Soko v People (Appeal 42 of 1988) [1988] ZMSC 70 (22 November 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 42 of 1988 HOLDEN AT LUSAKA ‘ — i /-ya .i n uh. s7vi( oar»ry > (CriminaL Jurisdiction) j; Count \. J? allied. •• : ; I ' ■ . C* $r i y >j f ryy.'..ilv iHSUSv of ■ .■ i: ■ C? 3,8 Ci’ f COB1 Had - MIKE'SOKB^- IhlS/W. was Appellant- HU - v - uuUt; to-bo th counts and rr*nt wtaiii^g three years-which was consecutive had six-y^rs'Responri^^ CORAM: Ngulube, D. C. J., Bweupe’and-Chaila^AJJ. S^ 5 hr; ; > ' J r ' J | J k» ••' - »• f- i ; s ■ ■ ■ j- k':* ? /•? * «rvi 11 rr; ■ : ; r? : ■ the . ■ . ■ . HMJ.ru? o! 22nd November, 1988 v? ii^urc y’. U. ver, Mr. Sakala, Director . Legal, Aid.^for^the appellant Mr. N. Sivakumaran,Assistant Senior;State Advocate, for the‘respondent JUDGNEN TX^rs i’d • r . ' •• ■ r-K ^t. Janm-rv 1984 ■ " Ngulube, D. C. J. delivered the judgment of the court hu .; Of sU years to sene. ' third ■. The appellant-In tlis case appeals-against'the"severity of the11 sentence imposed on him in respect as it taanspires of th£ee cases. The confusion that arose on most of his case records in this court and in q ■ I -'ft •• -i v-’H ■ • V II.: 5,. the court below was because each time he appealed, his notices of appeal referred to several cases when in fact only one case record was processed 4 ’ , - ’ j. ‘ 1 ’' '-..ri'- \ 1' '' ■ -" ‘ * i ‘ I '* '• at the time. We now have all the three.: case records before us and the appeal would be treated as one appeal for all the threes cases. The first case was No. A/20 of'1984 at Kafue. On 17th January, 1984,';the . ■ ■ ' ■ ■■ - it N ■ . "i- ■ ■ ■ jr appellant pleaded guilty to one count of office breaking in that on ; '■ *' ;■ fl:"'■■ ;>w ' ■ . ■ 19th December, 1983, at Chilanga, he and a co-accused broke into the ■ ‘ . ’■ ’ ■ ' >• ' ’■ r?: ■ ■ ■ ' " ;• y?. : -r i' • ■ ■ o . ■ Game and Fisheries office and stole property worth'K1,030. On 24th ■ < .nrt riiJt . n 1 -iF f" •- h January, 1984, he was sentenced by the learned trial magistrate ■ ■: । rjwrf, vhp i'- •••> fj” .- • ■. Mr. Mukubesa to three years imprisonment with hard labour with effect . f - r,- »$' * ni f^r tha Of from 13th January, 1984. The appeal against sentence on this -I > " -t*-’-.-;! >r - • ” ■ s 'iKV? - particular case was heard and determined by the Hon. Mr. Justice •> Sivanandan who dismissed the appeal after observing that the appellant < f’, .n j I jj.-f i»?, • ••• • ■ was complaining of other sentences which were riot before him. the 2/..............second lr S . ...........4 > •• • -■ f • • • ‘ 3 ■ r :: J/J2 :: second case was brought separately but again on 17th January, 1984 > before Mr. Mukubesa in case Number A/22 of 1984. The charge 'contained two counts of burglary and theft. He denied the count which alleged that he burgled and stole property worth K6,675 from the houserof J I-,-: -• ; . I Leonard Zulu.on 4th November, 1983. This count was withdrawn. His co-accused Isaac Chola Ngulube pleaded guilty to both counts'and received a concurrent term tatalling three years which was consecutive to the earlier case; that is, Ngulube hadsix years to serve and that is what we confirmed when we dealt with his appeal and clarified the misunderstanding in the High Court where the learned appellate judge caused the sentence of Ngulube to be nine years. However, this appellant only pleaded guilty to the second count which alleged that on 19th October, 1983, he burgled.the house of Mark Tembo and stole property worth K215. On 24th January, 1984, on the same occasion as for the first case and before the same magistrate, he was sentenced for this other count to three years imprisonment with ‘ hard labour, consecutive to the three years in the first case. The position, therefore, was that as at 24th January, 1984, this appellant had a total of six years to serve. The third case- concerned the count which was withdrawn under the second case, that .is the burglary at Leonard Zulu's house on 4th November, 1983. There was a full trial before another magistrate-Mr. Ndhlovu-who found ‘him* guilty and convicted him. On 2nd May, 1984, the.appellant;received another sentence of three years consecutive to the other sentences bei served. This brought the total to nine years which he now complains of- . * m t . If , 3a® 4. - ; . < ► We have considered the grounds' ofCcomplaint against the severity .p-tr •- f ... • of the effective total of nine years imprisonment. ■ We have taken into account the fact that, on the facts, the appellant was clearly engaged in a course of conduct and that, had. all the cases been disposed of before the same court, the learned trial court would have been obliged to assess a sentence as for the whole course of conduct. We agree that the effective sentence of nine years Induces a shock and that, for the whole of that criminal activity-on a monthly basis-the appropriate effective total should be six years 3/..........................imprisonment imprisonment with hard labour with effect from 13th January, 1984. We will arrive at this result by ordering that the sentence in the third case will be concurrent with the sentence in the second case. The resulting concurrent sentence of three years on the second and third cases will be consecutive to the'flrst case. In this way, we arrive at a total sentence of s^, years' imprisonment with hard labour from 13th Janauary, 1984, which sentence we consider appropriate to Reflect disapproval of the appellant's criminal conduct. The appeal is allowed to the extent indicated. ‘ ■ •! ■.?> * 1 J. .•cr state Mzocate, for J u bM. ’M.£sl W. Ngulube ■ - ------------------- DEPUTY- CHIEF JUSTICE •------------—— • jj . J, the of the court • ' ■Hi?' i against tl'Kt i* rw v? mt.vpvi ty tv vr.?’ • * . B. K. Bweupe . ... • •; . . . < 5n ACTING SUPREME COURT JUDGE ■ r > ..'-u U r to ■ .• I- Ms -to to M - io fac: only yna case record precess to : < . t ■ e Mi Ur tbrti? cue records before; -us and-the • • • ■ -to ar on? appeal-for all the three- cases. -Th?* r-- ' i u .■ • •. . ilahgs, he and a co-accused broke inf^ the . . nnd j lad stole property worth KI,030. On 24th . ru^ncfjd by the.karned trial magistrate ?>. <;;■ i.o G.. Imprisonment with‘hard labour with effect ' .'• > appeal against s^ntance or this J W' ■ -'/'c’jnd dekniiinsd by th-s ton, Mr. uistxce Si ■ t - ■ spyea) after-'obkrvlto the fepp-^Iiant 2/.,...... second