20060529 TZCA Dodoma

I . ~! ......-.-~...:t IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: 'LUBUVA, J.A., MROSO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 136 OF 2003 ELIAS MANGWELA ................... ~ .........•............... APPELLANT VERSUS THE REPUBLIC ................................................. RESPONDENT (Appeal from the Sentence of the High Court of Tanzania at Dodoma) (Kaijage, J.} dated the 23 rd day of September, 2003 in Criminal Sessions Case No. 70 of 2002 11& 29 May 2006 JUDGMENT OF THE COURT KAJI, J.A.: In this appeal, the appellant, Elias Mangwela, is appealing against the. sentence of 18 months imprisonment meted out by the High Court at Dodoma (Kaijage, J.) on conviction of the offence of manslaughter contrary to section 195 of the Penal Code Cap 16. The facts giving rise to the case may conveniently be stated as follows:- 2 The appellant was a w·atchman at the house of one Joseph Chove at Mahomanyika area within the municipality of Dodoma. On 29.3.2001, at about 21.00 hrs, it was rumoured that some robbers might probably invade the area. Shortly thereafter the appellant saw : the deceased David Malota, passing near the appellant's place of work. Without taking any precaution, the appellant who was armed with a gun, shot at the deceased's head and leg. The deceased died instantly. At his trial the appellant pleaded guilty. Mr. Nyangarika, learned counsel, gave mitigating factors on his behalf. The learned trial judge sentenced the appellant as stated above. Aggrieved by the sentence the appellant has lodged this appeal through the legal services of Mr. Nyangarika, learned counsel. In his memorandum of appeal, Mr. Nyangarika has preferred one ground of appeal, namely: That the Hon. Trial judge erred in law and in fact in sentencing the appellant to 18 months imprisonment which is on the high side i 3 viewed in the light of the whole circumstances of the case and the mitigating factors. In elaboration Mr. Nyangarika contended that, in sentencing the appellant, the learned trial judge did not consider two factors which, in his view, are very crucial for assessment of a proper sentence. These are: That the appellant was a first offender, and that the appellant had readi_ly pleaded guilty to the offence charged. The learned counsel pointed out· that, had the learned trial judge considered these factors he would have sentenced the appellant to a lesser sentence and should probably have discharged him. In support of his submission the learned counsel cited the decisions of the Court in the cases of Silvanus Leonard Nguruwe v. R. (1981) TLR 66; and Bernadeta Paul v. R. (1992) TLR 97. Responding to these submissions Mr. Mdemu, learned State Attorney, assisted by Ms. N.M. Mwanda, learned State Attorney, who appeared for the respondent Republic, contended that a Court of Appeal will be 'I. 4 reluctant to interfere with a sentence imposed by a trial judge except under the following conditions:- One, where the sentence is either manifestly excessive or patently inadequate. · Two, where the learned trial judge ignored an important matter or · circumstance that ought to have been considered while passing the sentence. Three, where, in assessing sentence; ·the learned trial judge had acted upon some wrong principle. The learned State Attorney pointed out that, in the instant case, where the maximum sentence is life imprisonment, the sentence complained of is, in his -view, not · excessive. The learned State Attorney further contended that, in assessing the sentence complained of, the learned trial judge considered the appellant's mitigation together with the overall circumstances of the case. However the learned State Attorney conceded that the learned trial judge did not expressly indicate that he took into consideration the fact that the appellant was a first offender and had pleaded guilty. But he was quick to point out that the word "conditions" used by the learned trial judge in sentencing ). 5 the appellant, in his view, meant that he had considered all the appellant's mitigating factors including that of being a first offender and his plea of guilty. The learned State Attorney further contended that, even if the learned trial judge did not consider the two factors · complained of, yet due to the seriousness of the offence charged together with the overall circumstances surrounding the case, the impugned sentence is neither illegal nor manifestly excessive and should not be interfered with. It is trite law that this Court will not interfere with sentences passed by a trial judge except under the following circumstances:- (i) Where the sentence is either manifestly excessive or patently inadequate. (ii) Where the trial judge ignored an important matter or circumstance that ought to have been considered while passing the sentence. 6 (iii) Where the sentence imposed is wrong in principle. This position of the law has been reiterated by the Court in a number of cases including Silvanus Leonard Nguruwe v. R. (1981) TLR 66; Bernadeta Paul v. R. (1992) TLR 97; Rashidi Kaniki v. R. (1993) TLR 258. It was further emphasized by the Court in Andrew Colman Shayo v. R., Criminal Appeal No. 114 of 2003 (unreported) where the Court stated in the following terms: It is trite law that this Court will be reluctant to interfere with sentences which do not seem to it to be wrong in principle though they may appear heavy to individual judges (See: In Nuttall (1908) 1 Cr. App. R 160). An Appellate Court which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing magistrate/judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An Appellate 7 Court will only interfere if it is demonstrated that the sentencing Magistrate/judge fell into material error of fact or law_. Such error may . appear in the reasons given by the sentencing Magistrate/judge, or the sentence itself may be manifestly excessive orinadequate, thus disclose error. An Appellate Court does not intervene simply upon the basis that the members of the court · would have exercised .their discretion differently from the sentencing Magistrate/judge. In the instant case the appellant's complaint is not that the sentence is manifestly excessive, although Mr. Nyangarika said it is partly on the high side, without elaboration. The appellant is also not complaining that the sentence is illegal or that it is wrong in principle. His main complaint is that, the learned trial judge did not consider the fact that the appellant was a first offender and that he had pleaded guilty. 8 It is his view that, had the learned judge considered these two factors he would have imposed a lesser sentence, and possibly a discharge order. We have carefully considered this submission. Indeed on the face of the record the learned trial judge did not mention expressly that he considered also those two facts. It is therefore not certain whether he considered them. The doubt must be resolved in favour of the appellant. But we pause to ask: Had the learned trial judge considered the two factors, should he have imposed a lesser sentence? With due respect to the learned counsel for the appellant, we think he would not have imposed a lesser sentence in view of the gravity of the offence charged and the sentence being neither manifestly excessive nor imposed upon a wrong principle. We are of the firm view that, in view of the seriousness of the offence charged together with the overall circumstances surrounding the case, if the learned judge had considered these factors, he would still impose the same sentence which is neither manifestly excessive nor imposed upon a wrong principle. 9 In the result, we dismiss the appeal in its entirety. DATED at DODOMA.this 29th day of May, 2006. D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL S.N. KAH JUSTICE OF APPEAL I certify that this is a true copy of the original. ( s. DE