Nkole & Others v The People (230 of 2017; 231 of 2017; 232 of 2017) [2019] ZMSC 98 (13 March 2019)

.. t •• " - Selected Judgment No . 8 of 2019 P. 276 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Crim in a l Juri sdicti on ) Ap peal No . 23 0 , 231 , 2 32 /2 01 7 BETWEEN : DARIUS CHANDA NKO FRANCIS KALUBA ZANTA KABANGABANGA AND THE PEOPLE 2nd APPELLANT 3rd APPELLANT RESPONDENT Coram: Phiri , Muyovwe and Chinyama , JJS on 5 th March , 2019 and 13th March , 2019 . Fo r t h e App ellan t: Mr. K. Mu ze n ga , Depu ty Dir ec tor, Lega l Aid Bo a rd Fo r th e Res p ond en t: Mr s . M. Chipant a -Mwan s a, Depu ty Chi ef St a t e Advoca t e , Na tion al Pro sec u tion s Aut h ori ty JUDGMENT MUYOVWE, JS , delivered the Judgment of the Court Cases referred to : 1. The Minister of Home Affairs , The Attorney Gene ral vs . Lee Habasonda (2007) Z. R. 207 suing on His Own Behalf and on behalf of $ACCORD 2. Muyund a Muziba and Another vs. The People , Se lected Judgment No. 29 of 2012 J1 •• P.277 ( 1982) Z. R. 115 3. Muvuma Kambanja Situna vs . The People ( 1976) Z. R. 11 4 . Alubisho vs. The People 5. Joseph Mulenga and Another vs. The People Appeal No . 128/2017 6 . Jutronich 7. Miloslav vs. The People SCZ Appeal No. 49/2013 8 . Roberson Kalonga vs. The People (1988 9. Mugala vs. The People and Others vs. The People (1975) Z. R . 282 - 1989) Z. R . 90 (1965) Z. R. 9 Statutes referred to 1. Sect ion 294(2) (b) of the Penal Code , Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code , Chapter 88 of the Laws of Zambia 3 . Article 18 of the Constitution of Zambia The appellants were convicte d of the offence of aggravated robbery and sentenced to life imp risonment. Th e facts revea led that on t h e 19th August, 2014 around 23 :00 hours the complainant PW l was walking back home after selling chicken p ieces at a bar. She h ad raised Kl50 from her sales and she had a Nokia phone. As she proceeded h ome , she found the appellants outside another bar. Th ey blocked her way, took her phone an d money, lift ed he r and dragged h er to an unoccupied house where the 1 st appe llant str ipped her naked. The appellants took tu rns in raping her starting with the 1 st appellant. Th is went on for abo u t an ho u r and a h alf. Th e trio were dist u rbed by noise J2 \ \ • .. P.278 from some passersby and the 2nd and 3r ct appellants ran away leaving the 1 st appellant who still wanted to continue sexually assaulting the complainant . As the two struggled, the complainant managed to grab a brick which she used to hit the 1 st appellant on his forehead and she ran to her grandmother's house where she reported the incident. According to the complainant, the 1 st appellant could be heard shouting profanities and threats against her as he passed her grandmother's house after the ordeal that very night. There was evidence that the appellants were tried for the offence of rape in the Subordinate Court. In cross-examination the complainant conceded that the 2nd appellant was her boyfriend but she insisted that he ganged up with his friends to rape her. She also denied that she was drunk on the night in question . The matter was reported to the police and this led to the apprehension of the appellants. The 2nd appellant was apprehended after he was spotted by the complainant at a shopping centre. She alerted PW4 a member of the neighbourhood watch and together with the complainant they all proceeded to the police station where the 2nd appellant was detained. PW4 's version was J3 • P.279 that he knew the 2nct appellant and he called out to him and as the complainant was nearby, together they went to the police station where he was detained . And this evidence tallies with that of PW3 (the mother to the complainant). The evidence of PW5 was that the police requested him to accompany them as the appellants led them to the scene of crime. He stated that the appellants were in front while the police officers were behind . Th e comp lainan t was present at the time . Th ere was evidence from PW6 , the scenes of crime officer, that the a pp ellants led the polic e to the scene of crime. Th at th ey admitted to rapin g the victim but denied st ea ling an ything from h er. That the 1 st app ellant and 3rct appellant wer e on th e run and were appr eh end ed mu ch lat er. All the appellants d enied h av in g robb ed and r a ped the complainant. Th ey also d eni ed leading the polic e to the sc en e of crime. However, the 1 st appe llant admitted that he had injured his nos e although his explanation