Moses Chanda v The People (Appeal 34 of 2007) [2007] ZMSC 58 (10 April 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KBWE (Criminal Jurisdiction) Appeal No. 34/2007 BETWEEN: MOSES CHANDA APPELLANT Vs. THE PEOPLE RESPONDENT Coram: LEWANIKA DCJ, MUMBA , CHITENGI, JJS I on 10TH APRIL, 2007 and For The AppeJiant: Mr. E. M. Sikazwe Acting Director of Legal Aid and Mr. M. Mwelwa, Legal Aid Counsel For The People: (cid:9) Mr Patrick Mutale, Principal State Advocate JUDGMENT Mumba JS, delivered the Judgment of the Court. Case referred to:: 1. Moses Mwiba vs. The People (1971) ZR 131 This is an appeal against sentence. The appellant was convicted on one count of defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia. Upon conviction, he was referred to the High Court for sentencing. He was sentenced to 25 years imprisonment with hard labour with effect from 25th July, 2005 the date of his arrest. -J2 - The particulars were that the appellant (cid:9) 20th July, 2005 at Mpika in the Mpika District of Northern Province of the Republic of Zambia did unlawfully have carnal knowledge of Dina Namwila, a girl under the age of 16 years. The appellant was convicted after trial. The appellant originally filed an appeal against both conviction and sentence. At the hearing, Mr. Sikazwe, Acting Director of Legal Aid, appearing for the appellant, informed the court that the appeal against conviction was abandoned, the appellant was only pursuing the appeal against sentence. He filed written heads of argument supporting two grounds of appeal. The first ground of appeal was that the learned trial Judge had erred in principle when he sentenced the appellant who had shown contrition, to 25 years imprisonment with hard labour. The second ground of appeal was that the learned trial • Judge had erred in principle when he sentenced the appellant to 25 years imprisonment with hard labour, a sentence which was excessive and did not reflect the leniency which should be accorded to a first offender. Mr. Mwelwa, Legal Aid Counsel appearing together with Mr. Sikazwe, made:l oral submissions to supplement the written heads -J3- of argument. In essence, the oral arguments were a repetition of the written heads of argument. On the first ground of appeal, Mr. Mwelwa submitted that the appellant had shown contrition after bei;;g found guilty of the offence, this was during mitigation and that the trial court accepted the appellant's remorse. In support of this submission, Mr. Mwelwa cited the case of Moses Mwiba vs. The People (1) and quoted Doyle CJ, as he then was, when he held: "While sentencing due allowance should be given to accused person who pleads guilty and shows contrition." On the second ground of appeal, Mr. Mwelwa submitted that a sentence of 25 years imprisonment with hard labour for a first offender was excessive and did not reflect leniency which should be accorded to a first offender. He submitted that the trial court recognized the principle of leniency when it stated that leniency • could be accorded to a first offender. He submitted that the sentencing Judge at the High Court should have taken, this fact into consideration when passing sentence. Mr. Mwelwa argued that the mandatory minimum sentence is 15 years, that a sentence of 25 years was on the high side even though not coming to this honourable court with a sense of shock. -J4- Mr. Mut,-X-'.-,, Principal State Advocate, appearing for the State, submitted that courts would be failing in their duty if they passed sentences which did not reflect the gravity of offences. I-ic submitted that even though 15 years is the mandatory minimum sentence, he did not view 25 years as coming to this court with a sense of shock in light of the circumstances of this case. He submitted that the appeal against sentence had no merit, he urged the court to dismiss it. Mr. Mwelwa in reply, urged the court to consider principles of sentencing for a first offender. He submitted that when Parliament se out 15 years as a mandatory minimum sentence, the intention was to deter and such sentence should be sufficient. He considered 10 years above the mandatory minimum sentence to be on the high side. We are grateful to both Counsel for their spirited submissions. The facts of this case show that the appellant went out to commit the offence when he grabbed the prosecutrix and defiled her. She was then aged 14 years. In the case of Moses Mwiba (1) cited by Counsel, accused pleaded guilty besides showing contrition, so the argument for mitigation of sentence was weighty. In this appeal appellant went to full trial, he was not prepared to plead guilty, he only accepted wrong doing after he was found guilty. We are of the view that contrition accepted -J5- by the trial court was not worth much. The first ground of appeal fails. On the second ground, while we accept that leniency should be accorded to a first offender, we are of the view that courts should take into account circumstances of the offence which constitute aggravating factors. In this case, the medical report shows that the victim got infected with a sexually transmitted disease as a result of the defilement. Defilement in itself is a very S serious offence, the infection of the victim is a factor in aggravation. We, therefore, do not view the sentence of 25 years under these circumstances as excessive. We find no merit in the second ground of appeal. The appeal against sentence is dismissed. Accordingly, we confirm the sentence of 25 years imprisonment with hard labour. (cid:9) (cid:9) -J6- O. M. Lewanika DEP( 11 TY CHIEF JUSTICE FeN. M; Mumb& SUPREME COURT JUDGE . •11I (cid:9) •'• ) • P1CHITENGI SUPREME COURT JUDGE