sophia hamisi namlima vs republic 2008 tzhc 289 18 july 2008

IN TH E HIGH C O U R T OF T A N Z A N IA AT M T W A R A C R I M I N A L A PP EA L NO 39 OE 2006 Original Ml war a D/court cr. ease no. / 57/2005 before: A. 11. Kalli ~RM S O P H I A HAM LSI NAM L I M A ................................................. A P P E L L A N T VE RSUS H I E R E P U B L I C ........................................................................R E S P O N D E N T 24/6/2008 & 18/ 7/2008 Judgement Rwcyemamu J., In Mtwara District Court (DC) Cr case 157/2005, the appellant Sophia Hamisi Naml ima was charged with and convicted o f causing grievous harm c/s 225 o f the Penal Code, she was sentenced to 7 yrs imprisonment and ordered to compensate the victim the sum <of Shs. 200,000/=. Dissatisfied, she has appealed to this court. It was undisputed facts at the trial that on 14/8/2005, the victim Pw1 was attacked and cut on several parts o f her body using a panga (machete) causing her serious injuries described as permanent disfigurement on the PF3 admitted in evidence as P l:xh. 1. 'The appellant was a former wife of Pw2 the current husband o f Pw1. The prosecution evidence which the DC believed went as follows: On 14/8/2005 about 8.00 pm the complainant Pw'was in her house cooking, she was with her daughter when the appellant came wielding a machete, insulted the victim and proceeded to slash her indiscriminately on different parts o f her body. The victim identified the appellant because there was light from firewood and “kibatari” ; she knew her before -as a former wife o f her husband and she observed her at close range when the appellant came near her and said “M shenzi kumcimayo nllikuwa nakutaka w ew e" The victim lost a lot of blood, fell, lost consciousness and came around the following day in hospital. She suffered permanent disllgurement o f her arm and knee described on the Pl;3 P. l£xh I. The appellant was also identified by Pvv2. I Iis evidence threw light on the background to the attack. He testified that he was a former husband of P w 1 whom he had divorced alter 8 yrs. After divorcing P w 1 he married the appellant and two other women. Within 6 months o f that marriage he divorced the appellant who returned to her village about a mile away and remarried the complainant P w 1. According to Pw2 he was returning home about 8.30 pm on the material day when he saw the appellant at a close range -a b o u t 5 paces away, coming from his house with a machete. 1le entered the house and found his wife P w 1 in a pool o f blood. He raised alarm saying "njooni muone Sophia ameuaCSophia is the first name o f the appellant,); a ten cell leaded came in response they took P w 1 to hospital with her arm barely hanging on. He testified to have identified the appellant a former wife because he saw her at close range, and there was moonlight. Another witness who testified to have identified the appellant was Pw". He testified that he was a farmer from the same village who went to the scene in response to the alarm. On reaching there, he met the appellant coming out the house with a machete. Me was able to identify her because there was moonlight, he questioned the appellant “m bona unatoka nje no mwenzio akiwa anapiga kelele nclani" loosely translated ‘how come you are coming out while your colleague is crying” . '1 he appellant responded by threatening him - she threw the machete at him but he bent down narrowly escaping injury. Me went in the house where he saw P w 1 with a number o f cut wounds. He helped to take the victim to the police and ultimately to hospital. Pw3 a village chairman testified to have received information the same night after he came from the mosque that the appellant had injured the victim who was already hospitalized. The following day he arrested the appellant with help o f her brother in law, he used his bicycle to take her to the police. Thereafter a police officer Pw4 visited a scene o f crime and drew a sketch admitted in evidence as P 2. The appellant gave a brief statement in defense, stated that she remembered Pw3 carried her on his bicycle to take her to hospital but he instead he took her to the police. She claimed to have been attacked by P w 1 who told her to “leave the properties fo r her children". Her story, I hasten to point out, was incoherent. 