was th a t it was due to a fall from a bicycle. According to th e 1 s t appellant, on the material d ay the ... \ ' P.280 complainant went to his house looking for the 2 nd appellant. He called him and the two went outside to discuss some issues. He stated that he discouraged the 2 nd appellant from dating the complainant as she was older than him and she was a drunkard. The 2n d appellant claimed that he was in a relationship with the complainant and her parents wanted him to marry her but he felt he was too young. He denied going to the 1 s t appellant 's house as alleged by the 1 st appe llant. He completely denied participating in raping the complainant . According to the 2 nd appellant , he could not steal a phon e from the comp lainant as he had bought her one earlier . The 3 rd appe llan t stat ed that he was apprehended by the police at a bar. That he was identified by the complainant after she saw him at the CID office. It was his evidence that he was implicated in this matter by the police due to his drunkenness. In her judgment , the learned judge, as we will show later in our judgment , hastily concluded that th e appellants work ed in JS \ ' P. 281 collusion when they stole from the victim and raped her. All three appellants were found guilty and sentenced to life imprisonment. Dissatisfied with the decision of the lower court, the appe llants appealed to this court against conviction and sentence. The learned Deputy Director , on beha lf of the appellants, advanced three grounds of appeal couched in the following terms: 1. The learned when she aggravated reasonable doubt . trial judge misdirected convicted robbery appellants the absence the in herself in law and in fact of all offence of proof beyond the for 2. The learned trial judge misdirected in law when she delivered a judgment which set out in Section 169(1) of the Criminal Procedur e Code Chapter 88 of the Laws of Zambia of an opportunity thereby depriving to property appeal against herself fell short of the standard the appellants it . 3. The learned trial court erred in law and imposed so doing . the maximum sentence without in fact when giving reasons she for At the hearing of the appeal, Mr. Muzenga the learned Deputy Director relied ent irely on his filed heads of argument. In ground one, he contended that there does not appear to be any concrete evidence that the complainant was robbed of her cell phone and JG \ ' P. 282 K150 cash. Counsel pointed out that the complainant's evidence was full of contradictions: she de n ied du ring cross-examination that the 2 nd appellant was her boyfrien d but later conceded to the fact; she did not report the robbery to the first person she encountered and she told her mot h er that she lost money and trays during the rape. In view of these alleged inco n sistencies in th e comp lainant 's evidence, Counse l argued that t h e credibi lity of the complainant was brought into question. On the totality of the evidence, Counsel opined that the prosecution fai led to discharge its burden of proof beyond reasonab le doubt that the items mentioned in the particulars of the offence were sto len. On this ground alone, Counsel urged us to al low the a p peal. Ground two attacked the ju dgment of the trial court on the basis that it did not meet the stan d ard set out in Section 169( 1) of the Criminal Procedure Code, Cap 88 of the Laws of Zambia . In the words of learned Counse l, what the trial court delivered was no j udgment at a ll . Counsel's argument is th at in her five paged j u dgment, the learned trial jud ge concentrated m ainly on the evidence of the comp lainant an d h ar dly considered the evidence of J7 \. P . 283 the other prosecution witnesses and of the three appe llants . It was submitted that reading the judgment, it is difficu lt to determine how the learned tria l judge arrived at her decision to convict the appellants. Counse l found so lace in the cases of The Minister of Home Affairs , The Attorney General vs . Lee Habasonda suing on His own Behalf and on behalf of SACCO RD ; 1 Muyunda Muziba and Another vs. The People 2 and Muvuma Kambanja Situna vs . The People. It was submitted that ordinari ly, a retria l wou ld be the appropr iate mode in such a scenario. It was noted, however , that in the case in casu four years has passed since the appe llants were incarcerated and the evidence in the court below being shaky and looking at the fact that the trial court made no findings of fact, the proper course h ere is to acquit the appe llants in the interest of justice. Therefore , Counsel contended that a retrial is inappropriate in this case. Turning to ground three which is on sentence, it was submitted that the sentence of life imprisonment was man ifestly JS P. 284 excessive in view of the value of the items stolen and in the light of the fact that the appellants were first offenders. The main issue is that the trial judge did not give any reason for meting out such a harsh sentence. We were referred to the case of Alubisho vs. The People 4 in which we gave guidance to appellate courts when dealing with appeals against sentence. It was submitted that it was a serious misdirect ion for the trial court to simply pronounce the sentence and that the ap p eal agai n st sentence should be allowed and that the sentence of life shou ld be set aside and a fairer sentence imposed. At the hearing of the appeal , Mr. Mu zenga 1n his argumentation added another d imension to ground one. His argument is that there were no threats or actual violence to the comp lainant before the purported taking of the items mentioned in the information. Counsel submitted that since the 2n d appellant was PW l 's boyfriend , th ere was no threat of violence throughout the taking. He conceded that there was evidence that the 1 st appellant grabbed the phone from PWl. Mr. Mu zenga J9 \ \ .. P.286 are disputed. She argued that since PW 1 's evidence on the robbery was not challenged, it follows that this evidence was undisputed. Mrs. Mwansa insisted that a robbery took p lace in which a phone and K 150 cash were sto len and that the offence of aggravated robbery was proved and the appellants were properly convicted. Ground one shou ld fai l, she argued. In responding to ground two, it was submitted that the appellants were ab le to comprehend the lower court's judgment hence the appeal before us. Whi le conceding that Section 169 ( 1) of the Criminal Procedure Code provides a model of what a judgment must contain, Counsel submitted that the appellants were not denied of any right to appeal the decision of the lower court. Responding to the issue of credibility raised by her learned friend , Mrs . M wansa argued that the issue was not raised in the court below. In support of her argument, she cited the case of Muyunda Muziba and S itali Ilutumbi vs. The People 2 (also cited by Mr. Muzenga). According to Mrs. Mwansa, in the Muyunda Jll ' \ P.287 Muziba case we guided that when issues of credibility arise , the reasons which usually underpin credibi lit y include, poor visibility , fleeting glimpse and poor evidence of identification. Counsel contended that none of these issues were raised in the court below for the issue of credibility to arise . She vigorously defended the judgment of the lower court that , although short , it discloses that the learned trial judge had analysed the evidence and facts and that her learned friend conceded this when he stated thus in his submission: "what purports to be an analysis and findings of th e trial court ... . " Counsel contended that the length of the judgment is immaterial as the substance is what matters. Counsel agreed with h er learned friend that a retrial at this stage wou ld be unfair to the appellants and prejudicial to the State. That it is not in the interest of justice to send the matter for retrial. It was submitted that a court properly directing itself under Section 169( 1) of the Criminal Procedure Code would have found the appellants guilty. J12 P.288 In the alternative, should we be persuaded by Mr. Muzenga 's arguments , we were invited to evaluate the evidence before the trial court and arrive at an independent opinion. Mrs. Mwansa contended that the prosecution having discharged its duty of proving the case beyond reasonable doubt, the failure by the trial court to analyse the evidence, should not result in the acquittal of the appellants in the midst of the over whelming evidence on record . In the words of Counsel , the guilt of the appellants cannot and should not be absolved by a judgment found wanting in structure. Counsel relied on the case of Muyunda to buttress her argument in which we stated that where the judgment of a trial court is poor or goes missing, this will not lead to an acquittal. We were invited to categorise the judgment appeal ed against as a poor judgment, evaluate the evidence in its totality and confirm the conviction of the trial court. Coming to ground three , Counsel for the State conceded that the learned judge did not give reasons when she meted out the sentence