19890408 TZHC Dar es Salaam

... tN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION II ·.HIGH COURT CRIMINAL APPEAL NOo 163 OF 1988 . . ORIGINAL CRIMINAL CASE NO., 11:04 OF 1988 OF THE DISTRICT COURT OF ILALA DISTRICT AT KISUTU BEFORE MR 0 CHILONJI, RESIDENT MAGISTRATE :~· ~ . n.P .P. • 0 • ;o • e • 0 • 0 0 0 o o o O • 0 0 ~ 0 0 o O O .0 ., • 0 0 0 0 0 0 t> 0 . 0 0 0 0 • 0 0 e • a. e Al?P E:t,L1\N"T versus JUDGMENT . MSUMI, J. The Republic is appealing against the sentence of ,'six months .imprisonment and compehsation orner for shs.2000/= imposed against the respondent as being inadequate~ on the other hand the respondent i~ cross-appealing against the conviction an~ the sai~ compensation ... o·rder. According to the rec0r~, appellant plea0e~ guilty to the charge · of Unlawful wounding contrary t,:, secti.on 225 of the Penal Code. He was · aecordingly convicte~ an-:! sentenced t,:,. six months imprisonment. He was also ordered to pay the complainant shs.2000/= as compensation. m the statement of the offence the description of the offence is stated as Grievous Harm. However, in the particulars of the offence it is alleged that respondent din unlawfully cause griev6us harm. In reply to the charge~ responrlent is recoriier1 to have sairl "It is true". And later on the public prosecutor gave a detailer1 acc,,unt Jf the incident which led to the commd.ssioh of the alleged offence an~ '1n reply to the facts res- pondent is recorder1 t-:> have sai-:1 "I arlmit the facts as truett. In the · cross appeal, the learnerl counsel for the responAent is arguing that the· eonviction was based on n qu:i,.rocal plea of guilty. The respondent's· replies to bo.th, the particulars of the charge an'"' facts were not unequivocal. The learned counsel farther challenges the order f.1r c,,mpensation. He is of ·the opinio:rm that c0mplainant S\J.bstantially contributed to his injuries hence the order for c0mr;cns :::tion was· unca·lle,; f0r. since tl)e appeal is against senten':e while the cr~-ss-appeal is against, · inter alia, conviction, it is lo.gical 'to ·begin with the latter., Bes.ides the actuai.words uttered by the accused in reply to the charge, the nature of the offence .and the circum.str1n~es· surrounding its commission should 2.lso ·be considered in deciriing. whether or not the plea ,:>ffereri by the cccusea· ·is unequivocal~. There are no approved wo~ds, as it were, which mus~he .~ ••• /2 '··. - 2 - used in reply tv_ the charge in ,'.)r<i-er· try c')nsJitute a plea of guilty. Depencting on the nature of the offence a set qf words may or may not .constitute a plea of guilty. Hence the words ,+it is true" may. or may not amount to a plea of guilty·, For example such reply cannot corrsti_tute a plea of guilty to offences composed of S)me technical ingrenients - such as forgery, receiving stolen pr1perty an~ ,)thers. In· those types of offences a plea of guilty is only sustainable if the words use0 by the accuser:l in reply to the charge ·are such that they give unmistaken "impression th.:rt accused is I admitting to each an0 every ingrenient of the offence, on the other hand there are the types of offences- which c:an -be adequately explaine~ in the statement of the offence alohe. In other words apart fr1m the factual ~etails, the particulars of the offence co not contain any technical information ·other than the ones appearing in the statement of the offence. A typical example of such offences is the obe in the present ease. A charg'e of Unlawful wounrling rloes not require frther technical elaboration in 6r1er t1 enable one·un~erstand its nature. Hence words like "it is true", "I admit" an<l others of · ·similar brevity '.coupled with a<lequa te narration of the facts pertaining to the commission of the alleged offence are quite sufficient-to constitute a plea of guilty. I have significantly noted in this case that prosecution have omitted the word 11 unlaw- ful11 in the statement. But I have also note~, with even more sig.. ' . . nificanee, the fact that in the particulars.of the offence the alleged wounding has been specifically state<l t-) be unlawful. rt is therefore