Sikaonga v People (SCZ Judgment 20 of 2009) [2009] ZMSC 172 (3 September 2009)

Supreme Court Judgment No. 20 of 2009 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 64/2009 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: SOLE SIKAONGA VS THE PEOPLE CORAM: SAKALA, CJ, SILOMBA AND CHIBOMBA JJS On 1st and 3rd September 2009 For the Appellant: Mr. N. SIMWANZA, Assistant Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Miss N. MATELE, Assistant Senior State n Advocate ___________________________ JUDGMENT__________ SILOMBA, JS, delivered the judgment of the Court. This appeal is against a sentence of forty years imprisonment with hard labour imposed by the learned trial Judge in his order of the 7th February 2008. According to the record of appeal, the Appellant appeared before the trial Magistrate of the First Class, i sitting at Kasama, on a charge of defilement contrary to Section 138(1) of the Penal Code, Chapter 87of the Laws. The particulars of the offence were that the Appellant, on the 17th October 2004 at Kasama in the Kasama District of the Northern Province of the Republic of Zambia, had unlawfully carnally known Foster CHAPUMA, a girl under the age of 16 years. At trial, the Appellant readily pleaded guilty to the charge of defilement of the prosecutrix aged three years and ten months. The facts of the case, as read out to the trial Magistrate, were that on the 17th October 2004 at 2130 hours the mother of the prosecdtrix left her house to visit a local clinic because she was not feeling well. At the time she left the house, the Appellant was left with the prosecutrix who was sleeping. When the mother returned from the clinic at 2200 hours, she was told by the Appellant that the prosecutrix had cried for a long time and that he did not know why she was crying. Upon checking the prosecutrix, the mother was surprised to find that her pant was wet with the man’s semen and her vagina was swollen with some bruises. The mother then asked the Appellant what happened to 328 the prosecutrix and he expressed ignorance. He later disappeared that same night. The matter was reported to the police where a medical report form was issued for the prosecutrix to be examined by a medical doctor. The medical examination revealed that the prosecutrix had been defiled. Later, the Appellant was arrested and charged with the subject offence. On his own plea of guilty and admission of the facts, the trial Magistrate convicted the Appellant and committed him to the High Court for sentence where he was, on the 7th February 2008, hahded a term of 40 years imprisonment with hard labour. As stated earlier, this appeal is against sentence. The only ground of appeal is that the learned trial Judge erred in law and fact when he sentenced the Appellant to 40 years imprisonment with hard labour. Counsel for the Appellant filed heads of argument on which he relied. Besides, he submitted orally in support of the only ground of appeal. There was no submission from the Respondent. 329 In his heads of argument and oral Submission, the Appellant’s Counsel contended that the sentence of 40 years was manifestly excessive so that it induced a sense of shock. The Appellant, being a first offender and having readily admitted the charge, was entitled to leniency, Counsel submitted. As far as he was concerned, the term of imprisonment imposed did not reflect any credit for the plea of guilty. He further submitted that the sentencing Court imposed a term of 40 years based on the age of the prosecutrix who was 3 years and ten months at the time of the: incident. Counsel submitted that to have carnal knowledge of a child below the age of 16 years was in itself an aggravating factor. However, it was wrong to begin to classify and impose sentences based on the age of the victim as this approach would result in disparities in sentences imposed by the Courts, he said. We have considered the submission in support of the ground of appeal. We have also considered the facts of the case reproduced above. We agree that as a first offender, who readily pleaded guilty to the charge, the Appellant was entitled to leniency. We 330 also agree that forty years imprisonment for defilement imposed on a first offender, who had not wasted the Court’s time, was excessive and comes to us with a great sense of shock. To that extent, we set aside the 40 years imprisonment and substitute it with a term of 25 years imprisonment with hard labour to run from the 18th October 2004, the date of his arrest. Before we conclude our judgment, we would like to comment on the issue canvassed by Counsel for the Appellant that basing sentence on the age of a victim;-as an aggravating factor, was wrong because it was likely to create disparities in our sentencing policy. The law, as enacted, is that the minimum sentence for defilement is fifteen years and the maximum is life sentence. The range in sentence means that the legislature has given the Courts the freedom to impose different sentences according to the facts of each case. An ordinary case of defilement will ordinarily attract the minimum sentence of 15 years imprisonment. However, in a case of defilement, where the accused is, for example, found to have infected the victim with a sexually transmitted disease (STD) the 331 offence will certainly attract a more severe sentence above the minimum sentence of 15 years. In the foregoing example, the aggravating factor is the transmission of STD to the victim and the trauma caused to her. Similarly, where the accused is found to have defiled an imbecile or an infant of very tender age (as was the case here), the aggravating factor will be the medical condition of the victim or the tender age of the victim and the sentence to be imposed will be above the minimum. We do not therefore-, profess that trial courts, even with these guidelines, will pass uniform sentences but that these ar&the factors they have to take into account if they are to impose sentences that meet the justice of each case. The examples abound and as we have already said the approach to be taken by Courts in each case will depend on the facts of that particular case. With the foregoing examples, the appeal against sentence is allowed to the extent that 40 years imprisonment is set aside and substituted with one for 25 years. E. L. Sakala CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE H, Chibomba SUPREME COURT JUDGE 7