of life imprisonment. Counsel submitted that the J13 P.289 sentence imposed by the learned judge was not excessive as Section 294 (2) (b) of the Penal Code provides that death is the appropriate sentence where there is grievous harm. It was submitted that grievous harm was occasioned to the victim in this case as she was rap ed by the appe llants causing her to bleed from the anus and h er private part. It was contended that the rape exposed her to sexually transmitted diseases thereby endangering her health . It was Counse l's submission that the s entenc e of life imprisonment is inappropriate under the circumstances as the appellants should h ave been sentenced to death. Counsel ref erred us to the case of Alubisho vs. The People . We were urged to tamper with the sentence and substitute it with the sentence of death so that it is r eflective of the gravity of the offence the appellants committed. In augmenting ground one , Mrs. Mwansa submitted that the pros ec ution proved theft which was accompanied by force . She al luded to the evidence of PW 1 who stated that h er phone and money were grabbed from her. Mrs. Mwansa submitted that PWl 's evidence indicates the use of force during the co mmission of the offence. Counsel submitted that this case fell within the ambit of J14 P.290 Section 294 (1) as it is clear that violence was used before, during and after the commission of the offence. She opined that the offence of aggravated robbery was proved to the required standard . In her brief augmentation relating to ground three, Mrs. Mwansa argued that the manner in which the offence was committed is one which dictates the sentence of death rather than life imprisonment. She submitted that in the case of Miloslav vs. The People 7 this court did not shy away from tampering with the sentence upwards. Relying on Section 4 of the Penal Code , Mrs. Mwansa argued that PWl was raped by three men without protection, who took turns to rape her and her health was likely to be endangered as she could have contracted HIV. She implored us to critically look at the circumstan ces of this case and consider the grievous harm done to PW 1. In his reply in relation to ground three, Mr. Muzenga argued that the death sentence advocated by Mrs. Mwansa is untenable at law . He submitted that the app ellants were not charged under Section 294 (2) and the particu lars never alleged that grievous harm JlS I P.291 was occasioned . He referred us to the case of Roberson Kalonga vs. The People 8 wh ich, in his view, is instructive on the issue at hand. Fu rther, he pointed out that the medica l report 1s inadequate as it did not re late to the ch arge of aggravated robbery but to the offence of rape which was a separate felony. Mr. Muzenga's argument is that PWl was not injured during the robbery. However, in the same breath, Mr . Muzenga submitted that the appellants shou ld have been tried by one court, namely the High Court, to avoid contravening Article 18 of the Constitution . That this court shou ld advise the State that in cases of this nature the culprits must be prosecuted before one court. He submitted that the appe llants were convicted and sentenced to 25 years imprisonment for rape and if they appealed against that sentence , there would be confusion. He strongly urged us to reduce the life sentence and order the sentences to run concurrently as they were a series of offences committed at t h e same time . J16 P. 292 We have considered the arguments by Counsel. The issue for our det er mination in ground one is whether the learned trial judge was on firm ground when she convicted th e appe llants of the offence of aggravated robbery. In ground two, we must determine whether the judgm ent of the lower court meets the threshold set under Section 169 (1) of the Criminal Procedure Code. We will deal with the two grounds together. Mr. Muzenga has strong ly argued that since the judgment of the low er co urt is irr epara bl e, we must ac quit the appe llants rath er than send the case b ack to the High Court for retrial. Mrs . Mwans a h as strongly opposed this position and has urg ed us to uphold the conv ict ion on t h e gr ound that the evidence against the appe llants was overwhelming. Section 169(1) of the Criminal Procedure Code provides that: provided in every trial in any court shall, except as otherwise The judgment expressly officer determination, decision, in open court at the time of pronouncing by court and the decision this Code , be prepared by the point the shall contain