kessy john vs republic 1985 tzca 16 23 july 1985

IE THE COURT OF APPEAL OP TANZi*NIA AT iUtUSHA C O R A M : MUSTAFA. J -A,.; MiiKAME, J.A. And OMAR, J . A . CRIMINAL APPEAL NO. 100 OF 1985 K 3 S S Y JOHN’ . .......... APPELLANT VERSUS THE R E P U B L I C . ..........RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) (Mwakibete, J.) dated the 30th day of November, 1984 in Criminal Sessions Case No. 15 of 1984 JUDGMENT OF THE COURT MUSTAFA, J . A .: The appellant was convicted of manslaughter in the High Court after a trial on a charge of murder and was sentenced to 12 years imprisonment. He is appealing against sentence only. The appellant was convicted solely on the evidence "based on the (lying declaration of the deceased. The deceased had alleged in the declaration that during a drinking session in the appellant's house, the appellant had robbed or tried to rob the deceased of Shs. 30/- and in the ©ourse rf had attacked and injured the deceased. The deceased died several days later from the injuries received at the hand of the appellant, The cause of death, according to the post mortem report, was dislocation of the first thoracic veterbra and tota?. transection of the spinal cord at that level. The appellant was found by the trial judge to have been drunk at the material time and on thatc;rouuil .-v../ ............/2 . - 2 - ground the judge Lad convicted i'fre appellant of manslaghter instead of murder. The appellant had been in remand sin«a 1980, and was convicted and sentenced in November, 1984. That would mean "hat the appellant had already been in custody for 5 years before he was sentenced to serve a term of 12 yea^.3 imprisonment. It seems that the trial judge had considered intoxication on the part of the appellant an aggravating circumstance in imposing the sentence. We do not think that is correct. We would have thought that intoxication in a criminal offeree is more concerned with the formation of a specific mental element in the commission of an offence. We appreciate that we do not lightly interfere with a sentence imposed by a trial court. However on a consideration of all the factors we are of the v i e w that the sentence imposed is too severe. We reduce the sentence imposed to 5 years imprisonment. The appeal succeeds. DATED at ARUSHA this 23rd day of July, 1986= A. MUSTAFA JUSTICE OF APPEAL L. M. m a e l a m e JUSTICE OF APPEAL A. M. A. Q M k R JUSTICE OF APPEAL . ../ 3 - 3 - I certify that this is a true copy of the original. (J. H. M30FFE) DEPUIY RE G-I STRAfi.