Kapina v People (Appeal 119 of 1985) [1987] ZMSC 80 (15 September 1987)

IN THE SUPREME COURT OF ZAMBIA Appeal No 119/1985 AT NDOLA (Criminal Jurisdiction) IN THE MATTER BETWEEN: PETER KAPINA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Ngulube, D. C. J., Gardner and Sakala, JJ. S. 15th September, 1987 For the Appellant : In person For the Respondent : J. M. Mwanachonga, Senior State Advocate JUDGMENT Ngulube, D. C. J., delivered the judgment of the court. The appellant pleaded guilty to the charge of burglary and theft. The particulars allege that he and another during the night of 25th July, 1983 at Kasama jointly and whilst acting together broke into the dwelling of the complainant and stole the property listed in the charge sheet. When called upon to plead the appellant admitted the charge. The facts were then dictated to the court and the appellant and his co-accused were asked if the facts were correct. Both the appellant and the co-accused said that the facts were correct. The appellant now alleges in his ground of appeal that the learned trial magistrate wrongly entered a plea of guilty when he had denied the charge. There is nothing on the record to support this submission on the part of the appellant. We find that there is no merit in the appeal against the conviction and that part of the appeal is dismissed. The appellant also complains against the sentence. The learned trial magistrate imposed a sentence of eight years but when the appellant appealed to the High Court, the 2/ learned learned appellate Judge, without assigning any reason other than that the appellate had twelve previous convictions, decided to give him the maximum for this offence namely ten years imprisonment with hard labour. We have no hesitation in finding that the enhancement of the sentence was totally unjustified and that it is wrong in principle to punish the appellant for previous offences. The property in this case was worth K92 and some of it was recovered; the appellant pleaded guilty and that fact also entitles him to some credit. The sentence of ten years which is the maximum comes to us with a sense of shock. We allow the appeal against the sentence and set aside the sentence of ten years. In its place, we substitute a sentence of five years with effect from 4th August, 1983, since we consider that in most cases of burglary and theft the sentence _ should begin around that figure. The appeal succeeds to that extent. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE