Ngosa Banda v People (SCZ Appeal 38 of 2017) [2019] ZMSC 329 (10 June 2019)

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. HOLDEN AT KABWE 38/2017 (Criminal Jurisdiction) BETWEEN: NGOSA BANDA AND THE PEOPLE APPELLANT RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS. On 7th November, 2017 and on 10th June, 2019. APPEARANCES: For the Appellants: Mr S. Mweemba, Senior Legal Aid Counsel, Legal Aid Board. For'the Respondents: Mrs R. M. Khuzwayo, Deputy Chief State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases referred to: 1. Benua v The People (1976) ZR 13. 2. Moses Mwiba v The People (1971) ZR 131. 3. Jutronich, Schutte and Likin v The People (1965) ZR 9. 4. Noah Kambobe v The People SCZ Judgment No. 13 of 2002. 5. Michael Coetzee v The People (1995) SJ. 6. Phiri, J. W. v The People (1973) ZR 2. Legislation referred to: 1. Penal Code, Chapter 87, Laws of Zambia, Section 202. Introduction 1. The appellant was convicted on his own plea of guilty tp a charge of manslaughter in that he unlawfully caused the death of Maxildah Tembo at Kabwe. He was sentenced to a term of 25 years imprisonment with hard labour. The appeal is against sentence only. The statement of facts 2. The statement of facts given fo the court by the State Advocate after the appellant pleaded guilty were that on 25th December, 2013, the appellant was at Wezi’s bar in Liteta area in the , Chibombo district of the Qentral Province. He was in* the company of two colleagues named Willie and Allan. The deceased was in the company of her husband, Emmanuel « < < < * J2 Chilawa Chola. They were all drinking beer. The time was towards or around midnight. 4. V 4. * 3. After a while the deceased and her husband decided to leave. As they were leaving, one of the appellant’s friends made a c < c < remark directed at the deceased. The husband was infuriated and a quarrel erupted which escalated into a fight between » » • ’ him and the appellant’s friends. In the process the deceased and the appellant attempted to intervene. The appellant then kicked the deceased in the abdomen. 4. The deceased experienced severe pain in the abdomen. Upon leaving the bar she was taken to Liteta hospital where she was » > » ’ admitted. She was later transferred to Kabwe General Hospital. The deceased received treatment for a swollen stomach and pains. She died on 20th January, 2014 while in i » * i * 1 * hospital. A post-mortem examination revealed the cause of death as rapture of the large intestine due to trauma. < « < « * J3 5. The appellant was initially charged with the offence of murder. It was eventually reduced to manslaughter. It was averred *. *. ». ». that the appellant did unlawfully cause the death of the deceased without ji^st cause. < t 6. When the appellant was asked to confirm the facts, he replied i • • » that they were correct and that he had nothing to add to them. Mitigation 7. In mitigation, it was pointed out that the appellant was 41 years old and a breadwinner of school going children. He had been in custody since 22nd January, 2014. He pleaded for * » » * • maximum leniency as he regretted the incident. It was not in issue that he was a first offender. i * Consideration of and the sentence by the trial Judge 8. In passing sentence the learned judge in the court below < < « ’ • stated that although the appellant was a first offender who had pleaded guilty his action was not provoked by the deceased. The learned judge stated that it was unfortunate *, ‘ ». ». that the appellant turned his anger on an innocent woman wh^m he kicked i^i the abdomen ^causing the fal^il injury . The court also stated that drinking beer should never be an excuse ( for engaging in criminal(activity. He sentenced the ajjpellant to 25 years imprisonment with hard labour with effect from the date of arrest. The appeal 9. There is only one ground of appeal which is that- The sentence of 25 years imprisonment with hard labour was manifestly excessive and did not reflect the fact that the ■ appellant was a first offender who pleaded guilty to the charge. » * * The submissions on behalf of the appellant 10. Mr Mweemba’s submissions on behalf of the appellant i » i * i » i • contended that the sentence of 25 years imprisonment with, hard labour imposed on the appellant was excessive and an « error in principle in not reflecting the faci that he had pleaded guilty and was a first offender which entitled him to leniency. J5 That he had also shown contrition for the offence. The cases of Benua v The People1 and Moses Mwiba v The People2were cited in support of the submission. 