20180213 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA {CORAM: LUANDA. J.A., MMILLA. J.A. And NDIKA. J.A.) CRIMINAL APPEAL NO. 100 OF 2016 KAYANDA MSHANGAA ...••••.••••.•.•••••..••....••.•.•..••.•.•.••••••.•.•••••••••••. APPELLANT VERSUS THE REPUBLIC l ■■ ••·········••11••···················································· RESPONDENT (Appeal from decision of the High Court of Tanzania at Mbeya) {Nqwala, J.) dated the 14th day of March, 2016 in Criminal Session Case No. 59 of 2014 JUDGMENT OF THE COURT 9th & 14th February, 2018 MMILLA, J.A.: Kayanda Mshangaa, (herein to be. referred to as the appellant), was charged in the High Court of Tanzania at Mbeya with the offence of manslaughter contrary to section 195 (1) and 198 of the Penal Code, Cap. 16 of the Revised Edition, 2002 (the Penal Code), having it been alleged that he unlawfully ~a used the death of one Rasi ( deceased's second name was not disclosed). On conviction, the appellant was sentenced to a' maximum term of life imprisonment. He was aggrieved; hence this appeal . to the Court which is against the sentence only. 1 The facts of the case were briefly that on 9.4.2013 in the afternoon, the appellant and the deceased were among a group of villagers of Masiani hamlet in Mapogolo village within Chunya District who gathered at Masiani local brew pub drinking a local brew commonly known as "komoni." Around 6:00 pm, a quarrel ensued between the appellant and the deceased which climaxed into a fight. PW3 Zawadi Mwasongole was amongst the persons present at that place who quelled the fight and separated them. A short while thereafter, the quarrel resumed between the two, and a fierce fight erupted, in the course of which the appellant hit the deceased with a stick on the head. He fell down, bled profusely, and lost consciousness. · Immediately thereafter, the appellant sneaked away and disappeared from the scene of crime. Meanwhile, upon receiving information of that incident, the deceased's employer, one Boaz Ngusa (PWS), and other good Samaritans organized for transport and rushed the injured person to the Police Station at Chunya, and subsequently to Chunya Government Hospital for treatment. Unfortunately, Rasi passed away the next day. With the assistance of the villagers of Mapogolo, the police traced the appellant and arrested him. As already pointed out, he was charged with the offence of manslaughter. 2 It is certain that upon conviction after full trial, the appellant came to terms with his fate. However, he was aggrieved with the sentence of life imprisonment meted out against him; hence the lone ground of appeal that the said sentence was manifestly excessive in the circumstances of the case. At the hearing of the appeal; the appellant was represented by Mr. Mika Mbise, learned advocate; whereas the respondent Republic enjoyed the services of Mr. Stambuli Ahmed, learned Senior State Attorney, assisted by Ms Mwajabu Tengeneza, learned State Attorney. At the outset, Mr. Mbise informed the Court that there were two m~moranda of appeal in this regard; the first one being that of 14.4.2017 which was filed by the appellant in person; and the second set dated 19.1.2018 which was filed by him. The first one raised a sole ground which focused on severity of the sentence; whereas the one filed by Mr. Mbise · himself raised four grounds, the fourth of which dwelt similarly on the aspect of the sentence. Mr. Mbise proposed to abandon the first one which was filed by the appellant in person, in favour of the second set which was filed by him on account that it covered a wide area of complaints, including matters of law, evidence and procedure. However, upon being reminded by the Court that the notice of appeal was solely against the sentence, Mr. 3 Mbise appreciated the point, and obliged to tackle only the ground converging on the aspect of severity of the sentence, The submission of Mr. Mbise was brief and to the point. His major premise on this was that the sentence which was meted out against the appellant was manifestly excessive, regard being had to the nature and manner in which the offence which faced him was committed. He elaborated that the appellant caused the deceased's death in the course of a fight. He submitted that the trial High Court judge did not properly direct herself as regards the mitigation factors which were advanced by the appellant's then advocate. He pointed out that the trial judge was informed· that the appellant was a youthful first offender then aged 36 years, and that he had a family dependent on him, similarly that he had stayed in remand prison for almost two years, and prayed for lenience; but the learned trial judge did not at all consider those factors. Instead, Mr. Mbise went on to submit, the trial judge smacked/implied that she observed the demenour of the appellant throughout the trial and was satisfied that he was not remorseful as was rightly opined by the gentlemen and lady assessors. In doing so, Mr. Mbise contended, the learned trial judge misdirected herself. Relying on the case of Silvanus Leonard Nguruwe 4 v. Republic [1981] T.L.R. 66, he urged the Court to intervene and impose a lenient sentence. On the other hand, Ms Tengeneza submitted at first that they were not supporting the appeal, contending in essence that the learned trial judge dutifully considered the mitigating factors which were advanced