'The DC found the testimony o f the three witnesses to be credible and positive evidence o f identification o f the appellant as P w 1 s assailant, a 'act the appellant refutes. o-> In her 6 grounds o f appeal, the appellant merely repeats her incoherent story at trial, that she was sick attacked by P w 1 but she was arrested instead o f being taken to hospital; she was innocent and should not pay compensation, that P w 1 used to intimidate her and the story against her was a fabrication. Supporting conviction, Ms. shio state attorney for the republic/ respondent submits that the appellant was properly identified by three witnesses; that conditions o f identification were ideal thus her conviction was well founded. Regarding sentence she submits that in the circumstances o f the case, given the nature o f injury and weapon used, the DC preperiy exercised its discretion in passing the maximum sentence. On my part I wholly agree with the DC decision and state attorney’s submission that the case against the appellant was proved beyond any shadow o f doubt. The appellant was properly identified by the victim as her assailant, she was seen moving away from the scene o f crime by two witnesses immediately after commission o f the offence; conditions of identification by the witnesses were very ideal. She was a person they all knew before; they saw her at close range and heard her speak; they disclosed her identity leading to her immediate arrest. That apart, her action though ill advised, was on the facts given clearly motivated by jealous o f the victim - wife o f her former husband. The next issue for decision is whether the sentence passed was proper or so ‘manifestly excessive as to warrant intervention by this court. 1 am aware and guided by the general principle that an appellate court will not readily interfere with a legal sentence o f the trial, it runs thus; "(Hi) before an appellate tribunal interferes with s sentence, it must consider w hether the magistrate has in fa c t m isdirected h im se lf in any particular aspect or whether the sentence is so m anifestly excessive that it is clear that there must have been m isdirection even though not explicit; " Steven s/o M kone <J£ Mara Coop. Union(1984) Ltd Vs Republic (1987) TLR 36; See also the CA in Hatibu G h a n d & O t h e r s Vs R. (1996) TLR 12 CA.” The appellate court can not interfere simpiy because: "// would not have im posed that sentence if it were the trial c o u rt" Wilson Fanuel v. R, 1993 TLR (CA.) Now, in what kind o f situations is the sentence to be regarded as manifestly excessive? Again, that aspect has been considered a number of times by this court. Hon. Chipeta J in R a m a d h a n i M w en d a v. R 1989 TLR 3 concluded, and 1 agree with him, that a sentence is excessive where it does not "fit the crim e and guilty as well as circum stances o f the offender; ” To bring to light the application o f that general principle, even at the risk of making this decision overly long, I will examine some instances where an appellate court either interfered or desisted from interfering with a legal trial court sentence. In R a m a d h a n i M w e n d a ’s case, the Judge considered age as a circumstances o f the offender and held, I paraphrase, ‘youthful offenders should be treated with leniency’ citing R v .luma Rashidi (1972) MCI) 185 and added that 'prevalence o f the offence is not the only factor’. In me case o f B c r n a d e tt a Paul Vs R where the accused had pleaded guilty to killing her 8 day old baby, the Court o f Appeal considered and held that the fa ct o f the accused's p lea o f guilty -ju stifie s a lenient sentence; It reduced the trial Ju d ge ’s sentence o f 4 years to almost two years (the period she had already served). Again, a deterrent sentence was reduced in the case o f J u n t a M a b e m b e la Vs R., HC Cr. App. 93/2004; Mwanza (registry), (unreported); involving the offence o f cattle theft. The trial court sentenced the accused to 8 years imprisonment, following full trial. On appeal Masanche J, cited wnh approval the decision by the late Katiti J in R V Magiloigulila Cr. Rev. 13/1981; Mwanza registry; as cited in Criminal law and Procedure, A digest o f Cases B.D. C h i p e t a that: “when considering w hether such sentence is excessive, it is necessary to view it in the perspective o f the maximum sentence p rescrib ed by law fo r the crim e, the standard o f sentencing custom arily observed w ith respect to such offence, the place which such criminal conduct occupies in the scale of seriousness of the offence... "(Emphasis mine,). He then went on to note that; 'the sentence customarily observed with respect for such offences is 5 years’ and reduced the sentence accordingly. On the other hand, a deterrent sentence was confirmed in the case o f R. V. Kabula M h oja , Cr. Revision 12/87; (1986) TLR 248. In that case, the accused was a first offender who had pleaded guilty, the Judge found the deterrent sentence justified because "the conduct o f (accused) is so reprehensible as to attract a sufficiently deterrent sentence; fo r she is clearly a very sadistic wom an ”. In the present case, I agree the DC exercised its discretion when it passed the maximum sentence, the weapon used by the appellant and the manner o f her attack - slashing the victim indiscriminately indicates the appellant was bent at killing or*seriously maiming the victim as she did. I leave the sentence undisturbed. In conclusion, this appeal is dismissed in its entirety. It is so ordered. R iVI Rweyemamu Judge 18 / 7/2008