Chilekwa v People (SCZ Appeal 126 of 1992) [1993] ZMSC 54 (8 June 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 126 OF 1992 HOLDEN AT NDOLA. (Criminal Jurisdiction) NINGO CHlLEKHA Appellant VS THE PEOPLE Respondent Corams dweupe, O. C. J., Sakala and Muzyamba, JJ. S. 8th June, 1993. Hr. S. A. G. Twumasl, Senior State Advocate, for the State. Tire appellant in person. Sakola, U. S. delivered the judtynent of the court. JUDGMENT Tne appellant was jointly tried with four others on an information containing two counts of armed robbery contrary to Section 294(1} of the Penal Code Cap 146 ef the Laws of Zambia. The particulars of the offence alleged that the appellant, with four others, cm the 12th of January 1990, at Mufulira, in the ftjfulira District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and being armed with a firearm namely, a pistol, robbed Nathan Shabinga, on the first count, of a spare wheel, 12 volts battery and a tool box containing spanners altogether valued at K24,700.00, and on count two, they robbed Mathews Kwango of one National Registration Card and K10.00 cash altogether valued at K13.00, the property of the said Mathews Mwango. In both counts, it was alleged that they used violence In order to obtain or retain the said property. The learned trial judge was not satisfied with the evidence of identification against the four others and consequently acquitted them. He was also not satisfied with the evidence of a firearm having been used. For that reason, the appellant was sentenced to the mandatory sentence of < fifteen years imprisonment with hard labour. He has appealed against /... J2. that sentence. briefly, tne facts in support of the conviction were that, PWI U>e complainant in count one and PH2 the complainant in count two had a breakdown with their vehicle after rtokambo border on their way to Hufulira. While at the scene, five men approached them and assaulted them and took away from tnem the items the subject of the two counts. Although the complainant testified that they were sole to identify their assailants and did actually Identify them al an identification parade at the police station, the learned trial judge was not satisfied with the evidence of identification on account of tne time and manner the offences were committed after midnight. The evidence connecting the appellant to the offence, however, was that, hardly a day after tne roboery, he was found in possession of a National Registration Card belonging to the complainant In count two. He was also found with a starter pistol. On this evidence, the learned trial judge found that the appellant could not have come in possession of the National Registration Card as a mere receiver but tnat he was part of the gang that robbed the complainant. Accordingly, he convicted the appellant. We agree with the findings of the learned trial judge. The conviction was well founded on cogent evidence. Tne appeal against conviction would in any event not have succeeded. The appeal as already observed is against sentence only. The appellant has pointed out that although the learned trial Judge imposed a sentence of fifteen years imprisonment with hard labour, he was at tne time of the offence a juvenile and according to th® appellant, this is supported by the evidence on record when, while giving his evidence, he stated that he was seventeen years old. We also ordered a welfare report in this case. Ine report from the welfare officer confirmed that the appellant was seventeen years at the time of the offence. The record shows that at the time of the trial of the appellant, ne was a juvenile. On 29th beptember, 1992 when the appellant was being sentenced, the learned trial 3/... v \ \ J3. judge was informed that ne was aged ninteen years and the court alluded to this before sentencing the appellant. At page fifteen of the record, the learned trial judge had this to say> “Accused is a first offender aged ninteen years end therefore entitled to leniency. Aggravated robbery is a very serious offence. Accused one Is luck that the pistol he used in this execution of the offence is infact not a firearm within the meaning of the Firearms Act. Otherwise the sentence would have been different from the sentence I am now going to impose." It would appear to us that the fact that the appellant had raised the Issue of his being a juvenile was never considered. Consequently the learned trial judge fell into error by imposing a sentence of fifteen years imprisonment with hard labour. We cannot say that had he considered that the appellant was a juvenile he still would have imposed the same sentence. In the circumstances the mandatory sentence is set aside. We have had the benefit of a welfare report whose recommendations we accept. Accordingly, in the circumstances of this case, particularly his present age, we order that the appellant be committed to a reformatory school. To that extent, the appeal succeeds. 8. K. Bweupe, DEPUTY CHIEF JUSTICE. £.1. Sakaia, PREME COURT JUDGE. w. H. Muzyamoa, SUPREME COURT JUDGE.