20101018 TZCA Mwanza3

I I I IN THE COURT OF APPEAL OF TANZANIA AT MWANZA . :,I . ; . i (CORAM: RAMADHANI, C.J.; KIMARO, l.A; And MANDIA, l.A.) ,,,s II CRIMINAL APPEAIL NO. 121 OF 2007 ernlvEEN : :1 ; SOSPETER ZACHARIA............... r····················j..... APPELLANT . I i ; A'ND ,. ' i THE REPUBLIC .. I. ■ •• I I • • ■■ ••••••••• I ••• J~ I I ••• ■ •••• ■ I. ■• I ■ 11 • • .1•••••••• RESP.ON DENT t (An Appeal from the Decision of the High Couirt of Tanzania, at Bu~oba) / · ·1 . ; I ;, ' (Samlbo, l.) i th ~ i i dated the 27 dai of February, 2007 i1n I Criminal Session Case No. 8 of 2004 !I 11111i111 JUDGMENT OF THE COURT ! RAMADHANI, C. l.: ' The appellant, Sospeter Zacha~ia, was charged: with murder c/s 196 I . I ; of the Penal Code [Cap. 16 of the R. E. 2002]. He offered a plea of guilty . .'I ',_ . .. , I . , to the lesser offence of manslaughter c/s to 195 and \that was accepted by i . i I I the respondent/Republic. l C Briefly the facts were that the appellant went to the premises of the deceased, Augustine Nestory, at Kashuro Village in Muleba District, Kagera Region, armed with a spear, stick and a panga. He found Veronica, the wife of the deceased, outside the house and he asked for the deceased who came out with an axe. The appellant demanded his shs. 4,000/= but the deceased asked for time in which to repay. The appellant would not accept that request and, with his spear, attacked the deceased who reacted using the axe. There ensued an uproar resulting into the death of the deceased. The High Court at Bukoba, SAMBO, J., sentenced the appellant to an imprisonment term of twenty years and hence this appeal. The appellant was represented by Mr. Vedastus Laurean learned counsel, who was well aware that: An appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where it appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive; That was the remark in R. v. Mohamed Ali Jamal, (1948) 15 EACA 126 and James Yoram v. R., (1951) 18 EACA 147 which was followed by this Court in Bernadeta Paul v. R [1992] TLR 97. 2 ., The learned advocate submitted that the punishment was on the high side and that the learned trial judge completely ignored such material factors brought to his notice such as that the appellant was a first offender, he demonstrated contrition by pleading guilty, he acted in self-defence, he had spent almost seven years in remand custody, his age was 39, and that he had dependent children: two of his own and three of his deceased brother. Mr. Edwin Kakolaki, Senior State Attorney for the respondent/Republic, argued that the punishment was in fact lenient taking into consideration that the appellant, it was, who initiated an attack and that it was the deceased who was on the defensive. Mr. Kakolaki contended that though some material factors were not reflected by the learned trial Judge in sentencing, he, nevertheless, had them in contemplation. Mr. Laurean correctly pointed out that in Silvanus Leonard Nguruwe v. R. [1981] TLR 66 at 67 this Court catalogued some essential matters to be considered in sentencing: 3 J "We will now refer to those circ~mstances which were not considered by the judge when assessing sentence. One of such circumstances which were referred to us by Mr. Jadeja in his submissions is the fact that the learned trial judge did not give due weight to the fact that although the appellant was clearly guilty of assaulting the deceased, his conduct could not properly be described as vicious in view of the prosecution's own concession that the appellant hit the deceased only once with a stick. The other factors which, in our view, were material to the assessment of appropriate sentence in the case but which, once again, the judge appears not to have considered are the advanced age of the appellant; the period of two year;5 which the appellant spent in remand custody before being brought to trial; and lastly, the fact he pleaded guilty to manslaughter thereby saving the trial court and the Republic from needless trouble and expense both in time and money. Further by pleading guilty, the appellant clearly demonstrated a spirit of contrition which, in our view, was a circumstance entitling him to a consideration of more lenient treatment by the trial High Court" 4 We agree with Mr. Laurean that the issue of pleading guilty and, therefore, a sign of contrition, is given a lot of importance in assessing punishment as this Court did in Bernadeta Paul v. Rat pp. 99/100: "Coming to the present case it is clear from the record that in imposing the sentence of 4 years imprisonment the learned trial judge overlooked the fact that the appellant pleaded guilty to the offence charged". In that appeal this Court was of the opinion that a sentence of an imprisonment term for 4 years was on the high side for a young single mother who, owing to parental pressure, eight days after delivery, decided to kill the baby by administering to it a coffee pesticide. This Court followed Francis Chilema v R. [1968] H.C.D. 510 where BIRON, J. said: "It is generally, if not universally, recognised that an accused pleading guilty to an offence with which he is charged qualifies him for the exercise of mercy from the court. The reason is, I think obvious, in that one of the main objects of punishment is the reformation of the offender. Contrition is the first step toward reformation, and a confession of a crime, as opposed to brazening it out, is an indication of contrition. Therefore in such a case a court can, and does impose, a milder sentence than it would otherwise have done". 5 'J i'l I The legal position seems to be th' t all factors haye to be taken into account even if one of them, like contn,~ion, for examplr, is demonstrated to be lacking. Thus in Lukatraria v . .R. [1971] H. C. Q. 39 the appellant pleaded guilty to causing death by daJgerous driving ~ut in his allocutus said: I "I was born in 1952. I was workiri in London as ~ngineer. I 1 just came to visit my uncle. I am intending to do further studies. I do not mind anything <bf the fine. I woµld like to notify my uncle as to the fine and that is my only concern". , I . i The trial Magistrate took into account that arrogance in sentencing the appellant to 2 years imprisonment lnd said: ' "It will be wrong in principle to lnow ,, criminals tJ buy their ' way out of offences as easily anctt I cannot help feeling that the accused disregarded traffic 1Jw as he knew his uncle or i family would pay his way out". ' · I On appeal, ONYINKE, J. u~reld the Magiistrate's stance he nevertheless reduced the sentence to 8. months because i of other factors and said: I . I "[The appellant's allocutus] does not demonstra~e any sign ' of contrition. On the contrary iit! showed the extreme levity l with which the appellant was treating an offence which involved the loss of human life nd for which thJ legislature . I I 6 . I i j did not think suitable to specifiec~lly provide a fine as an ' , I alternative to prison sentence. The learned Magistrate was entitled to take this piece of irresbonsibility . into a~count in ' determining sentence. It cannot ~e said that he :exercised I his discretion wrongly in imposing'/ a prison sentente on the .I : appellant but the length of imprisonment ii is another: matter. The appellant was a first offendeir, a young pers9n and of previous good character". ' : In this appeal the factors this Court enume~ated in Silvanus I ; . Leonard Nguruwe are laud and clec;r= the appellant: pleaded guilty, he has been in remand custody for almost seven years, his is young with an age of 39, he is a first offender, and ht five depende~t children. It is our considered opinion that the sentence Jf twenty years i~ very much on the high side and we consider that one Jf ten years fro~ the time he was sente~ced by the High Court will m~bt the justice of the case. It is so ordered. DATED in MWANZA, this 18th ~ay of October, 2p10. !I , . '! ; A. S. L. RAMADHANI CHIEF JUSTICE N. P~ KIMARIO ' JUSTICE OF APPEAL 7 , I . I ·. r '': ,: L L. W. S. MANDIA . . ,, .• .· JUSTICE OF APPEAL ·I J 11 I certify that this is a true copy of~he I original. . .I .f ,, I . 11. . . P. . Bampikya SENIOR DEPUTYIIREGISTRAR .. · ,I t 'l V l I .·.' j ,l I I I ; I I ! I I : l . t ·I J •I d' l .·' r I ·' I ,; i . L 1• •.1' 1.