Senga v The people (Appeal 69 of 2008) [2009] ZMSC 2 (5 November 2009)
There were no factors militating against backdating the sentence; therefore, the sentence should be backdated to the date of arrest.
Source-derived case information.
- Citation
- [2009] ZMSC 2
- Parties
- Appellant: Avon Senga; Respondent: The People
- Court
- Supreme Court of Zambia
- Jurisdiction
- Zambia
- Case Number
- Appeal 69 of 2008
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal allowed
- Legal Topics
- Sentencing, Backdating of Sentence, Receiving Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Avon Senga
Appellant
The People
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence should be backdated to the date of arrest
- 2 Whether the trial judge erred in not backdating the sentence
Ratio Decidendi
There were no factors militating against backdating the sentence; therefore, the sentence should be backdated to the date of arrest.
Court Disposition
Appeal allowed
Orders
- Sentence backdated to 6th January, 2006, the date of arrest
Full Case Text
Judgment text and source record
1 paragraphs
IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA. (cid:9) SCZ APPEAL NO.69/08 L (Criminal Jurisdiction) BETWEEN: AVON SENGA AND THE PEOPLE APPELLANT RESPONDENT Coram: Mambilima,DCJ, Chitengi,JS and Mushabati, AJS On 7th October, 2008 and 5th November,2009. For the Appellant : Mr. A. C. Nkausu, Director, Legal Aid Board. For the Respondent :Mrs. R. N. Kuzwayo, Deputy Chief State Advocate. JUDGMENT Chitengi, JS, delivered the Judgment of the Court. When we heard this appeal Mr. Justice Mushabati was a member of the panel but retired before this judgment was ready. This Judgment is, therefore, the Judgment of the majority who heard the appeal. (cid:9) (cid:9) (cid:9) (cid:9) When we heard this appeal which was basically against sentence we allowed it and indicated that we shall give our reasons later. We now give the reasons. The facts of this case are that the Appellant who was arrested on 61h January 2006 was tried for aggravated robbery. After the close of the prosecution case, the learned trial Judge found that no case had been made out against the Appellant on the charge of aggravated robbery but found that the Appellant had a case to answer on the lesser charge of receiving stolen property and thereupon put the Appellant on his defence on the lesser charge. The Appellant pleaded guilty to the lesser charge of receiving stolen property and after the facts were read, and which facts the Appellant agreed with, the learned trial Judge convicted the Appellant and sentenced him to 6 years imprisonment with hard labour effective from the 16th January, 2008, the date on which he was convicted. Although there is no obligation on the trial Judge or Magistrate, the practice in Zambia is that the trial Judge or Magistrate has the dispensation to backdate the sentence, thereby taking into account the time the accused has been in custody awaiting trial. In this case, the learned trial Judge did not backdate the Appellant's sentence to the date he was taken into custody. On the facts of this case, we do not see any factors militating against the backdating of the Appellant's sentence. We accordingly allow the appeal and backdate the Appellant's sentence to 6th January, 2006 the date he was arrested. I. C. MAMBILIMA DEPUTY CHIEF JUDTICE ITENGI SUPREM L rOURT JUDGE N C. S. MUSHABATI (Retired) SUPREME COURT JUDGE