Nkanza v ThePeople (Appeal 145 of 2015) [2015] ZMSC 53 (9 September 2015)

.) (805) Selected Judgment No. 31 of 2015 IN THE SUPREME COURT OF ZAMBIA Appeal No. 145/2015 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: GIFT NKANZA AND THE PEOPLE APPELLANT RESPONDENT Coram: Phiri, Muyovwe, and Malila, JJS on the pt September, 2015 and 9th September, For the Appellant: Mr. K. Muzenga, Deputy Director Legal Aid For the Respondent: Mrs. M.e. Mwansa, Principal State Advocate JUDGMENT Muyovwe, JS, delivered the Judgment of the Court. Cases referred to: 1. Lt. General Wilford Joseph Funjika Vs The Attorney General (2005) Z. R. 97 2. Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and Others Criminal Appeal No. 914 of 2009. 3. R vs. Edward Nsokolo 2 N. R. L. R. 85 (806) Legislation referred to 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The International Covenant on Civil and Political Rights (ICCPR) Other Materials referred to: 1. Fair Trial Standards, by Prof. Michelo Hansungule to the Southern Africa Chief Justices' Forum held from 27th to 29th August, 2015 at Victoria Falls Town, Zimbabwe. presented Paper The appellant on his own plea of guilty and admission of facts was found guilty and convicted by the High Court at Lusaka of the offence of manslaughter contrary to Section 199 of the Penal Code, Cap 87 of the Laws of Zambia. The trial court sentenced the appellant to 20 years imprisonment with hard labour. The particulars of the offence alleged that the appellant on 23rd March, 2014 at Lusaka unlawfully caused the death of Joseph Mumbi (hereinafter referred to as "the deceased"). The facts were that on the material day around 16:00 hours in Chibolya compound in Lusaka, the appellant picked up a fight with two male persons. In the process, the appellant picked up a wooden stick and hit the deceased on the head and he fell unconscious to the ground. On the 25th March, 2014, the deceased's condition worsened and the (807) matter was reported to the police, thereafter, the deceased was taken to the clinic where he was referred to the University Teaching Hospital. The deceased was admitted but he passed away the next day on the 26th March, 2014. The appellant was apprehended by the deceased's relatives. On 31st March 2014, a postmortem examination was conducted on the body of the deceased and the • pathologist found that the cause of death was brain hemorrhage due to traumatic fracture of the skull due to traumatic head injury. On behalf of the appellant, Mr. Muzenga the learned Deputy Director of Legal Aid advanced one ground of appeal couched in the followingterms: 1. The sentence of 20 years imprisonment imposed on the appellant is too excessive since the appellant is a first offender who readily pleaded guilty to the charge. The learned Deputy Director filed heads of argument which he relied on and briefly augmented orally. In support of the lone ground, Mr. Muzenga in his filed heads of argument submitted that the sentence of 20 years imprisonment (808) imposed on the appellant was excessive considering that he was a first offender, was remorseful and pleaded guilty to the charge. He submitted that the trial Judge in sentencing the appellant took into account irrelevant factors which he found to be aggravating and yet they were not part of the statement of facts. Counsel found it imperative to refer us to the strong sentiments expressed by the learned trial judge during sentence. We shall examine the learned judge's comments in due course. It was submitted that the sentiments by the learned judge were not part of the statement of facts and Counsel wondered where the learned Judge got the facts which he used to justify the imposition of the stiffer penalty. Counsel argued that, the learned judge fell into grave error when he relied on facts which were not contained in the statement of facts. It was Counsel's submission that the appellant was gIven a stiffer punishment on account of residing in a township which is perceived to harbor criminals. Counsel argued that such considerations were a serious misdirection as a community's (809) perceived criminality could not be attributed to an individual. He contended that the sentence of 20 years was manifestly excessive under the circumstances and should come to us with a sense of shock. He urged us to uphold the appeal by setting aside the sentence of 20 years and in its place impose an appropriate sentence. In his brief oral arguments, Mr. Muzenga submitted that if sentences will be premised on which compound an accused was coming from, it will prejudice the poor who are likely to receive hefty sentences. He urged us to direct trial courts not to consider factors that would prejudice an accused during sentence. Counsel pointed out that the appellant was fighting with two males of equal strength and, therefore, the learned trial Judge should have taken this factor into account. He submitted that the sentence of 20 years for a person who admitted the charge and without aggravating circumstances was exceSSIve. According to Mr. Muzenga, a sentence of 3 years would be adequate and reasonable under the circumstances. Mrs. Mwansa, the learned Principal State Advocate submitted that as the appeal related to sentence only, she left it to the (810) discretion of the court. We have considered the evidence on record and the arguments by learned Counsel for the appellant. We take cogmzance that the appellant engaged himself in a fight against two people and in the process he picked up a stick and hit the deceased on the head who died a few days later. We are alive to the fact that the appellant was a first offender who readily admitted the charge. We have addressed our minds to the strong comments uttered by the learned trial judge during sentencing. The following is an excerpt of the strong sentiments made by the learned trial Judge found at Page 13 of the record of appeal: that the fact the convict " I have taken into account is a first offender who has readily pleaded guilty to the case. However, I find the offence to be aggravating by the fact that the deceased appears to have been innocent of the quarrel that had erupted between the convict and the other two people. In other words the deceased had not offered any provocation to the convict but rather he was trying fight. The convict to maintain law and order by stopping to turn his anger on to the therefore had no cause whatsoever is from Chibolya deceased. the convict I am not surprised that township which is notorious for criminal activity. I propose to get rid of at least one such criminal today by sending him away for a long time." the (811) We have critically examined the above cited comments of the learned trial Judge in light of the statement of facts produced by the prosecution in the court below. It is necessary to reproduce part of the facts before the lower court in order to have a perspective of where the trial judge was coming from when he made the cited comments above. Paragraph 2 of the statement of facts found at Page 8 of the record of appeal reads as follows: "On 23rd March 2014, around 16hours in Chibolya compound in Lusaka in the District and Province of Lusaka of the Republic of Zambia, GIFT NKANZA the accused person herein, picked up a quarrel with two male persons. A fight ensued and in the process the accused person picked a wooden stick which he used to hit the deceased on the head. The deceased namely, JOSEPH MUMBI, fell down and became unconscious. The accused person left the crime scene. The deceased was taken to his mother's place in John Laing Compound." From the above paragraph, it is crystal clear that the learned trial judge introduced his own facts which he took into account to justify the imposition of the stiff penalty. We must emphasize for the guidance of lower courts that in sentencing an accused person, a trial court should restrict itself to the statement of facts presented by the prosecution. The court should not allow itself to stray (812) outside the statement of facts as doing so may prejudice the accused and may result in an unfair trial. As the learned Deputy Director submitted, consideration of the accused's home area as it happened in this case, has the danger of depriving the poor, or indeed any accused person for that matter, of a fair trial which is guaranteed in our Constitution. In the case of Lt. General Wilford Joseph Funjika vs. The Attorney Generall we held, inter alia, that: 2. Article 18 of for the accused's individual rights to protection by law. It protects the fair trial of a person charged with a criminal offence. the Constitution provides The provIsIon m our Constitution is further amplified by Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which states that: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair independent and impartial and public hearing by a competent, tribunal established by law... Clearly, the right to a fair trial is paramount as it safe guards individuals from unlawful or arbitrary deprivation of their human (813) rights and freedoms and it ensures effective functioning of the administration of justice. It is, therefore, important to guard against any factors that have the potential to take away this right from the accused. In a paper titled "Fair Trial Standards" Prof. Michelo Hansungule cited the Supreme Court of India in the case of Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and Others2 where a fair trial was defined to mean: A trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial mean a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried is eliminated. We have deliberately discussed what a fair trial is as a reminder to trial courts that this should be kept in mind as they carry out their duty of delivering justice. In the case in casu, the learned trial judge concerned himself with the fact that the appellant was a resident of Chibolya where crime is rampant and he labeled the appellant as a criminal. This was totally uncalled for and goes against the principles of a fair trial as the learned judge exhibited bias against the appellant. Further, (814) the learned trial judge, as we have alluded to herein, introduced his own facts during sentence. According to the learned trial judge, the deceased was not part of the fight but that the fight was between the appellant and two other male persons. The learned trial judge also stated that the deceased was trying to stop the fight and that the appellant vented his anger on the deceased when he did not deserve it. A perusal of the statement of facts reveals that these facts were not in the statement of facts presented before the court below. Indeed, as rightly pointed out by Mr. Muzenga, these erroneous and prejudicial views by the learned trial judge led him to believe that there were aggravating circumstances in this case - this was a grave misdirection because there were none. And consequently, he imposed a stiff sentence which cannot be justified under the circumstances. In the case of R vs. Edward Nsokolo3 the Court of Appeal, the forerunner of this Court set out the principles to be considered by trial courts during sentence as follows: (815) Intrinsic value of the subject matter; 1) 2) Antecedents of the accused; 3) Youth of the accused; 4) Conduct of the accused at the trial particularly with regard to his plea; 5) Prevalence of the particular crime in the neighbourhood. In this case, the learned trial judge obviously failed to follow the established principles of sentencing which can be found in a plethora of cases in our law reports. We urge trial courts to follow sentencing guidelines in the interest ofjustice. Having stated the above, it is clear that the sentence of 20 years comes to us with a sense of shock. In this case, the appellant picked a quarrel with two people and the fight ensued and in the process, he struck the deceased with a stick. The deceased died a few days later. The appellant is a first offender who readily pleaded guilty and the facts of the case did not reveal any aggravating circumstance. We, therefore, set aside the sentence of 20 years and instead, we impose a sentence of 10 years imprisonment with hard labour with effect from the date of arrest. • • Appeal against sentence allowed. 0=.- ~ ~ "-:; ~ 't•'II"•• (816) (~ll::-:i \i "/'.,. ......~,......•........ ,lA...\... ~. -J .......••••....... , ~ G.,S. PHIRI SUPREME COURT JUDGE I. E. N. C. MUYOVWE SUPREME COURT JUDGE ..................•••.• ~~~•.................. M.-MALILA ~ SUPREME COURT JUDGE 12