1 1 < <• < 1 1 . Citing the case of Jutronich, Schutte and Likin v The People3^! was submitted that cases of comparable character., should be treated similarly and should result in a reduced sentence as was the case in the cases of Noah Kambobe v The People4 and Michael Coetzee v The People5. We were thus urged to view the sentence of 25 years imprisonment with a sense of shock and to reduce the sentence. Submissions on behalf of the respondent, , 12. Mrs Khuzwayo, learned Deputy Chief State Advocate, at the time, agreed with Mr Mweemba that the sentence imposed in this case was quite excessive 'since the apptellant had admitted the charge. She, however, submitted that the fact that the deceased had tp undergo two operations arising from the kick which she believed must have been very forceful to J6 rapture the intestine should be taken into account. Also that the reduced sentence should be sufficiently deterrent to *, v *, discourage others. 13* These wer^ the submissions in this case.* *, * Consideration of the arguments • » * • 14. We have considered the submissions by the learned advocates on either side. It is quite apparent in the case before us that what influenced the learned judge in imposing the sentence was his belief that the appellant’s action was unprovoked and actuated ’03/ anger which he vented on the deceased. This is, however, not what was stated in the 1 c » » • » statement of facts which we have literally reproduced. 15. There is nowhere where it was stated that the appellant was'*at any time angry. What was stated was'merely that, together with the deceased, the appellant attempted to intervene in the fight between his frie/ids and the deceased’s husband. It is during that intercourse that the appellant J7 kicked the deceased in the stomach. It is the deceased’s husband whom the facts show to have been infuriated by the « <. *■ remarks made to his wife. In the absence of other implicating details, the fajtal kick was at< the least reckless for, we failito see why a person trying to make peace should lash out with a kick., , • » i 16. In passing sentence the learned judge, however, misapprehended the facts and took into account matters that were not part of the statement of facts agreed to by the appellant. This was a misdirection on the part of the learned judge and the imposition of the sentence in that regard was wrong in principle. • » » » » 17. As guided by the authorities, among others those referred to by Mr Mweemba, the learned trial judge should have taken into account the fefct that the appellant had pleaded guilty and * was a first offender. He should also have taken into account the fact that the appellant was contrite. Therefore, that all < < < < < these entitled him to some leniency on which basis he should J8^ > b > > > have arrived at a sentence lower than the 25 years imposed by the court below. *. *. «. *. 18. In the two cases of Noah Kambobe and Michael Coetzee C < C cited by Mr Mweemba the appellants deliberately assaulted the deceased leading to their deaths. Both appellants pleaded » » » » guilty to the charges of manslaughter. In the first case, the sentence was reduced to 10 years imprisonment from 32 years while in the second case, the sentence was reduced from six years although the report does not state the sentence that was s, u. w. • substituted. 19. In another case, Phiri, J. W. v The People6 Doyle CJ, in the then Court of Appeal, dealt with a case of manslaughter » > » » » arising from a beer drinking spree. In that case a quarrel over some triviality arose between the appellant and the deceased while they were drinking beer and a fight started. The i * i » i * i • i » appellant picked up a hoe and struck the deceased with it and killed him. The appellant who pleaded guilty to the charge of t < « « manslaughter was sentenced to six years imprisonment with hard labour. The Court of Appeal regarded the sentence as being “too great” and substituted it with a sentence of four years imprisonment with hard labour. Notwithstanding, all the * ' * » sentences were much less than the 25 years imposed in this' < case by moife than half. 1 20. What we distil from the three cases above although by no means indicating the sentencing trends in cases of this nature ’ over the four or so decades since those decisions is that a plea of guilty and the fact that a convict is a first offender are taken ' seriously in mitigating the gravity of sentence where the nature of the case allows it. In the particular circumstances of this case, we find that the sentence of 25 years imprisonment is without doubt excessive,, wrong in principle and comes to us with a sense of sHock. We feel bobnd to interfere* with it. » 21. We have accordingly taken into account the fact that the appellant is a first, offender who readily admitted the charge 1 ' and indicated that, he is remorseful. ■J10 The decision 22. We'are of the view**that, notwithstanding the misfortune that the deceased died from being kicked, a sentence of 5 <■ i < <, years imprisonment with hard labour will meet with the justice of the case. To that extent, therefore, we find merit in the » • » i i appeal. The appellant having been in detention since 22nd January, 2014 means he has served his sentence. We accordingly set him at liberty forthwith. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE i ’ i * * t » » J. CHINYAMA SUPREME COURV JUDGE 111