20120718 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA. APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL APPEAL NO. 35 OF 2011 (Originating from Criminal Case No. 53 of 2010 of the District Court of Makete District at Makete Before F. R. Lukuna - R.M.) IBRAHIM ENONI ................ APPELLANT VERSUS THE REPUBLIC .............. RESPONDENT (Date of last Order 11.7.2012 Date of Judgement 18.7.2012) JUDGMENT KIHIO, J. The appellant, Ibrahim s/o Enoni, was charged with rape Contrary to Sections 130 (2) and 131 (1) of the Penal Code, Cap. 16 R.E. 2002 in the District Court of Makete. He was convicted on his own plea of guilty and sentenced to life imprisonment. Aggrieved by both the conviction and sentence, he lodged 1 • r this appeal. The appellant filed a three grounds Petition of Appeal. However, in essence his grounds of appeal are basically two, namely:- 1. That the learned Resident Magistrate erred in law . in sentencing him to life imprisonment without considering that he (appellant) was a child of under sixteen years old. 2. That the appellant's plea of guilty was equivocal and he was therefore wrongly convicted. At the hearing of the appeal the appellant appeared 1n person while the respondent, Republic· was represented by Miss Ngilangwa, learned State Attorney. The appellant has nothing to submit in support of his grounds of appeal and he decided to adopt his grounds raised in his Petition of Appeal. Miss Ngilangwa does not support the sentence imposed on the appellant. However, she supports the conviction. She submitted that under Section 360 ( 1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 no appeal against conviction by a person who is convicted on his own plea of guilty. She further submitted that a person who is convicted on his own 2 ' . plea of guilty is allowed to appeal against sentence only. She contended that on 30.12.2010 charge was read ayer and explained to the appellant who pleaded guilty to the charge . . She further contended that facts were narrated to the appellant who admitted that the facts narrated were true and that. he (appellant) had no objection on the application to tender the victim's PF.3 and his (appellant's) Cautioned Statement as exhibits (Exhibits "P .1" and "P .2", respectively). She argued that the appellant's plea was unequivocal and so the appellant is not allowed to appeal against conviction. She further argued that the appellant's age is indicated to be sixteen (16) years and so the trial Magistrate did not comply with the provisions of Section 131 (2) of the Penal Code, Cap. 16 R.E. 2002. She pointed out that it is mandatory under Section 119 (1) of the Law of Child Act No. 21 of 2009 that a child should not be sentenced to imprisonment. She further pointed out that other sentences are provided for under Sections 119 and 120 of the said Law of Child Act. She referred this court to the case of Republic V. Asia Salum and others (1986) T.L.R.12 where this court held that:- 1. Children should be given reformative sentences; 2. Youthful offenders should not be given imprisonment sentences. She was of the view that the sentence imposed on the appellant should be quashed. 3 ( ., 1; -~--- Tne particulars or offence in the trial court alleged ·that the appellant on 9 th day of September, 2010 at about 12.30 t . - hours at Matamba village within Makete district in Iringa region did unlawfully have carnal knowledge of one Prisca D/o Ngondya a girl aged 5 years old. It is quite plain in the trial court's record of the ca~e that on 30.12.2010 the charge was read over and explained to the appellant and his plea was recorded as follows:- "It is true I did it". Then the Public Prosecutor narrated the facts which showed that on 9.9.2010 at 12 hours in the vill8:ge of Matamba Prisca Ngondya and Justine Ngondya who was her brother were playing at their honie which was aneighbour to the appellant's home._ At around 12.30 hours Maria J. Nselu, the victim's mother, called the said Prisca Ngondya and Justine Ngondya to have food. The said Maria J. Nselu,did not see the victim of rape, Prisca Ngondya and when she traced her she (Maria J. Nselu) found her (Prisca Ngondya) and the appellant in the appellant's room when she (Prisca Ngondya) was naked and he (appellant) had already finished raping her. The appellant was arrested and taken to Matamba Police Station while Prisca Ngondya was given PF .3 to take it to the hospital. The appellant was interrogated by C. 8809 Detective sergeant Daniel in regard to this case and he (appellant) 4 admitted through Caution Statement. The appellant was brought in the trial court and p\eaded guilty. After the facts had been narrated by the Public Prosecutor the appellant is recorded to have stated as hereunder:- "What the Public Prosecutor has said is true". The Public Prosecutor prayed to tender PF.3 in respect of Prisca Ngondya and appellant's Cautioned Statement and after the appellant stated that he had no objection on the prayer the PF.3 and the appellant's Cautioned Statement were