Taston Banda and Anor v People (SCZ 15 of 2001) [2003] ZMSC 158 (8 April 2003)

SCZ APPEAL NO. HJ/ 15 /2001 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: TASTON BANDA CHRISPINE WELUZANI MBEWE Vs. THE PEOPLE CORAM: CHIRWA, CHIBESAKUNDA AND SILOMBA, JJS. On the 20th day of August, 2002 and on the 8th day of April, 2003. For the Appellants: Captain Nanguzyambo, Director of Legal Aid. For the Respondent: Mrs. Shawa, Senior State Advocate, D. P. P.’s Chambers. JUDGMENT SILOMBA, JS. delivered the judgment of the Court Legislation referred to: Penal Code, Chapter 87 of the Laws of Zambia The appeal lies to this court against the judgment of the High Court of the 27lh of July, 2002 in which the appellants, Taston Banda and Chrispine J2 Weluzani Mbewe, were each convicted and sentenced to 12 years imprisonment with hard labour for attempted murder contrary to Section 215(a) of the Penal Code, Chapter 87 of the laws of Zambia. The particulars of the offence were that the two jointly and whilst acting together did, on the 20th day of September, 2000 in Chipata district of the Eastern Province of Zambia, attempt to murder Mr. Choomba Leonard Changala. The brief facts relevant to the appeal are that on the 20th of September, 2000 Mr. Choomba Leonard Changala (PW1 in the court below) had gone to Lundazi driving a National Breweries delivery truck from Chipata. After making his beer deliveries he decided to go back to Chipata; he passed Ndaiwala School and reached a bridge on a curve when he saw a person emerging from the bush. That was around 05.00 hours in the morning. The man went into the middle of the road and lifted his right hand up to signal to Mr. Changala to stop, while he held a gun in the other hand. Mr. Changala, who had his lights on, did not stop, prompting the man to shoot at him. In the process the windscreen of the truck was shattered and Mr. Changala suffered some cuts to his head caused by the flying broken glasses; some glass fragments entered his eyes also. Notwithstanding the injuries to his head and eyes he continued driving until he reached Chipata where he reported the incident to the police. The further evidence of the prosecution was that on the morning of the shooting incident Mr. Bwezelani Phiri (PW2) had left his home very early in the morning to go and fetch firewood. He proceeded to the Lundazi - Chipata road where he saw two boys standing at a distance of 35 meters away. After fetching firewood and as he was returning to his house he heard the voice of the first appellant calling him from behind. PW2 asked the first appellant, who was the son of his elder brother, Zazachabe Banda, why he was moving J3 at night. In response the first appellant told PW2 that there was an issue he wanted to discuss with him on condition that he kept it secret. When the first appellant was assured by PW2 that he would keep the secret to himself he called out for his friend whom PW2 came to recognise as Chrispine Mwale, also known by his old name as Weluzani Mbewe, the second appellant. The first appellant then ordered his friend, the second appellant, to go and fetch the gun from where he had been hiding since PW2 was their father who could not be feared. Incidentally, PW2 was also related to the second appellant who was the son of his grandfather, Chikamata Mbewe. When the gun was finally produced the first appellant revealed to PW2 that their mission was to attack the National Breweries tanker in order to obtain money. PW2 then volunteered to keep the gun, a shotgun of the greener make, which he kept in his house. The two appellants promised to come back to PW2’s house on the 23rd of October, 2000 to collect the gun. In the meantime PW2 met police officers who were patrolling the area using the National Breweries delivery truck to whom he made a report. Later, the police came to the house of PW2 in the company of the two appellants and retrieved the gun. These were the undisputed facts of the case in the court below and when the appeal came up for determination the appellants correctly decided not to contest their conviction. Instead, their appeal was against sentence only; they pleaded with the court to revisit the sentence with a view to reducing it. Captain Nanguzyambo, the appellant’s learned counsel, thought that a sentence of 12 years, slapped on each of the appellants, could not be perceived by the court with a sense of shock. He nevertheless invited us to revisit the sentence since at the time of the commission of the offence the appellants were only 22 years old. He stated that in the past the court had revisited sentences of over ten years in J4 manslaughter cases and these had been reduced to ten years or less. On comparative basis he thought that a sentence of 12 years on a charge of attempted murder was harsh. Since the appeal was against sentence the learned Senior State Advocate did not have anything to say in response. We have gone through the record of appeal, which shows that at the time the appellants were being sentenced their ages were 22 years and 26 years respectively. They were both married. Although it is not clear why the age-element was brought in by the appellants’ counsel, we would shudder at any suggestion that their “tender ages” be considered as an extenuating circumstance. We shudder because under Section 201 (l)(b) of the Penal Code, Chapter 87 of the laws, an extenuating circumstance is taken into account in sentencing only in murder cases. There was no authority given for the proposition that this court has intervened in manslaughter cases where sentences imposed by the lower court have been in excess of 10 years. We can only say that if there has been any intervention then that has been necessitated by the facts of each appeal case. We do not think that counsel was in order to compare or to equate this case to a manslaughter case to justify his conclusion that the sentence of 12 years for attempted murder was harsh. First of all, the felonies of manslaughter and attempted murder are incomparable in terms of the ingredients that must be proved. For example, on a charge of manslaughter the law in Section 199 of the Penal Code does not require proof of mens rea or the criminal intent but the unlawful act that leads to the death of someone. In the context of this appeal we would say that the crime committed by the two appellants was grave in that it involved the use of a firearm. The clear criminal intention of the appellants was to shoot to kill the driver of the National Breweries delivery truck so that they could have free access to the J5 money the driver had raised after the sale of the beer on his errand to Lundazi. From the facts the driver escaped death by sheer luck. For the reasons afore-stated we do not think that we would be justified in interfering with the sentence imposed by the lower court as doing so would not be based on sound sentencing principles. The appeal is accordingly dismissed. D. K. Chirwa, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGET. SUPREME COURT JUDGE.