Willy Chela v The People (SCZ APP 125 of 2014) [2014] ZMSC 245 (3 December 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ APP/NO. 125/2014 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: WILLY CHELLA AND THE PEOPLE APPELLANT RESPONDENT Coram: Phiri, Muyovwe and Malila, JJS On the 14th October, 2014 and 3rd December, 2014 For the Appellant: Ms. C. K. Rabende, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. M. M. Kawimbe, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT Muyovwe, JS, delivered the Judgment of the Court This is an appeal against the sentence only. The appellant was convicted by the Kitwe High Court of the offence of aggravated robbery contrary to Section 294(1) of the Penal Ji Code Cap 87 of the Laws of Zambia. The particulars of offence alleged that the appellant on the 8th of November, 2010 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic Zambia jointly and whilst acting together with other persons unknown and whilst being armed with offensive weapons did steal 1 DVD, 1 Radio Cassette, 2 cell phones and K34,000.00 cash altogether valued at K2,634,000.00 the properly of Jessy Muhango and at or immediately before or immediately after the time of such stealing did use or threatened to use actual violence to Jessy Muhango in order to obtain or retain or overcome resistance to its being stolen or retained. The evidence from the prosecution was that on the 8th November, 2010 the complainant and her family were attacked by a gang of six men who included the appellant between 1900 and 2000 hours. According to the prosecution witnesses, the appellant who was armed with a toy-gun was overpowered and apprehended within the house while his colleagues managed to escape. J2 The learned Judge rejec ted the defence raised by the appellant and convicted him and sentenced him to 20 years imprisonment with hard labour with effect from 20th November, 2010 the date of arrest. As stated earlier the appellant has appealed to this court against sentence only. At the hearing of this appeal on 14th October, 2014 Ms. Kabende indicated that she needed time to file Heads of Argument and she was granted 14 days within which to file the Heads of Argument. To-date no Heads of Argument have been filed and we have, therefore, decided to proceed to render our judgment in this appeal. We have considered the evidence in the court below and the judgment of the lower court. We have perused the record of appeal and we note that although the Notice of appeal was filed on 28th October, 2011 it has no grounds of appeal. Since there are no Heads of Argument, we assume nevertheless that the gist of the appeal before us is that the J3 sentence was excessive. In this case, the learned judge in passing sentence held the view that causing grievous harm to the victims of the aggravated robbery is an aggravating circumstance and did not therefore, agree with Counsel for the appellant that he deserved the minimum mandatory sentence. The learned Judge after considering all the evidence before her sentenced the appellant to 20 years imprisonment with hard labour with effect from 20th November, 2010 the date of arrest. We have considered the sentence by the lower Court and we do not find that it was wrong in principle. We take the view, looking at the circumstances of this case, that the learned Judge was on firm ground when she sentenced the appellant to 20 years imprisonment with hard labour from the date of arrest. The fact that this was a group attack on a family, some of whom suffered injuries and trauma could not be ignored and called for a sentence above the minimum sentence albeit the appellant being a first offender. J4 We find no plausible reason to interfere with the sentence of the lower Court. The appeal is dismissed accordingly. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE M. LA SUPREME COURT JUDGE J5