20130927 TZCA Dodoma 3

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: _MSOFFE. J.A.. KILEO,J.A., And KIMARO, J.A.) CRIMINAL APPEAL NO. 28 OF 2013 MWANKALANGA LEWE ...........................................................r.APPELLANT VERSUS THE REPUBLIC., .. 11••·······································•·•·••••···••11••····RESPONDEMT ,_ (Appeal from the judgment of the Resident Magistrate's Court at Dodoma) (Mutungi. PRM Ext. Jurisdiction) Dated0 the 5 th October, 2006 in Criminal Sessions Case No.33 of 2005 ' JUDGMENT OF THE COURT I' I I , rd th 23 & 27 September, 2013 .KIMARO, J.A. The appellant pleaded guilty t9 information of manslaughter contrary• to sections 195 and 198 of the Penal Code, [CAP 16 R:E. 2002]. He was alleged to have without intention, killed Barabara Simon on 9th August, . 2004 at about 18.00 . hours· at the -Mulongoo -London Village within Manyoni District in,- Singida, Region. 1 C . - l: ..., , In the sentencing process Mr. Mayeye learned State Attorney who represented the respondent Republic, informed the trial court that the Republic had no record of previous convictions in respect of the appellant. However, he prayed to the trial court to impose a deterrent sentence on the appellant. Mr. Mshashi learned advocate who represented the appellant submitted in mitigation that although the appellant used a lethal weapon on the deceased and struck him on several areas, he was entitled to leniency. He said the deceased was the aggressor. He was the one who started hitting the appellant by a stick on his head. That made the appellant to retaliate by hitting the deceased with a knife. According to the learned advocate, what the deceased did provoked the appellant. That was more so, said the learned advocate, because the appellant had also taken some alcohol. In sentencing the appellant, the Principal Resident Magistrate with extended jurisdiction remarked as follows: "The blows inflicted was done on several parts of the body i.e. dangerous parts/ of the body which led to instant death. All those cast a notion that this was premeditated and calculatect even the blows inflicted were several one can 2 safely assume it was targeted to cause death. I sum up the entire act as being atrocities and cruel on the part of accused. He deserves no leniency at all, to contrary he deserves the maximum penalty which the offence carries that's life imprisonment. I do sentence the ·accused Mankalanga Lewe to life imprisonment." ( Emphasis added). Being aggrieved by the sentence, the appellant filed one ground of appeal challenging the same for being "manifestly excessive". During the hearing of the appeal, the appellant was represented by Mr. Zakayo Njulumi learned advocate, and the respondent Republic was represented by Mr. Godfrey Wambali learned State Attorney~ Challenging the excessiveness of the sentence, the learned advocate submitted that the trial magistrate failed totally to consider the mitigating factors which entitled the appellant to a lenient sentence, and not the life imprisonment which was the maximum penalty for the offence of manslaughter to which the appellant pleaded guilty. He said the facts which were narrated to the trial court after the appellant pleaded guilty showed that it was the deceased who caused his own death because he struck the appellant with a stick, and that prompted the appellant to 3 .. retaliate. It was in the cause of retaliation that the appellant stabbed the deceased with a knife. He said the appellant pleaded guilty and that saved the time and costs for conducting the trial. He also had no record of previous convictions. The learned advocate added that the appellant is aged 43 years with a wife and five children who depend on him and he has now been in custody for nine years, two of them being the period he stayed in remand custody before the sentence of life imprisonment was imposed on him. Commenting on the remarks made by the trial magistrate in imposing the sentence, the learned advocate said it was uncalled for. After the appellant had pleaded guilty to the offence, contended the learned advocate, the duty of the trial magistrate was to sort out a sentence that would be justified for the offence, given the circumstances under which it was committed, and not to consider matters unrelated to the imposition of the sentence. He prayed that the appeal be allowed. The learned State Attorney at first supported the sentence of life imprisonment, but on reflection, he abandoned that and supported the appellant's appeal. He conceded that the trial magistrate was required to 4 consider the mitigating factors that were given that it was the deceased who prompted the appellant to react the way he did because he hit him by a stick. He also agreed with the learned advocate for the appellant that the trial court had to consider that the appellant pleaded guilty, was a first offender with dependants, and the time he had spent in custody when he imposed the sentence of life imprisonment on him. He prayed that the appeal be allowed. In this case the circumstances, leading to the death of the deceased are as follows. The appellant went to the house of the deceased. He stayed outside. Without saying a word, he stood there smoking a cigarette. The deceased followed the appellant and asked him why he was at his house. Before the appellant responded to the question, the deceased slapped the appellant. A fight then occurred between the two. One person known as Chifupa intervened to quell down the quarrel but he was overpowered. The deceased took ·a stick and hit the appellant on his head. In retaliation, the appellant took a knife and stabbed the deceased on several parts of his body, three times on