Aloyce Petro v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA (DC) CRIMINAL APPEAL NO. 25898 OF 2024 (Arising from Traffic Case No. 000022278 of 2024 at Kaliua District Court Case Reference No. 202408072000022278) ALOYCE S/O PETRO ………………………………..…………………… APPELLANT VERSUS THE REPUBLIC ……………………………………………………...….… RESPONDENT JUDGMENT 10th and 20th March, 2025 MIRINDO, J.: [1] Aloyce Petro was riding a motorcycle on 2nd May 2024 and upon reaching at a pedestrian crossing at Tankini area along the New Stand Road in Kaliua District, he knocked down two boys. He knocked a boy aged five years called Paulo Benedicto and killed him, and Augustino Benedicto, aged seven years who survived the accident. He was charged before Kaliua District Court with six counts of traffic offences, he entered guilty pleas to five counts, and he was sentenced to undergo various terms of imprisonment, the maximum being four years. The sentences of imprisonment were ordered to run concurrently. He was equally ordered to compensate the victims “families.” He was dissatisfied with the sentences imposed and appealed to the High Court sitting at Tabora. At the hearing of the appeal, Aloyce Petro was represented by Ms. Esther Ngasa Kienze, learned counsel, and the respondent Republic had the services of Ms. Suzan Barnabas and Ms. Aziza Mfinanga, learned State Attorneys. 1 [2] In the first count, the appellant Aloyce Petro was charged with causing death through dangerous driving contrary to sections 40 (1) and 63 (2) (a) of the Road Traffic Act [Cap. 168 R.E. 2002]. The trial court sentenced him to a four-year term of imprisonment. The appellant complains in his first ground of appeal that he should have been fined as he was a first-time offender. The appellant’s counsel, Ms. Kienze, referred to the cases of Calvin Rabison Munuo v R (Criminal Appeal 4 of 2022) [2022] TZHC 531 and Joseph Komanya v R (Criminal Appeal 56 of 2021) [2021] TZHC 3764 for the contention thar the imposition of the fine was the first option that should have been imposed on the appellant. In defence of the sentence imposed by the trial court, Ms. Mfinanga, learned State Attorney, asserted that the complaint had no merit insofar as the provisions of section 63 (2) (a) imposes a minimum sentence of three years and imposes fine as an additional and discretionary sentence. [3] Section 63 (2)(a), the sentencing provision for causing death by dangerous driving, imposes a mandatory minimum sentence of three years with an optional sentence of a fine. I have taken the opportunity to examine both precedents referred to by Ms. Kienze and it is clear that they deal with sentencing powers under section 63 (2) (b) and have no direct application to the sentencing powers under section 63 (2) (a). While I agree with Ms. Mfinanga that that the offence attracted the mandatory minimum sentence of three years, there were no grounds to sentence the appellant to the four- year imprisonment term above the minimum sentence of three years. In Shabani Menge and Another v R (Criminal Appeal No. 182 of 2007) [2012] TZCA 279, a district court convicted two accused persons of armed robbery and sentenced each of them to thirty-five years 2 of imprisonment. They unsuccessfully appealed to the High Court. On a second appeal to the Court of Appeal their appeal against conviction was dismissed but the sentences were varied. The Court of Appeal highlighted factors necessitating a higher sentence than the minimum one: …We must be quick to add here that the minimum mandatory sentence means that a court may impose a higher sentence if it believes that the convict deserves a severer sentence. The trial magistrate must...show and preferably in writing, why he arrived at such conclusion. A higher sentence than the minimum prescribed would, in practice, be imposed by considered factors such as the gravity of the offence and the way it was executed; the prevalence of similar offence and the need, on the part of the court, to impose deterrent sentences to send the right signal to the offender and to potential offenders as well as to society at large, and the like…The trial court has to take into account as well, what both the prosecution and the accused say in their records and mitigation, respectively. He should not…allow himself to be influenced by external, extenuating factors. [Emphasis original] Despite the fact that the victims suffered cut wounds resulting in loss of a lot of blood and the crime was a serious one, the Court of Appeal held that the mandatory minimum sentence of imprisonment was commensurate with crime. [4] The Court of Appeal addressed a similar point in Ngaranus s/o Kaporinyi v R (Criminal Appeal No. 111 of 2010) [2013] TZCA 479 where the appellant along with other two persons were each sentenced to forty years of imprisonment upon conviction for 3 armed robbery on their own guilty pleas. The Court of Appeal held that in the absence of aggravating factors where the accused is a first offender who has entered a guilty plea, a trial court has no jurisdiction to impose a sentence above the minimum one. The Court ultimately reduced the sentence of imprisonment to the mandatory minimum of thirty years. [5] In view of these authorities, I conclude that there was no justification for the imposition of the sentence of four years imprisonment given that the appellant was a first-offender who pleaded guilty to the charge and was a young person aged twenty-two years. It follows that I quash the sentence of four years imprisonment and substitute for it the mandatory minimum sentence of three years. [6] In the second ground of appeal the complaint is that the appellant should have been sentenced to pay fine in respect of the second, third, fourth, and sixth counts. In third count, the appellant was charged with dangerous driving towards Paulo Benedicto contrary to sections 42 (b) and 63 (2) (b) of the Road Traffic Act and in the fourth count related to causing bodily injuries through dangerous driving to Augustino Benedicto contrary to sections 41 and 63 (2) (b) of the same Act. [7] The learned State Attorney, Ms. Mfinanga, conceded that the trial court was in error in imposing the sentence of imprisonment instead of a fine in view of the clear provisions of section 63 (2) (b). She argued nothing in respect of the second and sixth grounds of appeal. 4 [8] The sentencing provisions for the second and sixth counts are found under section 113 (4) of the Road Traffic Act. The section imposes the sentence of fine of two thousand in the first instance and so the trial court erred in imposing sentences of imprisonments of six months for the second and sixth counts. [9] Therefore, as the appellant is a first offender who also entered guilty pleas, I order him to pay minimum statutory amounts of fine as follows: (a) 2,000/= TZS for the second count, (b) 15,000/= TZS for the third count, (c) 15,000/= for the fourth count, (d) 2,000/= for the sixth count. [10] In the last ground of appeal, the third one, the appellant complained about the compensation order imposed by the trial District Court of Kaliua. The trial court ordered him to pay compensation of 2,000,000/= Tshs to the family of Paulo Benedicto (the deceased child) and 1,000,000/= Tshs to family of Augustino Benedicto. The learned Appellant’s Counsel argued that this was an abuse of power by the trial court. The learned State Attorney rightly pointed out that compensation orders are permissible under the provisions of section 25 of the Penal Code and section 348 of the Criminal Procedure Act, and so, the orders were properly made. [11] From the record of the trial court it is uncertain if the appellant was accorded an opportunity to mitigate the prospective compensation order. Still more, in the circumstances of this case where the appellant entered guilty pleas and facts constituting 5 these traffic offences have not been fully canvassed by the criminal court, the interests of justice demands that the determination of compensation though permissible under section 25 of the Penal Code and section 348 (1) of the Criminal Procedure Act, may appropriately be determined in a civil action. Consequently, I quash the compensation order and the aggrieved party is at liberty to institute a civil action in a court of competent jurisdiction. [12] In conclusion, the appeal is partly allowed. The sentence of imprisonment is retained for the first count but varied to three years. For the second, third, fourth, and six counts, the sentences of imprisonment are quashed the appellant is ordered to pay to different amounts of fines. DATED at TABORA this 20th day of March, 2025. FRANK M. MIRINDO JUDGE 20/3/2025 6 COURT: Judgment delivered this 20th day of March 2025 in the presence of Mr. Amos Gahise holding brief for the appellant’s counsel Ms. Esther Ngasa Kienze, and Mr. Steven Mnzava for the respondent Republic. B/Clerk: Omari Mkongo present. . FRANK M. MIRINDO JUDGE 20/3/2025 COURT: Right of appeal explained. FRANK M. MIRINDO JUDGE 20/3/2025 7