Banda v People (Appeal 5 of 1988) [1988] ZMSC 81 (26 July 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 5 of 1988 HOLDEN AT LUSAKA --------------------------------- i ■ -r i - a- (Criminal Jurisdiction) . , • . •:? ■ ■■ f, Kt ;■ '.cy/.'-Ace y.vtn years doos . who has not. wasted the v^xency p >pe?ed wo$ • , , . . .... NATHANIEL. B^DA H:: is ^Appellantislder ' i,not to tc1 rby CORAM: Ngulube, D. C. J., Gardner', J. S. and Chailai-AJ. S.f ’ THE PEOPLE i ? Respondent‘s ' 26th July, 1988- Appellant in person tnc te ^..vo. F. N. Mwiinga, Director of Public^rosecutlons^ to stti Ap:u, '* JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant pleaded guiIty.to a charge qf,manslaughter... The..... particulars were that on 10th April, 1987, at Chilanga, ..in the Lusaka • '' ' j / ■ ■ ; ■ In' district, he unlawfully caused the death of John Zulu. The deceased was a mental patient, and on 8th April, 1987, at Shakatwa village in the Chilanga area in the evening, the deceased entered the appellant's house while he, the deceaded, was completely naked,7 There were three girls sleeping in the house and their shouts'for'help attracted a number of persons, including the appellant. The appellant thereupon assaulted the deceased person. The deceased died subsequently and the cause of death was found to be contused brain with haemorrhage. The learned trial commissioner, in imposing a sentence of seven years, exception to the beating up of mentally sick^persons by the members of the public. The learned trial commissioner was of the opinion that members of the public had a moral duty to look after the mentally sick and to try to understand them, instead of assaulting them. For that reason the court below was of the opinion that the case called for a deterrent sentence. The appellant has advanced a number of grounds against the sentence and, having regard to the factors that he had urged in mitigation, he asks us to find that the sentence was too severe. We agree with him. 2/................ The Ru'l Cur'./ C: ;'.'V . kg, 5 of 1989 : J2 : The appellant had pleaded guilty and the sentence of seven years does not reflect the leniency due to a first offender wbo has not wasted the court's time. We consider, therefore, that the sentence imposed was wrong in principle and must be-sejLyasi^ is more, {w$ ^psider that this is a type of offence which is not likely to be repeated by the appellant and that, in order to deter the appellant and others from assaulting mentally sick persons, a moderate sentence of imprisonment would be adequate. We allow the appeal and set aside the sentence of seven years and in its place we sentence the appellant to eighteen months imprisonment with, hard labour back-dated to 16th April, 1987, when he was taken into custody. '' • 9. C. in.-v*»M Ina- Judgment of the court- -DEPUTY CHIEF-JUSTICE ■ the Lusaka • 4' - Awfully c j’sed the death of tew Zulu. Tim deceased r ■; - p-t (.nV, ,p.? £pri< ; 19$?, at ShakaWo village in - • -- , ■ I .. »; • , -t . - J ; y.-4 ‘ •„ - “'| -fx. -T'?'. pn, ] $ 3 11 •'<; ; tL T. .. Gardner/ ri, th. ••'•I.- : dr poo ffrir shouts for help attracted a SUPREME COURT JUDGE................. Hfo.rr nf f-TCHi-.. th* appellant. The appellant thereupon person, The deceased died subsequently and the ; • '''‘"r rslener. ?n inr Chaila -r vearc _ ’ ACTING SUPREME COURT JUDGE - ■■ • - ' • ‘ s'i; : ‘y sick by the member: •■■> ; •'■ ■ - ?■ ' i rur a!' dr opinion .. r'Fral ’' nv i<y lock sfter the mentally ; ; ■' - ; of assaulting them. For < - 'rf.m; ';py; i bolt*/ w-?.s of the opinion that the case called ih ■ > •’ n J i r:^:»ber of grounds against the sentence " • • ! . •,to the f^ctoi-s that he had urged in mitigation, he. ■ ■ • ■ hr.c smence was too severe. We agree with him.