Hara v ThePeople (SCZ Appeal 162 of 2011) [2014] ZMSC 31 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA 162/2011 HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APPEAL № BETWEEN: PATRICK HARA AND THE PEOPLE APPELLANT RESPONDENT CORAM: PHIRI, WANKI, JJS AND LENGALENGA, Ag JS On 9th April, 2013 and 10th March, 2014 For the appellant Counsel – Legal : Mrs. K. Simfukwe, Legal Aid Aid Board For the respondent : State Mrs. M. C. Mwansa, Assistant Senior 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. SIKAONGA v THE PEOPLE (2009) ZR 192 2. JUTRONICH, SCHUTTE AND LUKIN v THE PEOPLE (1965) ZR 9 J2 3. KAAMBO v THE PEOPLE (1976) ZR 122 4. NSOKOLO v THE PEOPLE 2 NRLR 85 5. CHIPETA v THE PEOPLE (1970) SJZ 189 6. PHIRI v THE PEOPLE (1970) SJZ 178 7. BENUA v THE PEOPLE (1976) ZR 13 (SC) The appellant was convicted of defilement contrary to section 138(1) of the Penal Code, Cap. 87 of the Laws of Zambia as read with Act № 15 of 2005. The particulars of offence were that on 17th May, 2010 at Lundazi in the Lundazi District of the Eastern Province of the Republic of Zambia, the appellant had unlawful carnal knowledge of a girl under the age of 16 years. He pleaded guilty and was convicted accordingly and sentenced to 30 years imprisonment with hard labour with effect from 20th May, 2010. He now appeals against the sentence imposed by the Court below. Briefly, the admitted facts were that the appellant went into a house where the prosecutrix, a girl aged twelve (12) years was and he got hold of her, forced her down, undressed her and himself and sexually assaulted her. At the same time he covered her mouth with a cloth to stop her from screaming. After the act, he warned her not to tell anyone and he left. Being in pain, she J3 immediately told her uncle who informed her father and the matter was reported to the police. The appellant was later tried, convicted and sentenced to the term of imprisonment against which he now appeals to this Court. Two grounds of appeal were filed into court by Legal Aid Counsel on behalf of the appellant and they state as follows: 1. The sentencing court erred in law and in fact when it sentenced the appellant to a colossal term of 30 years imprisonment with hard labour in the absence of any aggravating circumstances. 2. The sentencing court erred in law and in fact when it neglected to take into account the mitigating circumstances in this case in arriving at an appropriate sentence. The grounds of appeal are supported by heads of argument. In support of the first ground of appeal, learned Legal Aid Counsel argued on behalf of the appellant that the sentence imposed on the appellant is excessive and should come to this Court with a sense of shock, in view of the facts upon which the appellant was convicted. She referred us to the case of SIKAONGA v THE PEOPLE 1 where this Court observed: “The law as enacted is that the minimum sentence for J4 defilement is 15 years and the maximum is life sentence. The range in sentence means that the legislature has given the courts the freedom to impose different sentences according to the facts of each case. An ordinary case of defilement will ordinarily attract a minimum sentence of 15 years imprisonment. However, where an accused is found to have infected the victim with a sexually transmitted disease, the sentence will certainly attract a more severe sentence above the minimum sentence of 15 years.” Learned Legal Aid Counsel submitted that the appellant’s case may be classified as an ordinary case of defilement due to the absence of aggravating circumstances such as the one noted in the cited case. The reason she advanced for that argument is that the twelve year old victim did not sustain serious physical injuries or get infected with a sexually transmitted disease. She submitted further that she was not impregnated by the appellant as noted from the medical report exhibited in the court below. She also pointed out that the 30 years imprisonment meted out to the appellant is twice the minimum sentence for this offence and too severe in the circumstances. To fortify her argument for the need for consistency in sentencing, she cited the case of JUTRONICH, SCHUTTE AND LUKIN v THE PEOPLE 2 , wherein the Court stated inter alia: J5 “Disparity of sentences for crimes of comparable character is a factor which can be taken into account on an appeal against sentence.” She submitted that even though they noted the reasons for the stiff penalty imposed by the sentencing court, it is their contention that when a deterrent sentence is meted out, it must be commensurate to the offence committed taking into account all the available facts. Learned Legal Aid Counsel called in aid the case of KAAMBO v THE PEOPLE 3 where this Court observed: “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.” Counsel prayed on behalf of the appellant that the sentence be reduced to the minimum statutory sentence commensurate to the facts of the case. In support of the second ground, learned Legal Aid Counsel argued that various