RULING ON SENTENCE

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 75 OF 2023 THE REPUBLIC VERSUS STEVEN S/O KONYA ------------------- RULING ON SENTENCE Date of the last Order: 30/09/2024 Date of the Ruling: 23/10/2024 LONGOPA, J.: The offender was convicted on his plea of guilty for the offence of acts intended to cause grievous harm contrary to section 222(a) of the Penal Code, Cap 16 R.E. 2022. The incident according to the Information filed happened on 17/02/2023 at Nzasa in Dodoma whereby offender did unlawfully injure one Ndalu Maswago by hitting him with a hoe on his head causing serious injury on the victim. Both the offender and victim were residents. The offender stood 1|Page charged for acts intended to cause grievous harm where the injured one Ndalu Maswago by unlawfully at his head with a hoe. It was stated that victim leased part of his farmland to Dorisia Jonasi who had to cultivate. The victim found the offender with Dorisia Jonasi at the farm whereby Dorisia was showing for the offender the land to clear it for cultivation. A fight ensued between the offender and victim allegedly caused by the victim insulting the offender for having sexual intimacy with victim’s wife. It was in course of fighting that offender took a hoe and hit the victim at the head and continued to beat various places of the victim’s body using the handle of the hoe. The offender was arrested and sent to Police Station where he admitted to have caused the injury to the victim in cause of the fight. When the victim was taken to Dodoma Regional Referral Hospital was found to have suffered severe wound cut at the head thus upon further medical examination, it was found that the sharp object cut had impaired the brain of the victim thus leading to paralyzing the right -hand side both the leg and arm/hand. When arraigned to this Court, the offender pleaded guilty to the offence of acts intended to cause grievous harm to the victim. The offender herein was convicted on his plea of guilty, and both parties were invited to make their submissions on appropriate sentence to 2|Page be imposed. Ms. Victoria Njau, learned State Attorney on behalf of all the Prosecution State Attorneys submitted that there was no previous criminal record of the accused person. However, the prosecution prayed for stern punishment on the reasons that: First, the victim had paralysed as a result of the action by the offender, the victim on not continue with his activities as result of impairment cause by the offender. Second, the cut was on sensitive area that is head thus the offender intended to cause death of the victim. It is so sensitive part of the body. Third, excessive force that was applied resulted the victim to get impact on his brain this causing the health complication or the leg and hand of the victim. Fourth, the victim incurred costs as the victim had to pay for the costs of treatment at the hospital. Fifth, the victim is the bread earner of the family this the offender’s action had ruined the whole family as the victim cannot undertake his daily activities sue to the injury caused by the offender. Sixth, the nation workforce has been reduced by the impairment of the victim. On the other hand, Ms. Nyanjiga Nyabukika advanced several mitigation factors including the following: First, the offender is the first offender as he has never been charged nor convicted before. Second, the offender is very remorseful as from the beginning he handed over oneself to the village chairman after the incidence for the justice to take its course. Third, the offender is old aged at 62 years old this leniency on this aged person is crucial. Fourth, the offender had been very cooperative to law enforcements including admitting in cautioned statement at police and 3|Page confessing before the justice of peace. He also admitted in this court as well. Fifth, the offender has spent about two years in remand custody since February 2023. Sixth, the circumstances of the fight were due to provocation to the extent that words spoken by the victim were abusive/provocating that heat of passion could not have enabled the offender to think otherwise than to react. Seventh, the offender also had been impaired on his left hand due to the fight this he cannot work as normal. Having heard both parties on aggravating and mitigation factors, this Court is enjoined to determine an appropriate sentence that should be imposed on the offender in the circumstances of the case. The law under Section 222(a) of the Penal Code provides for the offence for which the offender stood charged. It provides that: 222 (a) Any person who, with intent to maim, disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the lawful arrest or detention of any person unlawfully wounds or does any grievous harm to any person by any means whatever; is guilty of an offence, and liable to imprisonment for life. The term shall be liable to life imprisonment entails the sentence for the offence that range from the life imprisonment as the maximum penalty to the unconditional discharge. The provision gives discretionary powers to 4|Page the court to determine appropriate sentence to be imposed depending on the circumstances of a particular case. This was the principle in Anna Moses Chisano vs Republic (Criminal Application No. 42/01 of 2021) [2024] TZCA 167 (6 March 2024) (TANZLII), at pages 8-11, the Court of Appeal stated that: The bolded words 'shall be liable to' do not mean that the trial court is mandatorily required to impose the stipulated penalty of life imprisonment but rather bestow upon the trial court a discretionary power to impose, depending on the circumstance of each case and upon considering the mitigating and aggravating factors, any appropriate sentence up to the maximum limit of life imprisonment. As the offence attracts the sentence up to life imprisonment, it is my considered view that it falls within medium level of acts intended to cause grievous harm. It would attract imprisonment between five (5) to ten (10) years jail term. Thus, five years imprisonment would be the starting point in this matter. This is for reasons that despite assertion that the convict did cut the victim with a hoe there is nothing on record on the extent of injury. This Court has not benefited from the contents of medical records regarding the victim which would have guided it to award appropriate sentence. 5|Page The need to consider the totality of aggravating and mitigation factors in sentencing reaching to appropriate sentence was analysed in the case Nemes Myombe Ntalanda vs Republic (Criminal Appeal 1 of 2019) [2021] TZCA 513 (24 September 2021) (TANZLII), at page 11, the Court of Appeal stated that: We stated that the counsel for the appellant pleaded a number of mitigating factors which would have entitled the appellant to get a court's leniency. Among the factors pleaded were that: - the appellant made an early admission to his responsibility thus he was remorseful for what he did, he was the first offender and at the time of sentencing, the appellant had spent a period of two years and half in custody. All these mitigation factors are also found in the sentencing manual titled "Tanzania Sentencing Manual for Judicial Officers" published by the Judiciary of Tanzania. We therefore urge all judicial officers and practitioners to be acquainted with it in order to ensure that sentences imposed on the offenders are consistent, proportionate, fair, just and proper. The offender in this case pleaded guilty to the charge of acts intended to cause grievous harm. It is also on record that he fully cooperated with the law enforcement agencies as he admitted to have committed the offence when interrogated by Police in a cautioned 6|Page statement and before the justice of peace in extrajudicial statement. He deserves some leniency of the Court on this aspect. I will deduct one year from the penalty that I would have imposed. Also, it is settled law that where harm or death arise out of a fight such harm negates the intention on the part of the offender to cause harm or death, if any. As it is not disputed that fight ensued at the scene of crime resulting into injury to the victim who initiated the fight by attacking the convict then the convict was somehow justified to defend oneself. It is on record that he is a first offender thus in totality the convict deserves some leniency too. The principle in the case of Charles Mashimba vs Republic (Criminal Appeal 86 of 2002) [2004] TZCA 65 (16 July 2004) (TANZLII), at pages 5-6, is illustrative whereby the Court of Appeal stated that: We have already observed that the trial Judge overlooked the fact that the appellant was gravely provoked by the adulterous conduct of his late wife and that he also ought to have considered the fact that the appellant was a first offender who deserved some leniency particularly because he pleaded guilty to the offence of manslaughter and by so doing saved the court's time and expense of conducting a full trial. 7|Page On totality of these grounds, I shall deduct another year from the intended penalty of five years. Thus, total of two years period is deducted from the period of five years imprisonment. Having considered of all the circumstances including all available sentences within this jurisdiction, it is my settled opinion that imprisonment is the most appropriate sentence for this convict to learn a lesson and reflect on his action. The sentence that is consummate to this offender shall therefore be three (3) years imprisonment. I shall proceed to sentence the convict herein to serve a three (3) years’ imprisonment from today. That term shall serve as a lesson to reflect for his action. It is so ordered. DATED at DODOMA this 23rd day of October 2024 E.E. LONGOPA JUDGE 23/10/2024. 8|Page