thereon and shall be dated and signed by the presiding the presiding or points for for the officer reasons of the and it. J17 P. 293 Further , in the celebrated case of The Minister of Home Affairs , The Attorney General vs. Lee Habasonda Suing on His own behalf and on behalf of the Southern African Centre for The Constructive Resolution of Disputes (SACCORD) this court had occasion to give guide lines on j u dgrnent writing . It was held , int er alia, that: Every applicable, findings application judgment must reveal a review of the evidence a summary of the arguments and submissions of fact , the reasoning of the court on the of the law and authorities if any, to the facts. , where , if made , facts and the And in the case of Muvuma Kambanja Situna vs. The People we h e ld that : Judgment consideration placed before merited. of the trial court must show on its face to all relevant material has been given it , otherwise an acquittal may result where that adequate that has been it is not In th e case 1n cas u , a total of seven witn esses were call ed by the prosecution while the appellants gave their evidence on oath . Th e learned tr ial judge in her summary of evidence, concentrated much on the evidence of PWl , th e vict im of the attack and touched on ly on th e evidence of PW2 and PW3. Sh e summed up the Jl8 . ' appe llants ' defence 1n six lines. Then the learned trial judge cont in u ed : P. 294 considered in question the evidence "I have carefully considered date raping her, money amounting admitted testimony on record and I am of the v iew that all the 3 accused persons were together on the PWl, by brutally the complainant stealing her In fact A2 in his injuring her in the process and forcefully giving PWl a sumsang mobile phone worth K350.00 before court . plus her mobile phone. and attacked to KlS0.00 together with the money amounting convinced violence components I am therefore phone using actual necessary contrary of Zambia , have been met hence guilty and accordingly (underlinin to PWl. of to Section 294(1)of g our s ) convict that the accused persons I am therefore the said stole to KlS0 .00 from PWl by that the robbery , the the Penal Code , Chapter 87 of the Laws I find each of the accused persons each of them with the said offence. " satisfied of aggravated offence Although th e learned judge stated that she had "carefull y conside r ed" the evidence on record , a read ing of the two paragraphs above do not reveal t h at she d id so. The bri ef judgm ent is d evoid of th e fa cts which convinced the lear n ed trial judge into arriving at the conclusion that it was the ap p ellant s wh o ro bb ed PW 1. In ou r view, th e lear n ed tr ial judge m ere ly jumped to the co n clu sion that it was ~ the appellants who committed th e offence - a conclusio n which <51.uL_ - formed im m ediate ly after purported ly caref ull y consider ing th e J19 P.295 evidence on record. Contrary to Mrs. Mwansa's argument, the judgment appealed against is not only wanting in structure but in substance as well. The issue here is that where a trial court fails to write a judgment to the required standard thereby rendering it "a purported judgment", as the appellate court we are now compelled to do the work of the trial court which is unacceptable. In this case, the learned trial judge abdicated her duty by failing to analyse the evidence placed before her by the prosecution and the defence. As pointed out by Mr. Muzenga, the five paged judgment focused mainly on PWl 's evidence without considering the evidence of the other six witnesses and the evidence of the appellants was covered in six lines. The judgment appealed against reveals a lack of seriousness on the part of the trial judge and the result is this appeal which may have been avoided had the learned trial judge applied her mind to the task before her. We do not hesitate to agree with Mr. Muzenga that the judgment definitely fell short of the standard prescribed under Section ( 1) of the Criminal Procedure Code. We do not, however, agree with Mr. Muzenga that the appellants were deprived of an opportunity to properly appeal J20 .. P.296 against the judgmen t of the lower court. The record speaks for itself and the fact that the appeal is before us is a clear indication that the appellants have not been prejudiced in the manner suggested by Mr. Muzenga. Ground two succeeds only to the extent that we agree that the judgment fell below the required standard. The matter does not however, end here. In the case of Muvuma Kambanja