Errickson Mwansa v the People (APPEAL NO. 56/2019) [2021] ZMSC 164 (4 March 2021)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 56/2019 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: ERRICKSON MWANSA APPELLANT AND THE PEOPLE RESPONDENT Coram: Muyovwe, Hama undu and Chinyama, JJS. On 14th June, 2020 and on 4 th March , 202 1. For the Appellant: M s E. I. Banda, Senior Legal Aid Counsel, Legal Aid Board For the R espondent: Mrs C. M. Hambayi, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases ref erred to: 1. Phiri v The People ( 1970) SJ 1 78 2. Jutronich, Shutte and Lukin v The People (1965) Z. R. 9 3 . Nyirenda (Capson) v The People (1980) Z. R. 194 4. Richard Kasonde v The People, Appeal No. 125 of 2018 5. Moses Mwiba v The People (1971) ZR 13 6. Solomon Chiliml>a v The People (1971) ZR 36 7. Ngosa Banda v The People, Appeal No. 138/2017 8. Francis Kamfwa v The People, Appeal No. 125/2017 1. We heard this appeal together with Lady Justice E. N. C. Muyovwe who regrettably, recently passed on. The decision is, therefore, that of the majority. 2. The appellant was convicted on his own plea of guilty to a charge of manslaughter of a baby aged 5 days. He was sentenced to 35 years imprisonment with hard labour. 3. This appeal is against sentence only on the ground that it is excessive considering that the appellant was a first offender who deserved maximum leniency. 4. The facts relevant to the appeal disclosed that on 7 th May, 2013 the appellant had been drinking beer with a friend at the deceased baby's father's tavern situate at Chaswe village in Luwingu. While there h e picked up a quarrel with the friend. The baby's father intervened. 5 . The appellant went to pick an iron bar and a spear. When he returned he did not find the baby's father and the friend who had fled in fear. The appellant then vented his anger on the mother to the qeceased baby, Susan Chibale who was standing nearby holding the baby . The appellant attempted to hit Ms. Chibale with the h andle of the spear but the blow landed on the J2 baby's stomach. The baby cried out in pain and Susan fled the scene with the baby. Thereafter the baby started having difficulties in breathing. In the night, the baby died. 6 . The matter was reported to police and the baby was buried the next day without a post-mortem. The appellant was apprehended and initially charged with murder which was then reduced to manslaughter. The appellant pleaded guilty to the charge. He did not dispute the facts read out by the State and the court found him guilty of manslaughter and convicted him accordingly. 7 . The learned defence Counsel pleaded on behalf of the appellant in mitigation, that the appellant was a first offender who had readily pleaded guilty. According to Counsel, the appellant had told him that the deceased child was his nephew and deeply regretted having deprived his sister of her child which would haunt him the rest of his life. This demonstrated that the appellant was remorseful. Counsel prayed for a light sentence on behalf of his client. 8. In passing the sentence, the court considered the fact that he was a first offender and that he readily pleaded guilty to the J3 charge. The court, however, also considered the behaviour of the appellant leading up to the commission of the offence and found it to be an aggravating circumstance . The court took the view that the behaviour called for a stiffer punishment than is normally imposed on a first offender and sentenced him to 35 years Imprisonment with hard labour as it were. 9 . It was submitted on behalf of the appellant in this appeal, citing the cases of Phiri v The People 1 and Jutronich, Shutte and Lukin v The People2 , that the sentence was manifestly excessive for a first offender who readily pleaded guilty and did not waste the court's time and should, therefore, come to us with a sense of shock. 10. On behalf of the State, it was submitted in response, citing the case of Cap son Nyirenda v The People3 , that the facts of the case revealed unconscionable conduct deserving of murder which ought to deprive the appellant of any leniency even though he was a first offender. It was pointed out that a severe sentence was required to deter others from behaving in a similar manner and to send a message to society that violence on defenceless women and children is not condoned in Zambia. J4 11. We have considered the ground of appeal and the submissions on either side. 12. In the recent case of. Richard Kasonde v The People4 , the appellant was sentenced to 35 years imprisonment with h ard labour for the offence of manslaughter. The facts were not very different from those in the instant case . The appellant, who was a first offender, had inadvertently, fatally kicked his child which was on its mother's back while assaulting his wife (the mother) for neglecting the child who was sick. The child sustained serious injuries and subsequently died. In dealing with the sentence imposed by the trial court, we noted that it was reckless for th e appellant to assault his wife who was carrying the sick baby on her back. We agreed with the trial judge that this was an aggravating circumstance. We were, however, of the view that the trial judge should have afforded the appellant an allowance for admitting the ch arge , being a first offender and showing contrition in line with the principles set out in the cases of Moses Mwiba v The People5 and Solomon Chilimba v The People6 • We referred to the need for consistency and JS predictability, of course in similar cases, in sentencing as we alluded to in the cases of Ngosa Banda v The People7 and Francis Kamfwa v The People8 and determined that the sentence of 35 years imprisonment came to us with a sense of shock. We reduced the sentence to 10 years imprisonment with hard labour. 13. As noted, the facts in the case of Richard Kasonde v The People4 are not dissimilar to those in the case before us. It was equally reckless for the appellant to set out to assault the baby's mother who had nothing to do with the dispute between the appellant and his friend or the father of the baby. It was not also advisable to embark on settling the difference between him and his colleagues through violent means . He ended up inadvertently fatally assaulting the baby. The appellant's unjustified behaviour was an aggravating circumstance. 14. Ms Banda, however, pleaded that the appellant deeply regretted his conduct, particularly that the deceased child was his nephew. 15. We note that the appellant readily admitted the charge. He 1s a first offenqer and has shown contrition for what he did. JG Consistent with our decision in the case of Richard Kasonde4 referred to above, this must go to his credit with the result that the sentence of 35 years imprisonment must come to us with a sense of shock. We, accordingly, set it aside. In its place we impose a sentence of 10 years imprisonment with hard labour effective from the date of incarceration. 16. The appeal is, accordingly successful. . . . . . . . . . . . . . . . ~ -........ . --- E. M. H MAUNDU SUPREME COURT JUDGE .............. -~ .. :~ ......... . J. CHI NYAMA SUPREME COURT JUDGE J7