clear in my minrl that when responr-1ent pleaded to the Charge he knew that the allegation ag~inst him was not merely woun~ing the c0mplainant but wounning him without lawful excuse. And the facts of the case which respon1ent admitted without reservation, do not suggest the existence of any lawful justifi- cation for the wounding. In eonclusion-this court is of the opinion ,:hat respondent's plea was unequivocal hence he w_as properly convicted. · To be mild, I am amazer! by the argument of the learned· counsel for the responctent that c0mplainant substantially contributed to his injuries. I say I am amazeo ~ecause there is nothing in the record which supports this argument. Neither in the fact$ of,the case nor in the respondent's reply i~ it suggested, albeit by inference, that complainant wa~ to a certain extent blamable for his injuries. on _o • • • • • • )3 ..• 3 ·- .,-1 • 'the contrary .respondent is rlistinctly potrayed culpable through out ,t..._1.Xlc:1..ae:nt which culminated to the alleged offensive wounding·. \" ', ;. ., _ . Turning to the first ground of appeal, I respectfully share the Republic•s. concern on the ina0equancy of the . . sentence. And ram saying this while fully cognant of the well established legal principle that except fJr offences for which there are statut~ry minimum or man~atJry sentences, a trial court has ciscretion to select a sentence that seems appropriate in the circumstances of each inrlivirlual caseo And an appellate court ~oes not orninarily interfere with this discretion unless it is evident from the record that in exercising its ~iscretion the trial court act~d bn wrong principle or overl0oker:l sorre material factors or in view of the circumstances of the case the sentence is manifestly execessive or ina~equate so that it in~uces a sense of shock. (Ogalo S(O Owoura v R (1954) 21 EACA 270; R v Shershewsky (1912) (CA 28; TLR 364)0 In the present case the offence wi thwhich respon-ient stands c )nvicted attracts a ma~imum of seven years imprisonment. And consequent to respon~ents offensive act, c,mplainant has completely lost one of his eyes. As per the facts of the case and using the words of the learned trial magistrate himself, the unpr:)Vokeii attack on the responAet?-t was brutal. Taking into acc0unt all these factors it is evi~ent the sentence of six months imprisonment is so manifestly inadequate that it induce~? ~pnse of a shock hence tainting the whole determination of the case with injustice. What has been said against the sentence can also be said in support uf the c,.)mplaint that the c,-,mpensation of shs. 2000/= is quite inadequate'o _rt is tantamount to a mockery that complainant shoul,., be pai~ shs_. 2000/= for a total loss of his eye. rt is worse than not ordering for compensation at all. The world is now witnessing the development of new bran.en of criminology un~er the popular term of victimologyo All this time courts have bepn nn 1 ." r: -,ncerneri with the treatment of the offen0er either punitive or otherwise. Under t~e new concept a criminal c0urt is required to pay attention to the plight ~f the victim of crime viz-a-viz his offender. It is arguer! that a victim has a moral and •••• /4 I'. - 4 - . -\~.-~g\1 right to be c,)mpensated by "the wr•Jngdoer. The (' traditional view that a criminal court sh,.)Uln not engnge itself in the exercise of awarrling compensation to a vic- tim of a crime unless there ore some special circumstances is no longer valid. Depencing on the circustances of the case, a criminal court may properly awarrl a victim of crime substantial compensation. With respect the circustances in this case demanc for such or0er. In conclusion, this appeal is allowe<1. The ~entence of siX months imprisonment is set asirle an~, taking into account what the responnent has offererl in rnitigationJ he is sentenced to three years imprisonment inclusive the· six months which he has presumably already served. similarly the order for compensation of shs.20OO/= is ~et asi~e and instead responnent to compensate the complainant shs.5O,OOO/=o 8/4/89 Mr. Simbakalila - for the Republic For the Responctent - Absent.