D.B ( a Juvenile) and Anor v The People (Appeal No.27a+b/2023) (18 December 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.27a+b/2023 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: '!;!!:$ D.B. (a Juvenile) usLlC OF ZAAfe 1st APPELLANT Of APP~ S.B. (a Juvenile) 2ND APPELLANT m a~Ii ~ 1 8_ D_ r ,.. : ._ i ( . 'I , _""_ J ' _1 " ., ' _ _, I '-A"' AND CRIMINAL REGISTRY 2 THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe JJA ON: 23rd January 2024 and 18th December 2024 For the Appellant: A. Banda-Chimimba, Legal Aid Counsel , Legal Aid Board For the Respondent: G. Zimba, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of The Laws of Zambia 3. The Juveniles Act, Chapter 59 of the Laws of Zambia 4. The Penal Code (Amendment) Act No. 23 of 2022 J2 Case referred to: 1. Paul Watson Katembele v . The People [1977] Z.R. 90 1 . O INTRODUCTION 1 .1 The appellants, who were juveniles at the time the offence was committed, appeared before the High Court, jointly charged with the offence of murder contrary to Section 200 of the Penal Code. 1 .2 They denied the charge and the matter proceeded to trial . At the end of the trial, they were both convicted for committing the offence . 1.3 The trial Judge found t hat there were no extenuating circumstances and sentenced the appellants to life imprisonment . 1 .4 They have appealed against the sentences only. 2 . 0 CASE BEFORE THE TRIAL JUDGE 2 .1 On the evidence before her, the trial Judge found that on 31st July 2019, around 21 :00 hours , in Sinda, the appellants murdered Mercy Tembo . 2.2 After considering the circumstances in which the offence was committed, the trial Judge also found there were no facts that could amount to extenuating circumstances , for the purposes of sentencing . J3 2 .3 She proceeded to sentence the appellants to life imprisonment . She did not ascribe a reason for imposing that sentence . 3.0 GROUNDS OF APPEAL AND SUBMISSIONS BY THE PARTIES 3.1 The sole ground of appeal is that the trial Judge erred when she sentenced the appellants to life imprisonment . 3.2 It was submitted that the trial Judge erred when she sentenced the appellants to life imprisonment, because they were children at the time the offence was committed; Section 72(1) of the Juveniles Act was referred to in support of the proposition . 3 .3 Finally, reference was made to Section 25 of the Penal Code and it was submitted that the appellants should have been sentenced in accordance with that provision, as it stood, at the time the offence was committed. 3 .4 In response to the sole ground of appeal, it was submitted that Section 72(1) of the Juveniles Act, was not applicable to this case as the appellants were not children at the time the offence was J4 committed. The sentence imposed by the trial Judge was therefore correct. 4.0 CONSIDERATION OF APPEAL AND DECISION OF THE COURT 4.1 At the time the appellants were being sentenced, although their actual ages were not ascertained, it was not in dispute that they were below the age of 18 years at the time they committed the offence. 4.2 Further, it is common cause that following the enactment of the Penal Code (Amendment) Act of 2022, Section 201(1) (a) of the Penal Code, which prescribed the sentence for a person convicted for the offence of murder, and Section 25(2) of the Penal Code, which prescribed the sentence where such a person was below the age of 18 years, were amended. 4.3 Even if this is the case, in the case of Paul Watson Katembele v . The People1 it was held that an offender , should be sentenced on the basis of the law as it stood, at the time the offence was committed. 4.4 Before the 2022 amendment, the relevant portions of Section 201 of the Penal Code, which prescribes the sentence for the offence of murder, read as follows : JS (1) Any person convicted of murder shall be sentenced- (a) to death; or (b) where there are extenuating circumstances, to any sentence other than death: 4 .5 Also applicable to the appellants' situation was Section 25(2) of the Penal Code. Before the 2022 amendment, the provision read as follows : 'Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that, at the time when the offence was committed, he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during the President's pleasure; and when so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct' 4.6 It follows , that having found that there were no extenuating circumstances, the trial Judge should have complied with Section 25(2) of the Penal Code, and ordered that the appellants be detained during the President' s pleasure . J6 4 .7 In view of that error, we set aside the sentences of life imprisonment and we order that the appellants be detained during the President' s pleasure, for this is the sentence that was in place at the time the appellants committed this offence . C.F.R. Mcheng DEPUTY JUDGE PRESIDENT UC OF ZAi\f coGRTOFAP~ . 1 8 D~C 2C~t ~ ~.~~ ·--··-·-- . .. .................. ............ . .l.'.LLl.L.>:= ga ~ 50067 . L\J Y . Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE