20180717 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A., MKUYE. J.A.. And MWANGESI. J.A.l CRIMINAL APPEAL NO. 222 OF 2016 JUMA MWITA @ NYAMIGURI................................................ APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Maiqe, J.) dated the 22nd day of March, 2016 in Criminal Sessions Case No. 200 of 2015 JUDGMENT OF THE COURT 13th & 18th July, 2018 MWANGESI, J.A.: In the information that was lodged against the appellant on the 21st day of October, 2015, he stood arraigned for the offence of murder contrary to the provisions of section 196 and 197 of the Penal Code Cap. 16 R.E 2002 hereinafter referred to as the Code. It was the case for the prosecution that, on the 19th day of August, 2014 at Rung'abure village within the District of Serengeti in Mara Region, the accused murdered one Chaguche s/o Mahiri. The appellant protested his innocence. i Nevertheless, when the charge was re-read over to the appellant on the 22nd day of March, 2016 when the case was called on for hearing, the appellant offered a plea of guilty to a lesser offence of manslaughter contrary to the provisions of section 195 of the Code, an offer which was accepted by the prosecution. As a result, the appellant was convicted on his own plea of guilty to the charge of manslaughter and sentenced to go to jail for a period of twenty - eight (28) years. The appellant is aggrieved by the sentence meted down against him and hence, this appeal to the Court. In the memorandum of appeal that was lodged by the appellant himself on the 8th day of March, 2016, he raised about five grounds namely, firstly, that had the learned trial Judge fully considered the mitigating factors, and applied the sentencing principles, he would not have imposed a sentence of twenty - eight (28) years' imprisonment against the appellant. Secondly, that the trial Court did not take into account a relevant consideration whereas, the appellant committed the offence while under frenzied (sic) or panic following a sudden attack accompanied with an intolerable insult which was serious in Kurya. Thirdly, that the trial Court overlooked a material factor whereas, the appellant was a first offender, although the learned trial Judge expressly mentioned that he took into account the mitigating factors. Fourthly, that the learned trial Judge's decision on sentencing was based on aggravating circumstances outweighing the mitigating factors. And fifthly, that the sentence meted upon the appellant was manifestly excessive. After Mr. Constantine Mutalemwa learned counsel, had been assigned the case file to represent the appellant in this appeal, he lodged one more supplementary ground to the effect that, the trial Judge erred in law for excessively sentencing the appellant without adequately considering all factors advanced by the appellant's counsel and other statutory factors. On the date when the appeal was called on for hearing, the appellant who was present in Court, enjoyed the services of learned counsel Mr. Constantine Mutalemwa whereas, the respondent/Republic, was being advocated for by Mr. Namti Sehewa learned Senior State Attorney, who was assisted by Ms Lilian Meli, also learned State Attorney. Mr. Mutalemwa rose to inform the Court that, after consulting the appellant (his client), they had agreed that in arguing the appeal, he would address himself on the third and fifth grounds which had been lodged by the appellant himself, plus the supplementary ground which was lodged by him and thereby, abandoning the remaining grounds of appeal which were lodged by the appellant. Starting with the supplementary ground, the learned counsel for the appellant submitted that, the trial Judge did not consider the mitigating factors which were advanced by the appellant's learned counsel during trial, as well as the statutory factors. He referred us at page 14 of the record of appeal, where in sentencing the appellant the learned Judge stated thus: "/ have duly considered the aggravating factors from the Republic as well as the mitigating factors from the defence counsel. . . " It was Mr. Mutalemwa's argument that, even though the learned Judge made such statement, he lightly considered the mitigating factors advanced by the appellant's counsel, and proceeded to consider the aggravating factors, which were raised by the prosecution. The learned counsel opined that, the statement by the learned trial Judge was inadequate in the light of the holding in Akida Ramadhani Salehe Vs. Republic, Criminal Appeal No. 349 of 2013, and Samwel Izengo @ Malaja Vs. Republic, Criminal Appeal No. 347 of 2013 (both unreported). Mr. Mutalemwa argued further placing reliance on the holding in Waiman Julius Vs. Republic, Criminal Appeal No. 135 of 2007 (unreported) that, the law permits this Court to interfere with the sentence imposed by the trial Court where it is evident that, some factors that ought to have been considered by the trial Judge before passing sentence to an accused, have not been considered. Additionally, the learned counsel added, there is a requirement under section 337 (1) of the Criminal Procedure Act, Cap 20 R.E 2002, which requires the court to consider some statutory factors before sentencing. The learned counsel for the appellant concluded his submission by strongly imploring the Court to re-consider the mitigating factors which were advanced on behalf of the appellant during trial and reduce the sentence to an appropriate and considerate one. In response to what was submitted by his learned friend, the learned Senior State Attorney submitted to the effect that, he was supporting the sentence that was imposed to the appellant by the learned trial Judge that, it was legal and deserving. This was from the fact that, the offence under which the appellant was charged with and convicted of, carries a maximum sentence of life imprisonment. In that regard, the sentence of twenty - eight years (28), was made within the scope of his legal parameters after he had considered both the mitigating factors and the aggravating factors. Seeking refuge from the holdings in Sylivanus Leonard Nguruwe Vs Republic [1981] TLR 66 and Shida Manyama Vs Republic, Criminal Appeal No. 323 of 2014 (unreported), Mr. Sehewa argued that, this Court has no any legal justification whatsoever, to interfere with the discretion that was exercised by the learned trial Judge in imposing the sentence which is being challenged by the appellant. He therefore urged us to dismiss the appeal, for want of merits. The issues which