Situna vs. The People we did state that a defective judgment may result in an acquittal where it is not merited. In the appeal before us, the learned Deputy Director strongly argued that should we agree with him that the jud gment of the lower court fell below the required standard, then the appellants shou ld be acquitted rather than send the matter back to the High Court for retrial. The State also agreed that the ends of justice wou ld not be achieved by sending the case for retrial as the appellants have been in custody for over four years and that the prosecution wou ld face insurmountable hurdles in starting the trial all over again. J21 •. L . P. 297 Both Cou nsel cited the case of Muyunda Muziba and Sitali Ilutumbi vs. The People where the reco rd of a p peal was comp lete save for the judg m ent of the trial cour t which went missing for unex pl ained reasons. In t h e sai d case, we stated thus: failure which deprives "Where a judgment will be nothing considered this merits of the case. This, when appeal (Italics ours) the judgment , the appeal must of the trial court goes missing, there to show , on its face that the trial court adequately technically all the relevant material the appellate in no way, should be taken court that was placed before it. from assessing It is the to mean that is poor or goes missing on and the appellant be acquitted ." of a trial court succeed As pointed ou t by Mrs. Mwansa, in the present case we are dealing with a poor judgment and thi s can n ot lead to the acquittal of the appe llants unl ess th e evide n ce in the co u rt b elow di d not prove the offence of aggravated ro bbery. In other words, aside from the poor j ud gment, was the offence of aggravated robbery prove d beyond reaso n ab le d oubt? Mr. Mu zenga qu estioned wh et h er PWl was rob b ed or she merely lost her ite m s during the sc u ffle. His argu m ent , is that there was no vio lence co n nected to th e taking of the pr op erty. This is J22 w I what PWl had to say in her evidence (and we alluded to this evid ence during the h ear ing of the appeal): P.298 They were I fell down, to pass but they blocked me, I tried "I wanted to go on the other side , again they blocked me. Then they stripped me, Chanda Nkole I wrestled with all 3 men as they held in particular when insulting me and telling me not to me on both sides. I had . I had a phone make noise . They asked me to show them what I had a with me and KlSO realised nokia phone in the said phone at K90. They grabbed my phone colour. and K150. Then in my mouth ... " from the selling of chickens. it but mainly white 1100 with red lines around handkerchief and put I bought they got it The above portion of PWl 's evid ence has violence written all over it and we refuse to be dr awn into Mr. Muzenga's leg al gymnastics. Section 294 (1) of the Penal Code provides that: being armed with any offensive weapon or and , at or immediately together with one person steals the to any to obtain or retain the thing stolen or to prevent to use actual violence before or immediately or more, it, uses or threatens after or being Any person who, instrument, anything, time of stealing person or property or overcome resistance the felony of aggravated to its being stolen or retained , is guilty of robbery .. . Further, in Mugala vs. The People 9 we held that to prove a charg e of aggravate d robb ery it is n ecessary for the prosecution to show th at the vio lence was used in ord er to obtai n or retain the thing stol en . J23 P.299 While it is tru e that PWl at first d enied that the 2 nd appellant was her boyfriend , this is not suffici ent r ea son for us to discount h er whole evid en ce which taken holistically shows that she was ind ee d robbed by the three appellants. We do not agree with Mr. Mu ze n ga that her credibi lity was questionable on this aspect. The app ellants knew PWl and they had been drinking at the bar where she had been selling chicken piec es that eve ning . Th e three perpetrators jointly and whilst acting together waylaid her as she proceeded hom e , stole from h er in violent circumstan ces. Mr. Mu zen ga's a rgum ent that PWl 's story could not hold water b eca us e she was the 2n d appellant's girlfriend 1s untenabl e . The cir cum stances clearly show th at th e 2 nd appellant ganged up with his co -acc us ed to rob and rape the victim for re aso ns best known to hims elf. That PW 1 was traumatised by the whole ordeal can not b e doubt ed. Sh e was a vict im of gender based violence whi ch is a violation of