[2020] KEHC 1249 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

CRIMINAL APPEAL NO. 4 OF 2019

RAIMA RAGAH HASSAN..............................APPELLANT

VERSUS

REPUBLIC.....................................................RESPONDENT

Coram: Hon. Justice R. Nyakundi

Gekanana for the appellant

Mr. J. Mwangi for the state

RULING

Raima Ragah Hassanhas appealed to this Court seeking a revision of her twenty five year period sentence of imprisonment for the offence of grievous harm contrary to Section 234 of the Penal Code. At the time of plea, appellant pleaded guilty to the charge and the trial Court considered the offence and circumstances in which it was committed to be a reckless and unlawful nature calling for a stiffer long custodial sentence.

The appellant has been in custody for about 2 years and the appellant submissions for a revision hinges on the principles enunciated in Francis Karioko Muruatetu v R {2017} eKLR based on the following grounds:

(1). That the Learned trial Magistrate failed to take into account that the appellant was remorseful for her actions and the reason she pleaded guilty.

(2). That on the other hand the impugned sentence was passed without taking into account the pre-sentence report.

Determination

This appeal against sentence in a case of this nature is governed by various considerations. As a starting point the question to ask is whether the sentence order complained of is within the jurisdiction of the trial Court to impose as provided for in the applicable statute.

Second, would be whether the Court in determining the appropriate sentence considered relevant aggravating factors both general and those specific to the type of offence in issue. Thirdly, whether the mitigating factors and personal circumstances would have resulted in a lower sentence. Fourthly, whether in the totality of the evidence the sentencing Court ensured that it is proportionate to pass the sentence to punish the offending behavior of the appellant.

Case Law

When imposing a sentence the persuasive dictum in Ayami v R {1990} 13 MLR 19 SCA held interalia:

“In considering the appropriateness of a sentence, it is imperative to evaluate the extent of the crime, the effect on the victim or victims, and the circumstances in which it was committed and came up with a sentence which is appropriate in that particular case. The Court further noted that in considering punishment, the Court should exercise a measure of mercy.”

In the same Court in R v Keke No. 404 of 2010 it was stated that:

“In relation to young offenders and first offenders, it is wrong to use them for general deterrence, which is using them as a means to deter others. Such sentences are wrong in principle. They compare using life as a means to an end.”

Power of the Court on appeal and suggestive factors to take into account in crossing a significant threshold to interfere or affirm the impugned sentence. The jurisprudential framework on this issue is now well settled. In Ogolla S/o Owuor v R {1954} EACA 270:

“The Court does not alter a sentence unless the trial Judge has acted upon wrong principle or overlooked some material factors. Typically as held in Shadrack K. Kogo v R Cr Appeal No. 253 of 2003, the Court of Appeal said: “Sentence is essentially an exercise of discretion by the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the sentencing Court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (Sayeka v R {1989} KLR 306).

In the instant case, it emerges from the record that appellant is the mother to the victim of assault. The punishment as inflicted is said to have been motivated by a desire to correct the truancy behavior of the victim but incidentally appellant inflicted serious harm. This to me was a deliberate assault against a child of tender years from a person with the responsibility to protect and ensure the best interest and welfare of the child is realized.

It is not in dispute when considering the sentence, the trial Court factored in the seriousness of the offence and the appellant’s culpability in breach of trust as a parent to commit the offence.

From a preliminary review of the record the appellant had no previous conviction and although her action indicated higher hostility to the victim. There are other mitigating factors worthy of consideration. The particular facts of this case are that the appellant is a mother to the victim. She is remorseful for the offence and the psycho-traumatic affect her culpability and harm occasioned to her own child. The degree of harm and violence meted out against her defenseless, innocent daughter was uncalled for and did reflect the sentence imposed by the trial Court.

In my view to considering the post-conviction pre-sentence report there is sufficient prospect of rehabilitation of the appellant and appropriate measures ought to be taken to promote victim – offender mediation to restore corresponding trust set out in the probation report.

Its unavoidable that certain steps ought to be taken to address the offending behavior which would result in an upward adjustment and improvement of relationship of mother/child reunion. The extent of the problem with this sentence is the precise impact of the appellant long incarceration would have on her children including the victim. The stigma surrounding the offence to both the victim and the appellant adds to the feelings of isolation.

Having a parent found guilty and sentenced to 25 years imprisonment, must have come as a shock to the victim and the residual fear of separation and alienation for that period of incarceration. Speaking, generally to the facts of this case, incarceration of the appellant serves more of an answer to the state for her wrong doing than to meet and how best to repair the harm caused to her child. A destination which need to be clarified is whether the psychological effects of separation, risk of relationship breakdown, risk of the victim not being taken care of by the foster institution and her vulnerability are compelling interest that could have weighed against the long incarceration period.

In my view, a trial Court has a judicial duty to pass sentence that takes into full account the best interest of the victim as defined in Section 4 of the Children’s Act.

(1). It would be fair to say that the Court was obliged to mirror on the appellant’s compatibility with the victim.

(2). The appellant, abilities, character and temperament and the impact thereof on the victim’s needs and desires.

(3). The appellant’s insight into, understanding, and sensitivity to the child feelings.

(4). The appellant’s ability to provide for the victim emotional, psychological, well-being and security etc.

The trial Court must therefore guard against relying on factors which only influence imposition of incarceration sentence though this was a criminal process. It was necessary for the Court to intervene if its deemed to be in the interests of the victim. As it relates to this sentence, a trial Court was under an obligation to strive to minimize any such disruptions as a result of the offending behavior of the appellant.

In recognition of the importance of these principles and the issue of incarceration of the appellant as a care giver to the victim, the Court looks at reformation, and integration of the appellant as a balancing act to have range of sentence reduced to a short term period. With this in mind the appeal on sentence partially succeeds by reviewing the period of 25 years and substituted it with a lesser period of 5 years with effect from 8. 10. 2018. The measure to revise the sentence is designed to meet the legislative objective to punish crime and criminal conduct of the appellant and to rehabilitate the offender from her criminal disposition to become a responsible and accountable mother to her children.

In addition, the Director of Probation and after care services in conjunction with the Director of Children Services should offer appropriate remedial assistance during the interim period to lessen the culpability of the appellant in future with emphasis on giving due respect to dignity and paramount best interest and welfare of her children as human beings. The rehabilitation road map by the two entities should cover a wide range of activities psychological intervention for both the victim and the appellant, counselling and cognitive behavior change to truly ensure parent/child relationship to reduce the risk of re-offending of the appellant. Accordingly, the appeal on sentence partially succeeds. Those are the orders of the Court.

DATED, SIGNED AND DELIVERED AT GARSEN THIS 3RD DAY OF DECEMBER 2020

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R. NYAKUNDI

JUDGE