in good time and her mother se'nt PW2 the sister of the prosecutrix to go and look for her and PW2 left. After looking around, she heard the prosecutrix screaming in an abandoned shelter and she rushed to the shelter and found the . ·•· accused on .top of the prosecutrix. She was half naked and the appellant's trousers were below his knees and he was also half naked. PW2 returned to· the village and informed her father PW3 about the incident. , - PW3 went to the scene and found the appellant zipping up his trousers and was hi the process of running away from the scene and the J4 prosecutrix was also rising up from the ground. PW3 apprehended the . . - appellant wh.o pleaded not to be beaten. The appellant was taken to Mufumbwe Polite Station where the matter was reported and a Medical Report Form Exhibit Pl was issued to PWl. ·- On the 5th oe·cember, 2007, PW4 administered a:warn and caution statemenf ·bu( ::~s -he was not satisfied with the reply given by the appellant, he formerly arrested him for the subject offence. PW4 produced thE\,JYfedical Report exhibit Pl which was consistent with PWl's complaint : '.- -- _ , . . . · __ - , .. · At the conclusion of the prosecution's case and after his rights were explai~ed to 0 him the appellant gave a sworn statement. He stated that on the material date, at around 17.00hrs he went to eat mangos at Chitoko's · Village. ---~while there he saw the prosecutrix PWl and PW2 at the well: · PWl approached him and enquired as to whether the mangos were ripe. When PW2 saw him with PWl she rushed to inform her father PWJ who then came on the scene. PW3 remonstrated with the appellant saying that he is always troubling the prosecutrix as if she was . his girlfriend. PW3 then grabbed the appellant and took him to the ,- JS village to inform his relatives that he found him defiling the prosecutrix . .. . .. . The appellartrdenied the allegation. In support .of his defence the appellant called his father DW2 and two other witriess~s namely, DW3 and DW4. The three witnesses gave ·identical . ··ev~d.~nce· stating that they did not know what crime the ap.pellant ·h,id committed; they only saw PW3 dragging the appellant to their village; The learned' trial magistrate, after considering the evidence before him, . found that~ PWl was a credible witness who gave an accurate account' of how she was defiled and he accepted her evidence. The trial court ·also found that PWl 's evidence was corroborated by PW2, PW3 andthe medical report produced by PW4. In the opinion of the trial court the evidence against the appellant was overwhelming. As to the defence case, the trial court found that the appellant version was a tota_l lie. He rejected it and convicted the appellant. Due to Um.itedjµri_sdictjon, the trial court then committed the appellant to the High Court in terms of Section 217 of the Criminal Procedure Code . qap .. BQ ofthe Laws of Zambia for sentencing. The High Court sitting J6 on circuit at So!lfJezi sentenced the appellant to 45 years imprisonment . . - .,":. ._. - . : . ..l ··; .... , with hard labour. ·- ~-- ' , The app-effant has advanced two grounds against both the conv1ttibn ,~-nd sentence. The first ground is that the learned trial -Magistrate misdi_rected himself when he failed to warn himself against the dange( of false implication of the accused by PW2 and PW3. The second ground is' that the Hon. Court below was wrong in principle and · in law when it sehtenced the appellant to 45 years imprisonment with hard labour. -_-· ,,- . Submitti0:~(on ground one, learned counsel for the appellant Mr. Chorigwe stated··-that since PW2 and PW3 were relatives of the prosecutrix, the ,-trial court ought to have treated them as suspect witnesses ·who may_ have a possible interest of their own to serve. The trial .court in this case did not warn itself against the danger of false implication. It also failed to go further to ensure that that danger has been excluded. · It was s-ubmitted that the trial court did not consider and establish . ..- . that there could' be no motive for the prosecutrix to deliberately and J7 dishonestly make a false allegation against the appellant. It was contentedthafonly when such a motive is found to be absent can a trial court rely on ·the evidence of the complainant as to ·the identity of the ·culprit . as· ;a~ .--~'special and compelling" ground which could justify a convictiorf; Co.un.~el has cited two cases in support of these propositions . . These .. ar~· . Kambarange Mpundu Kaunda vs . The PeQple 1and ·' Katebevs The P~ople2 . In the Kambarange case 1 , this Court said: . . ' . . . , ... "The danger of false implication must be recognized and be excluded before a conviction can be held to be safe" . • !. In the Katebe case 2 , this Court stated that although the Cautionary Rulf.of practice has long since become virtually a rule of law, ·· if there are special and compelling grounds for so doing, it is competent to convict 6n ·the uncorroborated testimony of a witness with a possible '• . - ·- interest to serve. On . Groundyr.wo, Mr. Chongwe has submitted that imprisonment of 45 year~ \A/ith :hard labour is unjust. The court below did not state the -. "!. . basis, whether -mitigating or aggravating factors, upon which the sentence imposed was arrived at. This is a serious omission which J8 should render the sentence to be reduced. It was argued that the appellant in this case is a first offender and he deserves lenience. -· -· Counsel has -invited · this court to compare this case with the case of . . C_harle_s Mwansa vs The People3 which was decided by this court in 2008. In that c:a~e ··a 72 years old man defiled a 6 years child. He was convicted by the Magistrate's Court and later sentenced to 20 years . . -- -- • ' . - - ~ • • • - . .,. ' ➔ imprisonment With hard labour by the High Court. On appeal, this court . . . .. ' . . , .. ~ . reduced the sentence to 18 years imprisonment with hard labour. · It was pofntid out by Counsel that in this case, the appellant was · age'd 38 years at ~he time he committed the offence and the prosecutrix, was aged 12 years: Therefore, a sentence of 45 years imprisonment with hard labour, in the circumstances of this case, is on the higher side and has ;urged us:to -consider reducing it. . In response, ·Ms. Phiri, learned Senior State Advocate, submitted ' . . . on Ground One that there was no need for the trial court to warn itself of the danger of false implication as no such danger existed. The mere fact that ,PW2 and PW3 were relatives of the prosecutrix does not make th~m suspect witq~~ses. It was argued that this is a case in which the evidence was very direct in that PW2 found the appellant with his · ·- . . - J9 trousers around ·t,he knees and on top of the prosecutrix and PW3 found the appellant ·zfppipg up his trousers. Both witnesses found the prosecutrix in a distressed condition. When PW4 went to the scene he found struggle marks and the appellant was in the process of running away frorn .:tbe ~cene. It was Counsel's submission that there was no · . other eviderite ~uggesting that any other person committed this offence. . . .:. ,,. ,.,,.. . The issue. o(fal~~ implication is merely intended to save the appellant. . . On Ground Two, Ms. Phiri left the matter to the wisdom of the court. ·- We have considered the submissions of both Counsel, together with the authorities cited, the Judgment of the trial court and the , - sentence passed bythe High Court. In ground one the first issue raised . by the -defenc~Js· of failure by the trial court to warn itself against the danger of false implication and ensure that the danger is excluded. But in its judgment aJ P13 of the record the trial court stated as follows: "I equally warn myself that, in sexual offences, there is a danger of false · complaj_nt and false implication. To avoid this danger, the •. . . -. · . ·,, ••. evideilce:. of the prosecutrix must be corroborated. Equally the · identity of ~~e accused must be corroborated". J10 - The above ;statement, in our view, clearly shows that the trial court .. ·. , . . - was alive to · t_he-Jequirement in sexual offences to warn itself before . . . ..... ... • .. , . · conviction. - We_ are therefore satisfied that the warning made by the trial court was ~:suffjcient. The -tda( court also recognized that to avoid the danger of false - complain('and false implication the evidence of the prosecutrix must be corroborated. Ihis is explicit from the judgment of the court. We theref6re --find no merit in the first part of the defence submission in ground one. -' The ·secd·nd issue raised by the defence in ground one is that the trial -court rnisqirected itself in finding that PW2 and PW3, relatives of PWl,and therefore suspect witnesses, corroborated the evidence of PWl. : Before considering this issue we wish to echo what this Court - , said in Emmanuel Phiri vs The People4 . It was held that in sexual . offences there must be corroboration of both the commission of the offence· and th_e identify of the offender in order to eliminate the danger __ of false complaint and false implication. ,r Jll In relation to the evidence of suspect witnesses, this Court did emphasise in the c~se of Musupi vs The People5 that the evidence of . :-: .--· . the suspect ·witness cannot be corroborated by another suspect witness unless the :w1f11isses are suspects for different reasons. . . . . . .,- · _ This -Co'urt.took this point further in Chimbo and Others vs The . . . . . . . . ·- People6Wheo· -it stated that where witnesses may have the same dangerous motive of false implication, the witnesses could not, in these circumstances, corroborate each other, and each would require corroboratioq _ or support from independent witnesses or other circumstance a·mounting to something more. ·• <' In this maher the finding of the trial court is that the evidence of ::·,.. the complainant was corroborated by that of PW2 PW3, and PW4. PW2 and _ PW3 being . r~latives of the prosecutrix are suspect witnesses and cannot corroborate her evidence. Therefore, the finding by the trial court in relation to PW2 and PW3 was clearly a misdirection. But there · i_s. the· evidence of the arresting officer, an independent · witness, who :progtJced the medical report Exhibit Pl which confirmed J12 that the · complainant was defiled. This in our view was sufficient corroboratiorl ofthe commission of the offence. As • to the tor.rpboration of the offender, it is in evidence that the -... AppeUaht ·was _found together with PWl. For his part, the appellant . .,· .•··- ... • admitted · being with PWl_ but stated that he was just talking to her. His ·version was . rejected by the trial court and rightly so. By admitting that he was with -PWl ' the appellant placed himself on the scene. Thus he had an oppo_rturiit:y° to commit the offence. We are therefore satisfied that the . circum$tances and locality of the opportunity as there was in this case amount to corroboration of the offender. This is in line with the decision of this'.'~ourt in Nsofu vs The People7 at page 291. . . . . :-- - We note :,l~at PWl had known the appellant for about twelve .. months prior :to the commission of the offence and the offence was committed during broad day light at 17.00 hours. Therefore the possibility of fals~ identity has been excluded. In our view, these are ''special and compelling" circumstances which would justify a conviction even on· · the unc=:orroborated evidence of a witness with a possible . interest to serve, .as was held by this court in Katebe vs The People2 . . . . . , . . . Ground one ther·efore must fail. J13 , • , ... , .. . _ We now turn to consider ground two. At the outset, we want to . . ·.• ·'::. state that th~ -~:s~$ssment of the sentence is a matter for the judge or . ~- :. _. _. ... magistrate s~izeq:·with the trial of the case. Therefore, the mere fact that this court/ as an Appellate Court, would, if in the position of the trial . _; ,•.,. . ,. , • · court, h9ve 'i!,ip~sed a different sentence is not _ sufficient reason for . . . . . . , .. - ' . . disturbing.the sentence imposed by the lower court. There are however, e · ·_ circumstances ·under which this court may interfere with the sentence .. --.. imposed by the lower court. These are: First, if the sentence is so ·manifes~ly exc~i~ive as to induce a sense of shock; second, if there are _ any circumstances appearing upon the record of matter which has a bearing on the question of the punishment but which the trial court failed to consider; third, if the trial court had followed Y'. Jrong principles in imposing the ·:~enteoce; fourth, if the trial court has exceeded its jurisdiction in-,the n:iatter of sentence; or fifth, if the Appellate Court has . . ' . ' : .- ... ,. . . . .· ~-- . before it fresh material which was not available to the trial court. - - Some ofthe above guidelines were outlined by the Court of Appeal . .. in the case ofJutronich, Schutte and Lukin vs The People8 . J14 The record in this matter shows that in passing the sentence, the • • • • • •• J • Judge simply: stated as follows: . ·' "Matter, fo:r sentence. Convict sentenced to 45 years imprisonment · · wi't:h: :~~~d iaboi1r with effect from 30th December, 2007". There · is no indication on the record that the court considered the submission ;of coun.sel made in mitigation of sentence, in particular that the convi'ct-:,s a ... first offender and is remorseful; neither is there any indication tnaf the court considered the aggravating factors when assessing .the sentence. The failure to do so was an error . . . · · ' . ' •··-:, - . In our vi~w upon committal for sentence the sentencing court has to consider first, ~,tte mitigating factors; secondly, the aggravating factors . . . . _,., e and then do a -balancing exercise to determine which of the two outweighs the other. If the mitigating factors outweigh the aggravating factors ·the court .has to exercise maximum lenience. On the other hand, if the aggravating. factors outweigh the mitigating factors the court may impose a sentence _.it considers appropriate -but subject only to the · guidelines as earlier. outlined. JlS The mitigating factors in this care are that the Appellant is the first offender;- he is:·· remorseful and regrets having defiled the prosecutrix . " ' -~ ·. . The .aggravating _factors are that the prosecutrix was still of tender age, being aged 12 years at the time of the commission of the crime and that . . ~. the Appellant -defiled her on three different occasions prior to the ·. incident .as showr.i at page 5 of the Record. This evidence was not challen~fed in cross~examination. After weighing the mitigating factors .. against the aggravating factors we are of the view that the aggravating factors outweigh . the mitigating factors and justify the imposition of a -··"'', ' · stiffer sentence; ::~ ~ . We c:Jo asfept_ that the High Court did not give reasons of how it • • • • . " 0 ·> •·•• N • • • 0 ~~ . arrived at the · sentence it imposed but despite such failure, we take judicial notice :thaf the offence for which the appellant stands convicted is on the increase -_and there is need to impose deterrent sentences. In this respect we have adverted our minds to the case of Charles Mwansa vs TJ,e People2 cited by Counsel in which a child aged 6 .... .- , ·• years was defileq by a man aged 72 years and was sentenced to 20 · years by' the High Court. The sentence was reduced to 18 years by this court .on appeal. That judgment was delivered in 2008, that is 5 years ago and in the context of the prevailing circumstances at that time which J16 are different from what is pertaining now. Due to the high incidence of · ·. sexual offences, and defilement in particular, in this country, we find that a sentence of 45 years, in the circumstances of this case, does not come to us with·. a: s~fl;e of shock. This ground therefore is unsuccessful. It follows that the 9ppeal is dismissed and both the conviction and sentence are upheld·. · . . . . . F. N. M. MUMBA ACTING DEPUTY CHIEF JUSTICE ·.·•··.·· 0' -· ~ . --A . . , ------------------ M. E. WANKI~ SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE . LISIMBA