Mwale v The People (SCZ Appeal 58 of 2011) [2014] ZMSC 26 (3 February 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ/APPEAL № 58/2011 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: GRAYSON MWALE APPELLANT AND THE PEOPLE RESPONDENT CORAM: PHIRI, WANKI, JJS AND LENGALENGA, Ag JS On 9th April, 2013 and 4th February, 2014 For the appellant : Mrs. K. Simfukwe, Legal Aid Counsel – Legal Aid Board For the respondent : Mrs. M. C. Mwansa, Assistant Senior State Advocate – National Prosecutions Authority J U D G M E N T LENGALENGA, Ag. JS, delivered the Judgment of the Court. Cases referred to: 1. MUYOKA v THE PEOPLE (1986) ZR 43 (SC) 2. SIKAONGA v THE PEOPLE (2009) ZR 3. PHIRI v THE PEOPLE 1970 SJZ 178 4. JUTRONICH v THE PEOPLE (1965) ZR 9 5. KAAMBO v THE PEOPLE (1976) ZR 122 (SC) Legislation referred to: 1. THE PENAL CODE, CAP 87 OF THE LAWS OF ZAMBIA The appellant was convicted of defilement contrary to section 138 of the Penal Code as read with Act № 15 of 2005. The particulars of offence are that the appellant on 18th January, 2010 at Petauke, in the Petauke District of the Eastern Province of Zambia, did have unlawful carnal knowledge of a child under the age of 16 years. He denied the charge and the matter proceeded to trial. Briefly the evidence that emerged at the trial is that the victim was a girl aged fourteen (14) years who on the material date was at the fields with her friend of the same age, together with the appellant. Whilst there the two girls were brewing kachasu, an illicit beer and the appellant asked for a bottle of kachasu which he drunk and then gave the remaining kachasu to the girls. Later they left to go and pick up mangoes and the appellant followed them and when the girls separated, the victim passed out. It was discovered that she had been repeatedly defiled by the appellant who was later tried and convicted of the offence of defilement. He was sentenced to 30 years imprisonment with hard labour, the sentence against which he now appeals. The appellant filed only one ground of appeal which states as follows: 1. The Court below erred in law and in fact when it imposed a severe 30 year imprisonment sentence with hard labour on the appellant who was a first offender at the time of his conviction and despite the facts of the case. In support of this ground of appeal, learned Legal Aid Counsel argued that the offence of defilement carries a stiff minimum sentence of fifteen years which was an enhancement on the previous sentence in a bid to deter would be offenders. She argued further that whilst a trial court has wide discretionary powers to sentence from fifteen years to life imprisonment, the sentencing court in arriving at an appropriate sentence should consider that a statutory minimum sentence encompasses a wide spectrum of the offence. She relied on the case of MUYOKA v THE PEOPLE 1 where this Court observed: “When considering whether to sentence an accused person for more than a mandatory minimum sentence, courts should take note of the fact that the minimum imposed by Parliament covers a very broad spectrum of the type of offence for which Parliament has declared that mandatory minimum.” Learned Legal Aid Counsel submitted that the appellant’s case deserves a minimum sentence and she referred us to the case of SIKAONGA v THE PEOPLE 2 in which this Court observed: “An ordinary case of defilement will ordinarily attract the minimum sentence of 15 years imprisonment.” She argued that the appellant as a first offender is entitled to leniency even if the circumstances of the 3 . Learned Legal Aid case make such leniency minimal as was stated in the case of PHIRI v THE PEOPLE Counsel pointed out that the sentence imposed on the appellant is twice the mandatory minimum sentence and as such is severe. Whilst acknowledging that the sentencing court is entitled to impose a deterent sentence, she submitted that this power ought to be exercised within well-defined boundaries to ensure certainty and consistency in sentencing which is the hall mark of a fair criminal justice system. To fortify her argument she relied on the case of JUTRONICH v THE PEOPLE 4 where the Court observed: “Disparity of sentences for crimes of comparable character is a factor which can be taken into account on appeal against sentence.” In the appellant’s case, she submitted that the evidence revealed that both the prosecutrix and the appellant were drinking the highly intoxicating kachasu brew and that they were both drunk. She argued that there was no indication that the appellant gave the prosecutrix alcohol to induce her to sleep with him. Learned Legal Aid Counsel further argued that the imposition of the statutory minimum sentence would adequately have expressed the court’s displeasure at the appellant’s conduct. She submitted that the 30 years sentence is excessive and that a more lenient sentence would be more appropriate in view of the matters raised from the facts on record. She also relied on the case of KAAMBO v THE PEOPLE 5 in which this Court held: “The basis of sentence must always be the proper sentence merited by the offence itself, after which the court considers whether the accused is entitled to leniency.” Learned Legal Aid Counsel humbly submitted that the 30 years imprisonment sentence is extreme and prayed that a more lenient sentence be imposed on the appellant. We are grateful for the submissions by Counsel for the appellant. The learned Assistant Senior State Advocate declined to address the Court upon observing that the appeal was against sentence only. She left it to this Court’s discretion. We have perused the record of proceedings before the trial court and the reasons advanced by the sentencing Judge for the sentence imposed. We have also considered learned Legal Aid Counsel’s spirited arguments to fortify the sole ground of appeal that the sentence of 30 years imprisonment with hard labour is excessive. We agree with all the principles enunciated in the cases cited by learned Counsel but we also considered the evidence and circumstances of the offence. The prosecutrix and victim in this case was only 14 years old and she was intoxicated and had passed out then she was repeatedly defiled by the appellant. This was an aggravating factor. Courts are slow to interfere with a sentence unless it is shown that the discretion to mete out the sentence has been exercised wrongly or where it is shown that the sentence is so severe that it causes a sense of shock. Considering that this offence carries a maximum sentence of life imprisonment, the sentence of 30 years is not excessive taking into account the age of the victim and all the prevailing circumstances of the case. It, therefore, does not come to us with a sense of shock. Further, if the sentencing Judge’s discretion had been exercised wrongly, this court would not have hesitated to set aside the sentence and substitute it with a sentence which it considers appropriate. We, therefore, do not accept Counsel’s submission that the sentence imposed on the appellant is excessive. Defiling a 14 year old girl who had passed out after being intoxicated is not only very unfortunate but very serious and the perpetrator of this offence deserved the sentence meted out. In conclusion, the sentence was correct in principle and we accordingly decline to interfere with it. The sole ground of appeal fails and so does the entire appeal. …………………………………………….. …………………………………………… G. S. Phiri M. E. Wanki SUPREME COURT JUDGE SUPREME COURT JUDGE …………………………………………………… F. M. Lengalenga ACTING SUPREME COURT JUDGE