on e's human rights. Her di gnity as a woman and as a person was tak en away from h er in a violent and d egr a din g mann er by thr ee m en who were known to h er. And th ey took turn s in raping h er a nd yet Mr. Muz enga argued that there was no vio lence J24 P. 300 in this case - in fact , he questions that a robbery took place simpl y because PWl magnified the rape over the robbery . In our view , PW 1 as the victim chose to magn ify the ab u se and violation to her person more than the loss of a phone and money which are recoverab le. This sh ou ld not be he ld against her. PWl the victim in this case can never recover the damage and loss of her dignity - no doubt she will carry th e shame to her grave. Mr. Muzenga under this limb , also argued that there was no medical report in relation to the aggravated robb ery . Counsel co nceded in the end that the offences committed within these set of facts constituted a series of offences . It is not in dispute that the medical report produced during trial was in relation to the offence of rape. However, it is clear as we shal l discuss this with in this jud gment that th e two offences cou ld not be separated as they occurred at the same time. In any case, there is no law which requires t h at to prove aggravated robbery, a medical report must be produced. Therefore , Mr. Muzenga's argument cannot be sustained. J25 P.301 We hold that there was violence before, during and after the taking of the property from PW 1, and that she was raped in the process. We find that the learned judge properly directing her mind would still have found that the offence of aggravated robbery was proved beyond reasonable doubt . Turning to ground three, the issue is that the learned trial judge gave no reasons for imposing the maximum sentence which is life imprisonment. Our immediate reaction is that we agree with Mr. Muzenga. We have already stated within this judgment that a trial court must give reasons for its decisions and this was no exception. Before we go any further we wish to consider the invitation by Mrs. Mwansa that in view of the grievous harm caused to the victim in this case, we should use our discretion and substitute the life sentence with that of the ultimate death penalty. She relied on the provisions of Section 294 (2) (b) which prescribes the death penalty wh ere grievous harm is done to any person in the course of commission of the offence. We have considered the argum ent by J26 .! P. 302 Coun se l for th e Sta te . At this s tage , we are inclin e d t o ag re e with Mr. Muzenga that Mrs. Mwansa 's invit a tion is unt en a ble at law m or e so th at th e appellants were not ch ar ged und er Sec tion 294 (2 )(b). Furth er , we h eld in Roberson Ka longa vs . The People (cit ed by Mr. Muz en ga ) that an acc us ed person must b e inform ed that h e s ta nds ch arge d with that p ar ti cular offen ce espe cially th a t we ar e b ein g call ed upon to int erfer e with a low er s ent en ce . Mrs . Mwansa 's relian ce on our de cision in Miloslav vs. The Pe ople ca nnot a ssist h er a s it r ela ted to the offen ce of ind ece n t assa ult wh ere th e app ellant wa s sent en ce d to 15 year s imp r isonm en t whi ch we co n sid ered to b e wr on g in p r in cipl e. We felt in that ca se th a t th e sent enc e wa s inad equ a t e h av in g r egar d to th e fac t th at th e a pp ellant was the emplo ye r t o th e victim and we took th e view th a t h e a bu se d h er b eca us e of th e au thori ty h e wield ed ove r h er. We enh a n ce d th e s ent en ce t o 2 0 years impris on me nt. We take th e view t h a t Mr s . Mwans a 's submissi on is in fact a r emind er to th e pros ec ution th a t th ey h ave a rol e to pl ay wh en it J27 ;f P. 303 comes to sentence of an accused. It is a fact that in our courts, almost every case , if not in every case , the State always informs the trial court (as it did in this case) that "there is nothing known " against the accused and ends there. It appears to us that in our jurisdiction when it comes to sentenc ing, the prosecution is a mere spectator. Th e tria l court at sentenc ing stage (or even the appellate court in appropriate cases) is left at large without any input from the State. Perhaps time has come , for the State in appropriate cases to p lay its role through Section 302 of the Criminal Procedure Code which states that: The court ma y, before passing as to fit , thinks proper to be passed. in order it sentence , receive inform itself as to such the evidence sentence We are aware