G. G (A Juvenile) and S. K (A Juvenile) v The People (App No. 121,122/2022) (2 May 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA App No. 121,122/2022 HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) BETWEEN G.G (A JUVENILE) 1 ST APPELLANT S.K (A JUVENILE) 2ND APPELLANT U2 MAY 2024 AND INAL REGIST THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA ON: 22nd March 2023, 24th March 2023 and 2nd May 2024 For the Appellant: W. Mubanga SC, Chilupe and Pe rmanent Chambers, with M. Nsapato and A.K Machiya of Nsapato and Co. Advocates For the Respondent: M.M Chilufya, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases Referred to: 1. The People v . Alfred Mumba, Charita Ngenda, Shadreck Nasilele and Obin Chamba [1978] Z.R. 405 2. Emmanuel Chimfwembe v . The People [1998] Z.R. 32 ..... J2 Legislation referred to : 1 . The Penal Code, Chapter 87 of the Laws of Zambia 2 . The Juveniles Act, Chapter 53 of the Laws of Zambia 3 . The Probation of Offenders Act, Chapter 93 of the Laws of Zambia INTRODUCTION The appel lants and two others, appeared before the [11 Subordinate Court (Honourable Mwabona) , on 3QLh March 2016, charged with the offence of breaking into a building and committing a felony therein, contrary to Section 303 of the Penal Code . At the time, the 1st appellant was aged 16 years old [21 and the 2nd appellant was aged 14 years old. The 1 st appellant admitted the charge, while the 2nd [3J appellant denied the charge . The 1 st appellant was found guilty of committing the C4J offence after he also admitted the facts in support of the charge. He was then committed to a reformatory. cs1 In the case of the 2nd appellant, he was found guilty J3 of committing the offence after a trial; he was committed to an approved school . On the 21st June 2016, the appellants' case was cGJ committed to the High Court for the confirmation of the orders that had been made against them . It was not until the 18th of February 2020, that the c11 High Court ( Penegele, J . ) , had the opportunity to confirm the orders issued against the appellants . Both appellants have appealed against the cs1 confirmation of the orders by the High Court . CASE AGAINST THE 2ND APPELLANT Before we deal with the 3 grounds of appeal, which C9J are against the orders imposed on the appellants, it is necessary that we consider the propriety of the finding of guilty against the 2nd appellant . When the two appellants appeared for plea, on the c101 16th of March 2016, the 1st appellant' s guardian was present, while neither the parents nor the guardians of the 2nd appellant, were present in court . From the record, there is no indication that the c111 J4 parents or guardians of the 2nd appell ant attended any subsequent court hearings . Section 127 of the Juveniles Act, which governed the c121 trial of juveniles at the time, provided that where a juvenile was charged with an offence, a p~rent or guardian of that juvenile, was supposed to be present throughout the court proceedings . In the case of The People v. Alfred Mumba and 3 c13J Others1 it was held that it was mandatory under , Section 127 of the Juveniles Act, for the parent or guardian of a juvenile who was charged with an offence to attend court throughout the proceedings, unless such attendance had been dispensed with. This being the case, we find that the proceedings c141 that resulted in the 2nd appellant being found guilty of committing the offence, were a nullity because the court was not properly constituted on account of his guardian or parent not being absent . Consequently, we set aside the fin ding of guilty made c1s1 against the 2nd appellant . ... JS We have considered the option of ordering a retrial c161 as proposed by Ms . Chilufya . We note that the offence the 2nd appellant was found c111 guilty of committing (Section 303 of the Penal Code) , attracts a sentence of up to 7 years imprisonment . At the time the 2nd appellant was granted bail pending c101 the hearing of this appeal, he had spent close to 4 years in custody . Going by the circumstances in which the offence in c191 this case was committed, a sent ence of about 4 years would most probably have been imposed for committing the offence . This being the case, we find t hat it inappropriate to c2O1 order a retrial as the 2nd appellant has more or less ' served' the sentence the offence attracts . 1 APPELLANT ' S GROUNDS OF APPEAL AND ARGUMENTS ST The three grounds in support of t he 1 st appellant' s c211 appeal raise one issue, that is, that the High Court Judge should not have confirmed the reformatory order J6 issued against the 1st appellant given the period of time he had spent in custody prior to confirmation . Section 37 of the Penal Code was referred to and it [22i was submitted that even if a sentence ordinarily takes effect on the date it is imposed, the court ought to have exercised leniency and subtracted the four years the appellants had spent in prison prior to confirmation of the reformatory order . The case of Emmanuel Chimfwembe v. The People2 was referred to in support of the proposition . COURT'S CONSIDERATION AND DETERMINATION OF 15 T APPELLANT'S APPEAL Section 93 of the Juveniles Act, provided as follows : c231 A reformatory order shall, subject to the provisions of this Act, be authority for the detention of the person named therein for a period of four years. Further, Section 94 of the Juveniles Act read out as c241 follows : (1) No reformatory order made by a juvenile court shall be carried into effect, except as provided in subsection (2) , until the record J7 of the case or a certified copy thereof has been transmitted to and the order confirmed by the High Court. (2) Any juvenile with respect to whom a reformatory order has been made shall be conveyed forthwith to the receiving centre without awaiting the confirmation of the order by the High Court. In section 2 of the Juveniles Act, a ' receiving [2s1 centre' was defined as being "any reformatory or part thereof declared to be a receiving centre". Going by Section 94 of the Juveniles Act, even if the [26J reformatory order _had not been confirmed by the High Court, the 1st appellant should have been conveyed to a reformatory pending that confirmation and not held at a prison . We agree with counsel for the 1 appellant that [211 sL because of the delay in the confirmation of the order against the 1st appellant, the High Court should not have confirmed it because of the circumstances prevailing at the time of confirmation . JS Following the confirming the order, the 1 st appellant c201 was going to spend a total of 8 years in custody because the 4 years duration of the order, only started running on the date of confirmation. The 8 years the 1 st appellant would have spent in c291 custody following the confirmation, is a year above the maximum sentence for the offence he was found guilty of committing . We find that outcome to be unjust and we set aside [3oJ the confirmation of the reformatory order . VERDICT We allow the 1 st appellant' s appeal against sentence . c311 In its place, we impose a 1 year probation order pursuant to Section 3 of the Probation of Offenders Act. The probation order will be with effect from the date c321 of this Judgment . J9 In the case of the 2nd appellant, we set aside the C33J Conviction. We find it inappropriate to order a retrial, and consequently, we discharge him. C.F.R. Mchenga DEPUTY JUDGE PRESIDENT (lli II ~ ......................... ............ P.C.M. Ngulube K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE