20110407 TZCA Tanga2

IN THE COURT OF APPEAL OF TANZANIA ATTANGA. (CORAM: MSOFFE. J.A., LUANDA. J.A.• And MANDIA, J.A.} CRIMINAL APPEAL NO. 307 OF 2010 YASIN SALIMU •••.•••••••••••.••.•••••••.•••.•••• j•••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania atTanga} (Teemba, J.} Dated the 9 th day of July, 2009 in Criminal Appeal No.44 of 2009 JUDGMENT OF THE COURT 4 & 8 April, 2011 MANDIA, J.A: The appellant YASIN SALIMU was convicted on his own plea of GUILTY to committing an unnatural offence c/s 154 (1) of the Penal Code. When he appeared in the District Court of Lushoto at Lushoto and the charge was read over and explained to him, the appellant pleaded thus:- ''It is true, I have committed the offence The court then entered a plea of GUILTY. The prosecutor outlined the facts which showed that the appellant committed sodomy at midnight on 5th February 2005 to a Standard 3 boy he was sharing a bed with. The boy reported the act of sodomy to his mother and the appellant was arrested on the same night and sent to the Police Station and subsequently to court. When the prosecutor finished outlining the facts to the court the court asked the appellant if the facts were true. The appellant replied that the facts were true and he was admitting them. The appellant was then convicted on his own admission of the facts. The prosecution gave a history of the appellant which showed that the appellant was a first offender. Asked to say something in mitigation, the appellant prayed for leniency, blamed drunkenness for his act of committing the offence and gave his age as twenty two years. The court then duly sentenced the appellant. After sentencing the appellant preferred an appeal with the High Court at Tanga. The High Court found that the appellant had pleaded guilty to the charge and dismissed the appeal. Dissatisfied, the appellant preferred this appeal. 2 The appellant appeared in person, while the respondent/Republic was represented by Ms Pendo Makanda, learned State Attorney. In his memorandum, the appellant contest the facts which he admitted in the trial court and also raises the question as to why the victim was not medically examined. In reply Ms Pendo Makanda, learned State Attorney, argued that the memorandum shows that the appellant is appealing against a conviction resulting from a plea of "GUILTY", and that Section 360(1) of the Criminal Procedure Act, Chapter 20 R.E, 2002 of the laws prohibits such kind of appeal. We have examined the record of proceedings before us. It is patently clear that the appellant admitted committing sodomy on a young standard three pupil when himself and the pupil were sharing a bed at night. We have examined the record to see if there were signs of equivocation during the taking of the plea or after the facts were outlined to the appellant. There are none. Instead, we find a person who all through knew what was 3 before him and what he had done, only that he blamed drunkenness for him doing what he did. We are of the opinion that the appeal offends section 360 (1) of the Criminal Procedure Act. The sentence awarded is the statutory minimum. The appeal lacks merit and is dismissed in its entirety. DATED at TANGA this ih day of April, 2011 J. H. MSOFFE JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL 4