by the then advocate on behalf of the appellant, and that the High Court judge properly placed emphasis on the fact that the appellant was not repentant. Also, relying on the provisions of section 198 of the Penal Code, Ms Tengeneza stated that after all the sentence was according to law. Upon being probed by the Court if the Republic had asked the - learned trial judge to impose the maximum sentence; Ms Tengeneza conceded that it was not so. With that in mind she changed her previous stand and supported the appeal. Relying on what was stated in the case of Akida Ramadhani Salehe v. Republic, Criminal Appeal No. 349 of 2013 (unreported), she succumbed that the sentence meted out against the appellant was manifestly excessive. We wish to begin by restating the general principle of sentencing that an appellate court should not interfere with a sentence meted out to an accused person by a trial court because had it been the trial court it would 5 have imposed a different sentence. Nevertheless, it may interfere where the trial court had imposed an illegal sentence, or had acted on a wrong principle, or had imposed a sentence which in the circumstances of the case was manifestly excessive, or clearly inadequate. An appellate court may also interfere where the trial court overlooked a material factor, or where the sentence was based on irrelevant considerations - See the cases of Silvanus Leonard Nguruwe v. Republic (supra), Gerald Matei v. Republic, Criminal Appeal No. 130 of 2012, CAT, Mussa Ally Yusufu v. Republic, Criminal Appeal No. 72 of 2006, CAT, and Shabani Yusufu Mfuko and Another v. Republic, Criminal Appeal No. 140 of 2012, CAT (all unreported). We have carefully examined the record vis a vis the submissions advanced by both counsel for the parties, and we agree with them that the sentence which was meted out against the appellant was manifestly excessive. In the first place we are, as submitted by Mr. Mbise, not persuaded that the learned trial High Court judge basically took into consideration the entire set of material factors relevant to sentencing which were before him. Having the learned judge been informed that the appellant was a youthful first offender, also that then he had spent about two (2) years in remand 6 custody; we have not found any justification why she imposed a maximum sentence of life imprisonment. This is the more so when we consider that the learned State Attorney who had the conduct of the case before her for the Republic, did not request for imposition of a maximum sentence. He is on record to have had merely invited the court to impose a deterrent sentence, which did not necessarily mean a maximum sentence. As often stressed, first offenders, especially those who plead guilty to the charge (unfortunately that was not the case here), are usually sentenced leniently, unless there are aggravating circumstances - See the case of Willy Walosha v. Republic, Criminal Case No. 7 of 2000, CAT (unreported). In that case the Court explicated that:- "It appears to us that with respect although ostensibly a Judge may say that he has taken into consideration mitigating circumstances in assessing sentence/ it is not always apparent that he has in fact done so. For example, first offenders who plead guilty to the charge are usually sentenced leniently, unless there are aggravating circumstances. Also, the period an offender has spent in remand custody before they are sentenced is c1lso usually taken into consideration to reduce the 7 sentence which the offender would otherwise receive. We expect judges will in future demonstrate more clear!½ when assessing sentence/ that they have properly taken into account both mitigating and aggravating circumstances of each individual case'~ See also the case of Akida Ramadhani Salehe v. Republic (supra). We note, of course, that in the present case the appellant hit the deceased with a stick in the head, also that immediately thereafter he disappeared from the scene of crime, further that upon being charged with the offence of manslaughter as it were, he did not readily plead guilty to - the charge. That notwithstanding however, those factors by themselves did not justify imposition of a maximum sentence because it was hardly established, let alone suggested, that there was an inference of ill feelings between the appellant and the deceased, as there was no evidence of any prior enmity between them, save for what transpired on the fateful day. This is the reason why we find and hold that the trial judge misdirected herself in imposing the maximum sentence in the circumstances of this case. 8 For reasons we have endeavoured to show, we are of the respectful view that had the learned trial judge fully considered all the above, she would have been inclined, as we are, to impose a more considerate sentence than the one levied. In the event, we are constrained to interfere with the sentence levied. Thus, the appeal is allowed, the sentence of life imprisonment is set aside, and in substitution thereof, we hereby impose a sentence of imprisonment of 15 years, to run from the date of conviction. DATED at MBEYA this 13th day of February, 2018. 8. M. LUANDA JUSTICE OF APPEAL 8. M. MMILLA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEA I certify that this is a true copy of the original. ~ P. W. 8AMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9