the chest and one time on his leg. The deceased died instantly. It was then the appellant was charged 5 with the offence of manslaughter and he pleaded guilty. At the police station he made a caution statement admitting the commission of the offence. He also made an extra-judicial statement before a Justice of Peace admitting the commission of the offence. When the charge was read over to him in court he pleaded guilty. In the case of Charles Mashuba V R [2005] T.L.R.90 , the Court made reference to BRIAN SLATTERY in his Handbook on Sentencing, which gives circumstances under which an appellate court can alter a sentence imposed by the lower court. The Handbook says at page 14 that: "The grounds on which an appeal court will alter a sentence are relatively few, but actually more numerous than is generally realized or stated in the cases. Perhaps the most common ground is that the sentence is "manifestly excessive•~ or as it is sometimes put, so excessive as to shock. It should be emphasized that "manifestly" is not mere decoration and a court will not alter a sentence on appeal simply because it thinks it is severe. A closely related ground is when the sentence is ''manifestly inadequate'~ A sentence will also be overturned when it is based upon a 6 wrong principle of sentencing. An appeal court will also alter a sentence when the trial court overlooked a material factor, such as the accused is a first offender, or that he has committed the offence while under influence of drink. In the same way, it will quash a sentence which has obviously been based on irrelevant considerations. Finally, an appeal court will alter a sentence which is plainly illegal, as when corporal punishment is imposed for the offence of receiving stolen property." The Court considered interfering with sentences imposed by the lower courts basing on the guiding principles given by Slattery's Handbook on Sentencing quoted above, in the cases of Silvanus Nguruwe V R [1981] T.L.R.66, Bernadeta V R [1992]T.L.R.97, Rashidi Kaniki V R [1993] T.L.R.258 and Hatibu Gandhi and Others v R among others. [1996] T.L.R.12. The question before us is whether in this case the circumstances under which the sentence of life imprisonment was imposed on the appellant justify interference by the Court. At this juncture we must say that it is apparent that the trial magistrate considered extraneous matters 7 in imposing the sentence of life imprisonment on the appellant. The remarks made by the trial magistrate, quoted in this judgment, were irrelevant considerations for sentencing the appellant after he had pleaded guilty to the offence of manslaughter. Those remarks would have been relevant in finding whether the appellant had malice aforethought in committing the offence if the Republic had prosecuted the appellant for commission of the offence of murder. In this case, with respect to the learned State Attorney and the learned advocate who represented the appellant in this appeal, we agree that the trial magistrate did not consider the mitigating factors in imposing the sentence of life imprisonment on the appellant. In this respect he acted on a wrong principle in sentencing. In the case of Abdallah A Njugu V R Criminal Appeal No 495 of 2007 (unreported) the Court appreciated the fact that sentencing falls within the discretion of the sentencing court. But it remarked that, that discretion must be exercised judiciously. See also the case of Ogulu S/o Owoore V Reginum [1954] 21 E.A.C.A.270. 8 The appellant was consistent in maintaining his plea of guilty from the time of his arrest. This not only showed that the appellant was regretful for his action, but he also saved the time and costs for conducting the trial both on the part of the court and the prosecution. See the case of Bernadeta Paul V R (supra). The deceased was also to be blame for starting the fight. The mere fact that the appellant did not go inside the house of the deceased but remained outside smoking his cigarette, did not, in our considered opinion, justify the deceased to fight the appellant. The Republic also informed the trial court that the appellant had no record of previous convictions. He was a first offender. This was also another factor which the trial court had to consider. The caution and extra Judicial statements of the appellant which were admitted in court as exhibits P2 and P3 respectively showed that the appellant and the deceased drunk some liquor before they fought. The Court has persistently held that a maximum penalty should not be imposed on a first offender, unless there are aggravating circumstances. This requirement becomes even more important where the offender pleads guilty. See the case of Masanja v R. Criminal Appeal No. 219 of 2011 (unreported). 9 If the above factors had been considered by the trial magistrate, he would ·not have imposed the sentence of life imprisonment which is the maximum penalty for that offence of manslaughter. We agree with the learned advocate for the appellant and the learned State Attorney that the sentence was manifestly excessive. We find the appeal by the appellant having merit and we allow it. Considering the fact that the appellant has been in prison for a period of seven years now, and the two years he remained in custody before he was committed to the High Court for his trial, we reduce the sentence of life imprisonment imposed on the appellant to such period as would result in his immediate release from prison, unless he is held therein for other lawful purposes. It is ordered. DATED at DODOMA this 2ih day of September, 2013. J. H. MSOFFE JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL N. P. KIM RO JUSTICE OF PEAL I certify that this i 10