that in other jurisdictions after convi ction , before passing sentence, the court ho lds a sentencing session where it receives evidence fro m the prosecution and the defence. This includes evidence of the serio u sn ess of the offence , the previous conv ictions if any , re levant reports , evidence from the victim 's family , mitigat ion and so on. In so m e jurisdictions the sentencing session can take days depending on the circumstances. The law is J28 ..) P.304 already on our books and should be used as this will help courts to impose well informed .sentences with a holistic approach . We urge the State to take advantage of Section 302 in appropriate cases. In view of what we have stated, Mrs. Mwansa 's argument cannot succeed. Under this ground , Mr. Muzenga complained that the sentence was excessive in view of the fact that the appellants were first offenders and the value of the items stolen was quite minimal. In his augmentation at the hearing of the appeal, the learned Deputy Director added another dimension when he argued that the appellants were being punished twice as they were convicted of aggravated robbery which is the subject of this appeal and also of rape . Mr. Muzenga conceded (while somehow sitting on the fence) that the aggravated robbery and the rape were 1a series of offences '. He argued that the prosecution should have tried both aggravated robbery and rape in one court rather than punish the appellants twice contrary to Article 18 of the Constitution. J29 • .) P.305 The difficulty we have with Mr. Muzenga 's argument is that this appeal is agai n st the j u dg m ent of the High Cou r t which convicted the appe llants of one count of aggravated robbery and sentenced them to life imprison m ent without giving any reasons. The record shows that it was duri n g cross-examination of PW 1 that the issue of the appe llants being charged wit h rape came up . PWl admitted in cross-examination th at sh e testified in t h e rape case before the Mkushi Magistrates court. She conceded that in those pro ceedings sh e admitted that the 2° d appellant was her boyfriend. Notab ly, even the po lice witnesses did not ment ion the outcome of th e rape case . More importantly before sentence, the court below was informed that there was noth ing known against the appe llants and the learned tria l ju dge rightly treated them as first offenders. In the cases of Jutronich and others vs . The People 6 and Alubisho vs. The People 4 we he ld th at: In dealing with appeals against ask itself these three questions sentence the appellate court should : (1) (2) Is the sentence wrong in principle? Is the sentence ofshock? so manifestly excessive as to induce a sense J30 ..) (3) circumstances which would render it an P. 306 Are there exceptional injustice if the sentence was not reduced? Looking at the circumstances of this case, we must state that the sentence has not come to us with a sense of shock. Clearly, the offence of aggravated robbery cannot be separated from the offence of rape and if one considers the offence of rape separately , the aggravated robbery will be a factor as well. Therefore, when considering sentence in the aggravated robbery, a trial court would not turn a blind eye to the fact that the victim was robbed and rap ed all at the same time. This was a very serious offence depicting how women become victims of gender based violence even at the hands of men who are expected to protect them. Whichever way one looks at it, the two offences are intertwined and this is why we have agreed that in future, cases of this nature should be tried by one court. In any event, the appellants were sentenced to life imprisonment for aggravated robbery and if it is true as Mr. Muzenga has submitted (we cannot verify this) that they were sentenced to 25 years for rape then the 25 year sentence was J31 / ,. P.307 "swallowed" within the sentence of life imprisonment. In practical terms, it is not possible that the 25 years can run consecutive ly to the sentence of life. In this particular case , the question of contravening Article 18 of the Constitution does not arise. In our view, and we have stated this herein, Mr. Muzenga 's arguments only serve to remind the State that where there are similar facts such as in this case, the culprits should be subjected to one trial. This will serve the ends of justice for both the State and the perpetrators. This appeal is dismissed. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE ············~:·~~~············ SUPREME COURT JUDGE J32