factors must be taken into account in determining an appropriate sentence. She relied on the case of NSOKOLO v THE PEOPLE 4 which was approved in CHIPATA v J6 THE PEOPLE 5 where guidelines were given on the matter and factors to consider and these include: (1) The antecedents of the accused person, and (2) The conduct of the accused at trial, particularly as regards to his plea. She argued that in this case the appellant was a first offender who readily admitted the offence without wasting the court’s time and that as such he is entitled to leniency. To support this argument, she relied on a plethora of cases on the principle of exercising leniency in sentencing of first offenders who readily plead guilty. In PHIRI v THE PEOPLE 6 this Court held inter alia: “A first offender should not be denied leniency although circumstances may make the application of such leniency minimal. The reason for dealing with a first offender leniently is in the hope that a severe sentence is not necessary and that a lenient sentence will be sufficient to teach a previously honest man a lesson.” Further in BENUA v THE PEOPLE 7 , this Court observed: “A plea of guilty must be taken into account in considering sentence and a failure to do so is an error in principle, thus allowing an appeal court to amend sentence.” J7 In the appellant’s case, learned Legal Aid Counsel argued that in considering the degree of leniency to be afforded to a person convicted of defilement the Court should consider the fact that the fifteen years minimum sentence was intended to be a deterrent sentence and that as such, it is a stiff penalty in itself. She submitted, therefore, that the appellant was not shown any leniency in this case and she prayed that this Court reduce the sentence to the statutory minimum. We have perused the record of proceedings of the trial court and the court below which meted out the sentence to the appellant. We are grateful to Counsel for the authorities and we agree with the principles enunciated therein. The gist of Counsel’s submission in support of the two grounds of appeal is that a first offender who readily pleads guilty and does not waste the court’s time deserves leniency when it comes to sentencing and that there is need for consistency in sentencing of offenders. The appellant was sentenced to thirty (30) years imprisonment with hard labour. We considered the circumstances of the attack on the twelve (12) year old girl who was defiled in a house where she was. The mere fact that the appellant entered J8 the house, covered her mouth and defiled her, is unfortunate. Young girls are no longer safe even in their homes. Therefore, each case depends on the circumstances surrounding the commission of the offence such as the age of the victim, the manner of attack, the relationship between the victim and the perpetrator of the offence. We, accordingly, do not accept Counsel for the appellant’s argument that the appellant should have his sentence reduced to the statutory minimum of fifteen years just because he is a first offender. This offence carries a maximum sentence of life imprisonment. The sentence of thirty (30) years is, therefore, not excessive, considering the age of the victim and all the prevailing circumstances of the case. 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. In this case, the sentence of thirty (30) years does not come to us with a sense of shock. With regard to the second ground of appeal, it is our view that the learned sentencing judge was on firm ground when he J9 meted out the sentence of 30 years to the appellant. He did not neglect to take into account the mitigating circumstances in this case in arriving at an appropriate sentence. At page 2 and paragraph 2 of the sentence it clearly shows that he considered the mitigation by the appellant when he stated as follows: “I have considered the mitigation of the convict. He is a first offender who readily admitted the charge and therefore deserves leniency. However, the offence for which he was convicted carries a minimum sentence of not less than 15 years imprisonment and the convict may be liable to imprisonment for life.” From the comments by the learned sentencing Judge, it is clear that the law provides for a sentence of fifteen years to life imprisonment. We find that the learned sentencing Judge was within the law when he sentenced the appellant to 30 years imprisonment with hard labour. If the sentencing Judge’s discretion had not been properly exercised, this Court would not have hesitated to set aside and substitute it with a sentence that it considers appropriate. In conclusion, the sentence was correct in principle and we, accordingly decline to interfere with it. This second ground also fails. J10 The net effect is that the entire appeal fails and it is accordingly dismissed. The conviction and sentence is accordingly upheld. ……………………………………………. ……………………………………………… G. S. Phiri SUPREME COURT JUDGE M. E. Wanki SUPREME COURT JUDGE …………………………………………………… F. M. Lengalenga ACTING SUPREME COURT JUDGE