19891213 TZCA Mwanza1

• • m THE cornT OF .AJ?PJlli\L OF TAffZlJH.A 11T MWAWZA MilIC.,'tlvIE, J ~ Ao_!} 0r-L-1R 2 J. A. , And MFKL JL)!".l.. J • .A. ) CRil,iTILU. ..U'P:illfa.L NO. 37 OF 1989 CLIDP.Hli.CE I-IJJ:W-iDO. • • • • ~ • APPELL.ANT And THE .REFfJ---:BLIC. ~ ., o • 0 ,. • .. • • • • • 0 RESPOlillENT (A11:peal from the· conviction of t:J.e }1:i.g~.1 Court of 'Tanzania at Ta1Jo1,a) (Korosso, J,) dated the 5th da;y of Decem1Jer, 1988 in Criminal Sessions Case No. 21 of 1988 JUDGr,IENT OF Tl.IE COURT The appellant CLEDPRAS M.Ill{~IDO was cha2Ged with and convicted of tlle offence of ·rfanslaughter ·before the High Cou.i."""i sitting at Tabora (Korosso,J.), and was sentenced to 20 years imprisonment. He appealed age,inst th_is sentence complaining that. it is excessive taking· into account the circumsta.i.vices m which h~ killed the deceased.. · In his mitigation, the appellant told t}1e trial Court that he attacked the deceased wl1ile he was still very .axlf!7Y on finding him with his ·long time girlfriend one Mary Paul. He said that he had been having a loite affair with Mary since 1984 and that it pai..~ed him to see her with another man. In :imposing t).1e sentence of_ 20 · yea.rs :imprisonment,• the lea.i.,ied judge remarked that t~.e appellant had no rig.ht to feel provoked to -·· the extent he claimed to be, because fii:,-st, there was no evidence that he was wholly maintaining the girl, secondly that s,.'le was not his wife .as he had paid no cattle or anything, and thd in any case :M:ary' s behavi~ur was n,iit totally unexpected as t}1e appellant chose to deal ,. .• '.f -.,; ...... · -- 2 Lastly, the learned jucli3e found as an agc_;;ravt1ting :feature the fact· thnt tl1e. appellant dealt the fatal 'blow on tl1e a_eceased after tb.e initial fight had -Deen settled and in fact t~:.e deceased was walking awa;y- from the scenee • i • · tie agree enti:cely ,-Tith the learned trial judge that the act of the appellant fatally assault irig the deceased after the initial fight had 1Jeen settled, and ul1en the dece1?-sed was peacefully walki:r.g- away, · is a seriotts agf;"I'v,vating featuxe~ Indeed t:::...e appellant I s action was almost cowardly in attacking a ma,.,.'1 f:;:-om 1Jel1L1d. But at the sane time, we think the lea.rned judge should not have totally disregarded the p.rovoce,tion suffered iJ3r t:1e appellant at seoil1g his long time lover i...'1 the company of a.i.1.ot::.:cer man, on the basis t:;.at the1~e was no evidence t~1at he was wholly ma:inta:inil1g· her, that she w2.s not his wife and that s:1c was a girl of "weal{ mo1,aJ_ fibre"• Sii.<-ice t:ie:..:-e was no evide11ce either way, we feel the safer aJ_ ternative wt,s to assume that t~1e . ' appellant was providinc; some sort of mainta,i112:,11ce particularly as the rel::;,tionship had endured for so long,_ and with respect, we think tlrere was no evidence on wh:Lch tl1e learned judge 02.sed his assessment of Mary as a girl of weaJc moral fibre. In favour of the appellant, was the fe,ct thc,t he was a first offender wuo pleaded cuilty thus showing contrition and remorse for ' wb.at he had done in i1i12;er. In a crimi..'1al trfo..l, a..n accused person who_ shows remorse does not q_ualify for a dete:i:o:;:-ent and retributorf sent.ence as was meted out in this case. Remo:i'se is a sign of evidence of j:>eadiness to refo:i."'fu, a.nd the :res1.,1.l ting s~nte~1ce ·sllovJ.d reflect tl.:i.is. Mr. J3ila..ro vi:,o a:m?eared for the repu1Jlic con,cended that in the circumstances of ti.1is oLse the sentence is excessive. 3 For these reasons, we allow the appeal, set aside the sentence of 20 years im:pi,isonmcmt a,.'1.d instead sentence t:'.J.e appellant to Six years :imp:risonment effective from the date ·11e was sentenced in the I:Iigh Court. DATED at MWJ.JQ this 13th day of December, 1989. / L• M. IV".1.AK.AME JUSTICE OF APPEAL A.M.A. 01lli.R JUSTICE OF APPEAL, :J..-\ ,;;,;) L ... '• ! / ! ~' .•.. (So Se fALJAGE) DEPUTY REG~ ....... .' . ,