Mulonga v People (Appeal 111 of 2015) [2015] ZMSC 70 (3 November 2015)

IN THE SUPREME COURT OF ZAMBIA HOLDEN I.\T LUSAKA (Criminal Vurisdiction) APPEALNO. 111{2015 BETWEEN: I TUKOSE MULONGA AND THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Hamaundu, JJS On the 6th October, 2015 and 3" November, 2015 For the A1pellant: Ms. K. M. Simfukwe, Senior Legal Aid I Counsel For the Rfspondent: Ms. C. Soko, State Advocate JUDGMENT MUYOVWEl JS, delivered the Judgment of the Court Cases referred to: I , 1. Kaambo vs. The People SCZJudgment No. 20 of 1976 2. Ngunl vs. The People SCZ Judgment No. 18 of 1976 LegiSlatioJ referred to: 1. Sect~on6 of the Narcotic Drugs and Psychotropic Substances Act Chap:ter 96 of the Laws of Zambia as read with Statutory Instrument No. 119 of 1995. 2. Section 217 of the Criminal Procedure Code Cap 88 of the Laws of l. Zam la b J1 The appellant was charged with the offence of trafficking in psychotro ic substances contrary to Section 6 of the Narcotic Drugs and Psychotropic Substances Act Chapter 96 of the Laws of Zambia. The particulars of the offence alleged that on 7th March, 2013 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, the appellant did traffic a psychotropic sUbstanc, namely 22.7 grams of marijuana a herbal product of cannabis sativa without lawful authority. During trial before the Kitwe Subordinate Court, the appellant ldmitted the charge and was convicted on admission of the facts that he was found in possession of 22.7 grams of marijuan", Evidence of a previous conviction was laid before the trial clurt and the record shows that the appellant had earlier been con I.cted of a similar offence and was sentenced to three months community service under the supervision of the Clerk of Court at ttwe Subordinate Court. However, it was discovered that the a1pellant only worked for three days and disappeared. As the appellant was a second offender, the learned trial magistrate Zambia. I I committed the case to the High Court for sentencing in terms of Section 217 of the Criminal Procedure Code Cap 88 of the Laws of Before the High Court, the sentencing judge took into account Section 44 of the Act which provides for a sentence of imprisonrJent for a term of not less than 10 years for a second offender. The learned judge also took into consideration the quantity of the substance involved and sentenced the appellant to 15 years iLprisonment with hard labour. The appellant has appealed against sentence only. On ehalf of the appellant, Ms. Simfukwe advanced one ground of appeal in the following terms: The court below erred in law and ii fact when it imposed an excessive sentence of 15 years wheL there were no aggravating circumstances to justify the impojition of such a harsh sentence and the fact that he pleaded glilty. Ms. imfukwe relied entirely on her heads of argument filed herein. S e submitted, inter alia, that the sentence imposed on J3 the appellant for drug trafficking involving 22.7 grams was excessive and should be replaced with a sentence commensurate to the crime committed. She relied on the case of Kaambo vs. The I People' where we stated that: "The basis of the decision must always be the proper sent~nce merited by the offence itself and it is only after this I has been determined that the court can consider, whether the person is entitled to leniency." Learned Counsel argued that the quantity of marijuana was not an a1gravating factor in this case and that, therefore, the proper sentence should have been the statutory minimum of 10 years for la second offender. She submitted that the appellant pleaded Jilty to the offence and that this should have been taken Into account In arnvIng at an appropnate sentence. Sh e . . buttressed her argument with the case of Nguni vs. The People' I... I I in which Baron DCJ stated that: I "The learned judge had no regard whatever to the fact that the appellant pleaded guilty; we are of the view that notwithstanding that an accused person by reason of his record has forfeited any claim to leniency the sentencing cour~ should exercise some degree of leniency where ther~has been a plea of guilty." I Learned Counsel submitted that in view of the two factors that weJ highlighted, this court should set aside the sentence imposed lnd replace it with a less severe sentence. In response, Ms. Soko the learned State Advocate agreed with her learnld friend's submission that the sentence was excessive ho~ug ret'd " <hequouhf, of"", ,u b,rou" ;U"o1"0<1 We have considered the submissions by learned Counsel for the partiJ. We have also perused the record of appeal. Ms. oko has rightly conceded that this appeal has merit in that the quantity of substance involved is only 22.7 grams. Lookinga the record, it is clear that the learned sentencing judge had this .n mind when imposing the sentence. We can only conclude that, perhaps, he was influenced by the fact that the appellant ad not served his three months community service in full for his earlier conviction on a similar offence. As we alluded to this aspec~ of the proceedings during the hearing of the appeal, the earlier prosecution was a separate case and the fact that the appellant ~id not serve his sentence was a matter for the trial court in lhat particular cause. The Clerk of Court as the J5 .. authorized officer in terms of Section 306C should have brought it to the attention of the trial court that the appellant had failed to comply with the rJquirements of the community service order. The trial court would hav! dealt wIth the appellant in terms of Section 3060 of the I . Criminal Procedure Code. Retuining to the issue of sentence in this appeal, we are of the view that fue sentence imposed was excessive for a first offender who pleaded Jilty and also having regard to the quantity of marijuana I involved. The leamed judge should have kept these important factors in I mind and e would have imposed an appropriate sentence. For reasons given herein, we set aside the sentence of 15 years and instead we impose th minimum sentence of 10 years imprisonment with hard labour with effect from the date of arrest. APpeL against sentence allowed. G. S.'1>HIRI SUPREME COURT JUDGE ....... ...........•.................• E. N. C. MUYOVWE SUPREME COURT JUDGE ................... E. M. HAMAUNDU SUPREME COURT JUDGE 16