stand for deliberation by the Court in view of what has been submitted from either side above are two, firstly, whether or not, the sentence which was imposed to the appellant by the learned trial Judge was excessive; and secondly, if the answer to the first issue is in the affirmative, whether the Court can interfere with the said sentence. To begin with, we wish to reiterate what has severally been stated by the Court that, sentencing is a difficult task and in particular, where the law has left a wide range in which the trial Judge or magistrate is left to swim, as it is, for the offence of manslaughter. In Waiman Julius Vs. Republic (supra), the Court observed that: "We wish to point out that one o f the most difficult areas in the administration o f justice is the sentencing process especially where the law has not fixed the minimum sentence. In such areas, the sentencing court should not only look at the harm the offender has caused to the society, but should also take into account all mitigating factors o f the offender and apply its wisdom and common sense to arrive at a just sentence." As earlier stated above, the appellant herein, was convicted of the offence of manslaughter. This offence carries a sentence ranging from zero years to life imprisonment depending on the circumstances of each particular case. The circumstances under which the offence in this appeal was committed as could be gleaned from the facts of the case were that, the deceased and his colleagues pursued the appellant for some time on reasons which were not disclosed, and ultimately ended up with the act of the appellant to stab the deceased using a machete. It was further submitted that, there were some serious insults which were uttered by the deceased against the appellant. Following the admission of the appellant to the charged offence of manslaughter, there were mitigating factors which were advanced by the learned counsel for the appellant which included, the fact that, the appellant had readily pleaded guilty to the offence, that the appellant was a first offender; that the appellant had been in remand for two years; that the appellant had children depending on him; and that before commission of the offence, the deceased used abusive language to the appellant by calling him uncircumcised, which is an intolerable insult in Kurya community. What we had to ask ourselves in the light of the foregoing circumstances, is whether in sentencing the appellant to go to jail for a period of twenty-eight (28) years, the learned trial Judge was justified. While we concede to what has been submitted by the learned Senior State Attorney that it was legal, we are doubtful as to whether it had any particular purpose to serve to the society. At this juncture, we think the observation that was made by Samatta, J. (as he then was) in Tabu Fikwa Vs Republic [1988] TLR 48 to be inspirational when he observed in part that: "While it is impossible to overemphasize the need for justice to be done, it must always be remembered that mercy, not sledgehammer, is justice's concomitant. In sentencing a fellow mortal therefore, an insensitively censorious attitude should be avoided. It is wrong to equate the approach o f mercy or plain humanity with maudlin sympathy or misplaced pity for the offender. Mercy is an element o f justice itself— " On our part, upon having put into consideration the mitigating factors which were advanced by the learned counsel for the appellant in the instant appeal during sentencing, and what was observed in the above cited decisions, we are hesitant to get convinced that, the learned trial Judge did put into consideration all the mitigating factors even though, he did clearly express in the record. A similar observation was made by the Court in Masumbuko Herman Vs. Republic, Criminal Appeal No. 9 of 2002, where it stated that: '!'Although the learned Judge stated in dear terms that all the circumstances had been considered, we do not think that was in fact done. From the sentence imposed it seems highly doubtful to us that, the circumstances advanced as grounds for imposing a less severe sentence was considered." After due consideration of all factors surrounding the appeal at hand, we are strongly convinced that, the sentence that was imposed by the learned trial Judge even though it was legal, it was on the high side. This moves us to the second issue, which was subject to the first issue being answered in the affirmative. The issue is whether or not this Court can interfere with the sentence imposed by the learned trial Judge. This issue is founded on the fact that as a general rule, the law abhors interference of sentences imposed by lower courts in the exercise of their judicial discretions by the superior courts. See: Silvanus Leonard Nguruwe Vs. Republic (supra), Yohana Balicheko Vs Republic [1994] TLR 5 and Sospeter Mayala Vs. Republic, Criminal Appeal No. 318 of 2013 (unreported). The appellate court may be compelled to interfere with the sentence of the lower court only when such sentences fall in certain circumstances as named by the Court in the case of Edward Mange Vs. Republic, Criminal Appeal No. 51 of 2015 which include: 1. Where the sentence is manifestly excessive or is so excessive as to shock; 2. Where the sentence is manifestly inadequate; 3. Where the sentence is based upon a wrong principle o f sentencing; 4. Where the trial court overlooked a material factor; 5. Where the trial court ignored the period the appellant had been in custody pending trial. We are thus enjoined to answer the second issue in line with the foregoing circumstances that is, as to whether the sentence which was 10 imposed to the appellant by the trial Judge in this appeal, fell in any of the circumstances named above. Our answer is in the affirmative. For instance, the period under which the appellant had been in custody was not considered by the learned Judge. Also not considered was the fact that, the appellant was a first offender. The learned trial Judge did as well not consider the fact that, the deceased did to a big extent contribute to his own death. That said, we find ourselves constrained to interfere with the sentence that was imposed by the learned trial Judge. And in so doing, we reduce the jail term to a period of seven years inclusive the jail period which has already been served. Order accordingly. DATED at MWANZA this 17th day of July, 2018 S.E.A. MUGASHA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. B. A. .-.’O DEPUTY REGISTRAR COURT OF APPEAL