pdf Ruling on Sentence Osward Chungu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA SUB-REGISTRY AT IRINGA CRIMINAL SESSION 64 OF 2023 (P.I. Case No of 5 of 2023 in the District Court of Kilolo at Kilolo) THE REPUBLIC ......................................................... PROSECUTION VERSUS OSWARD S/O CHUNGU………………………………………….ACCUSED RULING ON SENTENCE Date of Last Order:27/5/2024 Date of Ruling: 27/5/2024 LALTAIKA, J. The accused (now convict) OSWARD S/O CHUNGU and the deceased WILBERT MSAMBA were close door neighbours. They lived in Mahenge Village, Kilolo District, Iringa Region. Until the dreadful day, they lived in harmony with each other. Nothing suggested that one day the accused would terminate the precious and innocent life of his neighbour. It is the prosecution’s story that on 27/02/2023, the deceased, one Wilbert Msamba, went to the house of the accused. He found the accused’s wife outside the house. It was night. When the accused’s wife saw the Page 1 of 7 deceased, she started screaming that she was being chased by him. The accused’s wife was an ex-lover of the deceased. When the accused heard the alarm, he went out of the house to help his wife. He found the deceased there, and a fight ensued between the two. They struggled to possess a panga that was inside the accused’s house. In the course of the fight to grab the panga, the accused injured the deceased on the head with the said panga. Thereafter, the deceased returned to his home, where his neighbors rushed him to the hospital. Unfortunately, he died while being attended to in the hospital. The matter was reported to the village authorities, who informed the police. The police arrived at the crime scene and drew a sketch map of the place. The body of the deceased was then examined by Dr. Gloria Alex, who filled out the postmortem examination report indicating that the death was caused by a severe traumatic head injury. This means the injury affected the brain. As a result of the report, the accused was arrested and interrogated. He confessed to having caused the death of the deceased due to a fight. Page 2 of 7 He also confessed before the justice of the peace. Upon completion of the investigation, he was arraigned and has just pleaded guilty hence this ruling on sentence. It is noteworthy that the state had provided legal assistance to the accused though Noah Utamwa, learned Advocate. This means, among other things, that the plea of guilty was based on sound legal advice (See Adan v. R. [1973] EA 445). The Republic, on the other hand, had entrusted prosecutorial function to Mr. Alfred Stephano Maige, learned State Attorney. No sooner had this court entered conviction than the learned State Attorney and the learned Defence Counsel submitted on aggravating and mitigating factors respectively. Mr. Maige stated that the Constitution of the United Republic of Tanzania protects the right to life for all individuals, and that the convict’s actions had violated this fundamental right. Mr. Maige highlighted that, in murder cases, society expects severe sentences to be imposed on the accused to deter such crimes and prevent them from becoming common. Page 3 of 7 He pointed out that the accused had used a panga, a large and potentially lethal weapon, whereas a lesser weapon could have been used. Additionally, he noted that the deceased was a young man of 21 years, representing a vital part of the country’s workforce. Finally, Mr. Maige reminded the court that the accused was charged with manslaughter, an offence for which section 198 of the law provides a life sentence. Concluding his submission, he respectfully left the issue of sentence for the court's determination. Mr. Utamwa, the learned Defence Counsel, acknowledged the arguments made by the learned State Attorney and stressed that each case is unique, urging the court to treat this case differently. Mr. Utamwa highlighted that the accused had confessed to the crime and had been cooperative since his arrest. He emphasized that the accused was a good citizen with no prior criminal record. Furthermore, the accused had a family, including a wife, a four-year-old daughter, and five other dependents. Mr. Utamwa argued that the environment (meaning circumstances) leading to the fight was crucial, as the deceased had invaded the accused's home at night. In defending his family, the accused had delivered a single Page 4 of 7 blow that resulted in the death, which occurred during self-defence. The learned Defence Counsel noted that after the incident, the accused did not flee or pursue the deceased. Additionally, the accused had been in custody for fourteen months, during which time Mr. Utamwa believed he had learned valuable lessons. Concluding his submissions, Mr. Utamwa urged the court to consider these mitigating factors in determining the appropriate sentence. I have considered both aggravating and mitigating factors. Mr. Utamwa mentioned that the accused is a father to a four-year-old, among other dependents. I am inclined to put it clear that having dependents is not a mitigating factor. This court (Mchome J. as he then was) in the case of Alexander Mpelemba vs. Republic [1990] T.L.R. clearly stated “Having dependents is not a mitigating factor in sentence since the appellant ought to have thought of the dependents and refrained from committing the offence instead of committing the offence and pleading for lenience.” It appears to me that this homicide was motivated by jealousy. Bot the accused and the deceased had, at some point, had a romantic Page 5 of 7 relationship with the wife of the accused. It is not on record why the deceased still wanted to associate himself with the wife of another man to the extent of following her to her matrimonial home. Be it as it may, the force used was too excessive. More human measures should have been taken given the fact that the deceased was a young man in his early 20’s. Guided by the Tanzania Sentencing Manual (see p. 55), the recommended sentence for a homicide of this nature is 4 years in prison. I will proceed and reduce the time spent in custody and consider the plea of guilty that has served this court’s time and state resources. In the upshot, I hereby sentence OSWARD s/o CHUNGU to a two (2) years’ imprisonment term. It is so ordered. E.I. LALTAIKA JUDGE 27/05/2023 Court: This ruling is delivered under my hand and the seal of this court on this Page 6 of 7 27th day of May 2024 in the presence of Mr. Alfred Stephano Maige, learned State Attorney, Mr. Noah Utamwa, learned defence counsel and the convict. E.I. LALTAIKA JUDGE 27/05/2023 Court The right to appeal to the Court of Appeal of Tanzania fully explained. E.I. LALTAIKA JUDGE 27/05/2023 Page 7 of 7