Mutale v The People (Appeal 101 of 2008) [2009] ZMSC 3 (11 September 2009)

IN THE SUPREME COURT OF ZAMBIA HOLDEN ATNDOLA (CRIMINAL JURISDICTION) BETWEEN APPEAL NO. 101/2008 NKONDE MUTALE APPELLANT VS THE PEOPLE RESPONDENT CORAM: MAMBILIMA, DCJ, SILOMBA, MUSHABATI, JJS On 9th and 11th September, 2009 For the Appellant: For the Respondent: Mr. L. E. EYAA, Deputy Director of legal Aid Mrs. R. N. KHUZWAYO, Deputy Chief State Advocate _____________________________ JUDGMENT SILOMBA, JS delivered the judgment of the Court. This is an appeal against the ruling of the High Court dated the 5th day of November, 2007. In that Ruling the Appellant was sentenced to 15 years imprisonment with hard labour for the offence of abduction of a child contrary to Section 136 of the Penal Code, Chapter 87 of the Laws, as amended by Act No. 15 of 2005. The particulars of the offence were that Nkonde MUTALE on the 1st day of March, 2007 at Kasama in the Kasama District of the Northern Province of the Republic of Zambia did unlawfully take Gladys KAMPAMBA, who was a child, out * of custody or protection of the father, mother or other person having lawful care or charge of her and against the will of such father, mother or other person. The Appellant was tried in the Subordinate Court for the said offence holden at Kasama District of the Northern Province of the Republic of Zambia. After trial, the Appellant was convicted and sent to the High Court for sentence as shown above. In this appeal it will not be necessary to go into the facts of the case. This is so because when we heard the appeal we were informed by Counsel representing the Appellant that the Appellant was appealing against sentence only. From his oral submission and heads of argument, Counsel did not state the ground of appeal. He however stated in the heads of argument that the sentence of 15 years was extremely excessive, unlawful and beyond the maximum statutory sentence under Section 136 of the Penal Code, as amended. He urged us to impose the minimum statutory sentence of 7 years as prescribed by Section 136 of the Penal Code. By way of mitigation, Counsel submitted in the heads of argument that the Appellant, aged 47years, was married with five children and was taking care of four orphans who were left behind by his elder brother. He submitted that the Appellant was remorseful for committing the crime and had promised never to indulge himself in such criminal activities. In response Counsel for the Respondent conceded that the sentence imposed by the lower Court did not accord with Section 136 of the Penal Code. We have visited Section 136 of the Penal Code and in view of the submission by Counsel for the Appellant, we find that the sentence imposed by the learned trial Judge was excessive and had no statutory support under Section 136 of the Penal Code. The sentence under the said Section is a minimum of 7 years and not exceeding 10 years so that a sentence of 15 years was well above the maximum under the Section. We cannot understand why the learned trial Judge imposed a sentence above the maximum when the law is very clear. In the view we take of the offence and considering the fact that the victim was only four years old, a sentence of eight years imprisonment with hard labour would suffice. That being the case, the appeal is allowed and the sentence of 15 years is set aside and substituted with a sentence of eight years with effect from 1st March, 2006. LC. Mambilima DEPUTY CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE 4