20050805 TZCA Dar es Salaam

I • IN THE COURT OF APPEL OF TANZANIA AT DAR ES SALAAM (CORAM: MROSO, IA., MUNUO, 1A., And KAJI, J.A.) CRIMINAL APPEAL NO. 16 OF 2000 YAHAYA HASSAN @ GODSON HIZA .................................. AP4LLANT VERSUS THE REPUBLIC .............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Manehto, 3.) • dated the loth day of July, 2000 in Criminal Sessions Case No. 27 of 2000 JUDGMENT OF THE COURT MUNUO, J.A.: In Criminal Sessions Case No. 27 of 2000 in the High Court of r Tanzania at Dar es Salaarn, the appellant, Yahaya Hassan alias Godson Hiza, was, on his own plea of guilty, convicted of manslaughter c/s 195 of the Penal Code for unlawfully killing one Salurn- Turnu on the 22nd March,. 1998 at Kisarawe. He was sentenced to 22 years imprisonment. Aggrieved by the sentence, the appellant lodged this appeal. 2 On the fateful day, the deceaséd and the appellant happened to be drinking at a pombe shop at Kisarawe. The latter asked the former for a cigarette. For some unexplained reason, the appellant was infuriated because the deceased turned down his cigarette request. The appellant then confronted the deceased. A fight broke out but the same was quelled by one Athuman Hassan. The deceased who was accompanied by his wife left the pombe shop. After the appellant left the pombe shop, the said adversaries again encountered each other and a second fight ensued. During the second fight, the appellant stabbed the deceased in the chest, rupturing the heart, causing instant death. The appellant was arrested and accordingly charged with the offence of manslaughter c/s 195 of the Penal Code. The postmortem examination report was tendered at the trial as Exhibit Pt. As stated earlier on, this appeal is against the sentence. Mr. Kiwango, learned advocate, represented the appellant. Mr. Ntwina, learned State Attorney represented the respondent Republic. Counsel for the appellant faulted the learned trial Judge for imposing a manifestly excessive sentence of 22 years imprisonment 3 onì the appellant, who pleaded guilty to the charge, was a first áffëhdr, a family man with dependants to care for, and a medical assistant whose services were required by the community. Urging us to rctte the excessive sentence of twenty two years imprisonment irëd on the appellant, counsel for the appellant cited Archbold, :PiEad1ngs, Evidence and Practice in Criminal Cases, Thirty Ninth Edition, London Sweet & Maxwell, Chapter 5 which allows a court of appeal to interfere with the sentence if it is unlawful or excessive. He further cited the case of NiUson versus Republic (1970) E.A. 599 at Page 602 wherein the Court of Appeal of East Africa held that when an accused pleads guilty, he would be entitled to a lenient sentence. Mr. Kiwango who cited the case Of Ogalu sb Owoura versus Reginam (1954) 21 E.A.C.A. 270 in which the Court of Appeal of East Africa held that an appellate court will interfere with the sentence where a trial court acted on a wrong principle or overlooked a material fact or if the sentence is manifestly excessive. Mr. Ntwina, (earned State Attorney supported the sentence imposed on the appellant on the ground that the appellant used a lethal weapon, a knife, which he deployed on the unarmed victim, 4 the decese. The brut1 kiUing,'' the learned State Attorney su -itd - às 111 cOld blood so the sentence was justified in the circumstances and should not be reduced. Mr. Ntwina urged us to dismiss the appeal for want of merit. The issue before us is the propriety of the sentence of 22 years imprisonment imposed on the appellant by the trial court. We wish to begin by casting our eyes on Archbold, Pleadings, Evidence and Practice In Criminal Cases, cited supra, at paragraph 940 which guides an appeal court in determining appeals on sentence by stating: 940. Principles on which court acts. In exercising its jurisdiction to review sentences the Court of Appeal does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence. The sentence must be manifestly excessive in views of the circumstances of the case or be wrong in principle before the court will interfere . ........ H - 5 The cases cited by counsel for the' appellant reflect the above principles. In the case of Ogalu s/o Owoura versus Reginam (1954) 21 EACA 270 the then Court of Appeal of East Africa reduced the sentence of ten years with hard labour for manslaughter to a term of six years imprisonment with hard labour. At Page 271, the Court held: An appellate court will only alter a sentence imposed by the trial court if it is evident that it has acted on a wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed-in previous cases of a similar nature, while not being precedents do not afford material for comparison. Appeal allowed, sentence reduced to six years imprisonment with hard labour. The case of NiHson versus Republic cited above by counsel for the appellant, held that the fact that an accused pleaded guilty to the charge should be taken into account in assessing sentence. At Page 602, the Eastern Africa Court of Appeal observed: 6 -- Another factor in the cãse, which is well settled and which should be taken into account when determining a question of sentence, is that the appellant frankly pleaded guilty to the charge, thereby saving the prosecution the trouble and expense of proving its cases and avoiding the possibility of the appellant securing an unmerited acquittal through a technical or procedural error. To this must be added the fact that the appellant has no prior conviction for any offence. ...... Neither of these facts were referred to by the magistrate in his judgment and they may possibly have been overlooked. In this case, we are of the considered -view that the sentence imposed on the appellant was manifestly excessive. One, he had been in custody for about two and a half years. Two, he pleaded guilty to the charge which not only saved the court's time and expense, but also indicated contrition on the part of the appellant. Three, the appellant was a first offender. We are, however, not persuaded that the appellant's medical profession and his family responsibilities are factors for due consideration because such factors apply to the victim as well. More importantly, being a medical 7 assistant, the appellant should dem&strate how to save and not eliminate life. In the light of the, above, we allow the appeal on the ground that the sentence of twenty two years imprisonment is manifestly excessive. We accordingly reduce the sentence of twenty two years imprisonment to ten years imprisonment. DATED at DAR ES SALAAM this 5th day of August, 2005. J. A. MROSO JUSTICE OF APPEAL AN jj% I 0 t \ ..E.N.MUNUO JUSTICE OF APPEAL S.N.KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.M.Pc1YIKA) DEPUT'RE'GISTRAI