THE Court of Appeal has upheld the conviction and life sentence imposed on a Lusaka man who sexually abused his five-year-old nephew.

Court of Appeal deputy judge president Chalwe Mchenga and justices Betty Majula and Mwiinde Siavwapa found no merit in the appeal by Victor Mulungwe against the sentence, saying the trial judge was entitled to impose the sentence.

They added that the said sentence of life imprisonment did not come to them with a sense of shock, as being excessive.

In this matter, Mulungwe appealed to the Court of Appeal after High Court judge Elita Mwikisa sentenced him to life imprisonment for sodomising his five-year-old nephew.

Passing verdict, Judge Mwikisa had wondered how an uncle could defile his young brother’s son, noting that the child had suffered traumatic pain that one could not even comprehend.

Mulungwe was in this matter charged with unnatural offence.

Particulars of the offence were that on November 25, 2014 in Lusaka, Mulungwe had carnal knowledge of a child against the order of nature.

He had denied the charge but was convicted at the conclusion of the State’s evidence.

Evidence before the trial court was that on November 25, 2014, Mulungwe’s sister who lived on a farm with him, their father, brother and nephew, returned home around 18:00 hours but found that her five-year-old nephew was not home.

After looking for the boy, she found him in Mulungwe’s house which was on the same farm.

Mulungwe, who is one of her two brothers, was sitting on the bed with the small boy standing in between his laps.

The small boy looked distressed and when talked to, did not say anything.

Mulungwe’s sister took the boy away to the main house and tried to talk to him but he still did not answer and remained distressed.

The next day, the boy went to school but on his return, he complained that his private parts were painful.

After being checked by his grandfather (the convict’s father), it was discovered that he had cracks on his anal passage.

The boy was taken to the hospital by his father (Mulungwe’s brother) where it was confirmed that he had been sexually abused.

During trial, the boy was called but failed to testify despite being counselled.

The trial magistrate observed that the boy was scared and withdrawn and was avoiding eye contact with Mulungwe.

In his defence, Mulungwe admitted having been found with the boy in his house and that he was found standing between his legs but denied sexually abusing the minor.

The trial court, however, found that the medical report corroborated the fact that the boy had been sexually abused.

In his appeal to the Court of Appeal, Mulungwe advanced three grounds of appeal, arguing that the charge he was facing was not proved by the prosecution beyond reasonable doubt and that the sentencing judge failed to give him credit for being a first offender when she imposed the maximum sentence.

But in its judgement, the Court of Appeal dismissed the appeal and upheld the conviction and sentence.

“Having examined the circumstances in which the offence was committed in this case, it is apparent that there were aggravating factors that entitled the court to impose a sentence other than the minimum sentence. The victim of the offence was only five years and the appellant was his uncle. Instead of being protective, he decided to abuse him. Further, there was evidence that the small boy became traumatized after the incident,” said justice Mchenga.

“In the circumstances, a sentence of life imprisonment does not come to us with a sense of shock, as being excessive. We find that the trial judge was entitled to impose the sentence. We find no merit in the appeal against the sentence and we dismiss it.”