admitted in the trial court as exhibits (Exhibits '"P. l" and "P.2", respectively). Thereafter the trial court convicted the appellant on his own plea of guilty. A glance on the trial court's record shows that the Public Prosecutor informed the trial court that the appellant had no previous criminal records but stiff punishment should be imposed on him to be a lesson for him and other criminals. After appellant's mitigation the learned Resident Magistrate sentenced the appellant to life imprisonment. The first issue for determination is whether the 5 ---·---- ______ ,. . ----- appellant's plea was unequivocal~ ~ · Section 228 of the Criminal Procedure Act Cap. 16, R.E. 2002 provides as follows:- "If the accused person admits the truth of the charge his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pas·s sentence upon or make an order against him unless there shall appear .to be sufficient cause to the contrary". I do not entertain any doubt that the summary of facts as narrated by the Public Prosecutor in the trial court showed that the offence stated in the charge had been committed. In order for a charge of statutory rape to succeed the prosecution has to prove, inter alia, -that the appellant had carnal knowledge of his victim. These were the essential ingredients that were put to the appellant and his plea of guilty was unequivocal. I, therefore, I agree with Miss Ngilangwa that the facts of· the offence were ·narrated to the appellant who admitted that the facts narrated were true and so the appellant's plea was unequivocal. The next point for consideration is whether or not the appellant can appeal on his own plea of guilty to the charge. As rightly submitted by Miss Ngilangwa under Section 6 360 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 no appeal against conviction by a person who is convicted on his own plea of guilty. Section 360 (l) of the Criminal Procedure Act provides:- "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence''. As the appellant's plea was unequivocal the appellant is not allowed to appeal against conviction. I am, therefore, in · agreement with Miss Ngilangwa's argument in this regard. The last issue to be determined is whether the sentence of life imprisonment imposed on the appellant was proper or otherwise. The charge sheet in the trial court indicated that the appellant was sixteen years old when he committed rape. Miss Ngilangwa rightly pointed out that it is mandatory under Section 119 (1) of the Law of Child Act, No. 21 of 2009 that a child should not be sentenced to imprisonment. Section 119 (1) of the said Law of Child Act reads as follows:- 7 "A child shall not be -sentenced-to imprisonment". --- It Section 4 (1) of the said Act defines "a child" as a person below the age of eighteen years. As already stated, at the comm1ss1on of rape the appellant was sixteen years old. The appellant was, therefore, a child. at the time of the commission of the rape. Further more, Miss Ngilangwa pointed out that the appellant's age is indicated to be sixteen years and so the trial Magistrate did not comply with the provisions of Section 131 (2) of the Penal Code, Cap. 16 R.E. 2002. Section 131 (2) of the Penal Code, Cap. 16 R.E. 2002 says that:- "Notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall:- (a) if a first offender, be sentenced to corporal punishment only. (b) if a second time offender, be sentenced to imprisonment for a term of twelve months with corporal punishment. 8 Under Section 131 (2) (c) as amended by Act No: 21 of 2009 if a boy who is of the age of eighteen years or less commits the rape offence for a third time and he isa recidivist offender he shall be sentenced to five years imprisonment with corporal punishnierit. In the light of the provisions of Section 13 ~ (2) of the Penal Code, Miss Ngilangwa rightly pointed out that because the appellant's age is indicated to be sixteen years old the trial Magistrate did not comply with the provisions of the said Section 131 (2) of the Penal Code. Miss Ngilangwa correctly referred this court to the case of Republic V .. Asia Salum and others (above) as an authority that:- (1) Youthfuloffenders should not be sentenced to a term of imprisonment. (2) Where a first offender 1s concerned the emphasis ·should always be on the reformative aspect of punishment. Taking into account the above demonstrations it is my view that the sentence of life imprisonment was not proper. In the final analysis, the appeal on conviction fails and it is dismissed. 9 • ----1'--he-appe-al-on---sen-tence-i-s-all0wed-aF1:d-the-sen-tence-0f-l-ife imprisonment is set aside. It is ordered that the appellant be • released from jail forthwith unless detained there for other lawful cause. As the appellant has already served almost one year and seven months to order any other kind of punishment will amount to punishing him twice. J~ S.S.S. Kil-HO JUDGE 18.7.2012 Court:- Judgement delivered in the presence of the appellant and Mr. Matitu, learned State Attorney. J~ S.S.S. KiHIO JUDGE 18.7.2012 10