Criminal Appeal 14 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 14 OF 2023 (Originated from the District Court of Miele at Miele in Traffic Case No. 12 of2022) YUSUPH SHAHA @MKIMA.................. APPELLANT VERSUS REPUBLIC.............................. RESPONDENT JUDGMENT "4U. 22::! & 3(T July, 2024 MRISHA, J. si;-; Before the District Court of Miele at<Mlele,;;thei; appellant Yusuph Shaha @Mkima was arraigned with.three counts of Causing Death through careless driving contrary to sections 41, 63 (2) (b) and 2.7 (1) (a) of the Road Traffic Act [Cap 168 R.E. 2002] henceforth the Road Traffic Act, Causing Damage to a Motor vehicle throughkreckle!SS;;driving contrary to section 42 (a) and 63(2) (b) of the Road Traffic Abt and Causing Damage to a Motor cycle through reckless driving, contrary to section 42(a) and 63(2) (b) of the Road Traffic Act, the first, second and third count respectively. In the first count, it was alleged that on 13th day of December, 2022 at Madukani area along Inyonga - Tabora Road at Inyonga Village within Miele District in Katavi Region, being a driver and In charge of a Motor vehicle with Reg. (Registration) No. STL.7567 make TOYOTA HILUX, the appellant did drive the said Motor vehicle on the public road carelessly to wit: he failed to take i proper precautions to other users of public road as a result knocked one AUGENIA D/O GERVAS who was a driver of a motor cycle with registration number MC.713 CDH make FEKON and caused her death. In the second count it was alleged that on the same date and place, as mentioned in the particulars of the first count, the appellant, being a driver and In charge of a Motor vehicle with Reg. No. STL.7567 make TOYOTA HILUX, did drive the said Motor vehicle on the public road dangerously to wit: did drive at a speed which having regard toall the circumstances of the case ^W'-. was dangerous to the public, as a rdsult>he failed to control the said motor .sJ>. 'T .u vehicle and knocked a motor cycle with Registration number MC.713 CDH _,r ’:: -c Jv* make FEKON which was being driven by one AUGENIA D/O GERVAS and caused damage to the motor vehicle he was driving. As for the third and last count, it Was alleged that on the same date and place, asmentioned in the particulars of the first count, the abovenamed appellant being a?>driver and In charge of a Motor vehicle with Reg, No. STL.7567 make TOYOTA HILUX did drive the said Motor vehicle on the public road dangerously to wit: did drive at a speed which having regard to all the circumstances of the case was dangerous to the public, as a result he failed to control the said motor vehicle and knocked a motor cycle with Registration number MC.713 CDH make FEKON and caused damage to the said motor cycle. 2 Upon the charge sheet been read over and explained properly to him, the appellant pleaded guilty in respect of all counts, as described above. He also admitted to all the facts read over to him and had no objection to the prayer of tendering a deceased PF3 by the public prosecutor. In the end the said trial court convicted him in respect of all counts and proceeded to sentence him to pay a fine of 300,000/= for each count or to serve a concurrent sentence of two (2) years imprisonment in default thereof. F.\,. Also, the trial court went on to order cancellation of the appellant's driving licence for the period of three years■ (3) from the date of his sentence and declared him to be disqualified, ftom obtaining a driving licence of any type during such cancellation This means the appellant had to pay a fine to the tune of Tshs. 900,000/= for all counts in order to escape a custodial sentence while still being prevented U;: 'MF 'MF from using his driving licence for a period of three years, as ordered by the said trial court. The trial court's casefile seems to bear the Government of Tanzania Exchequer receipt with number 28554989 which shows that the appellant paid a total of Tshs. 900,000/=, as fine in respect of a Traffic Case No. 12 of 2022. It appears, however that he was aggrieved with the above alternative sentence and the period of his driving licence cancellation and decided to 3 appeal to this court against the sentence imposed against him. His petition of appeal has the following grounds of appeal: - 1. That, the trial court erred in law and fact to convict and sentence the appellant twice in the same offences by ordering payment of fines and cancelling the driving licence for the period of three years. In alternative, that the procedure for cancellation of the appellant'sdriving licence was in contravention of the law. 2. That, the trial court erred in fact to impose excessive punishment without taking into consideration the mitigation prayed by the appellant. w, 3. That, the trial court erred in tact to impose excessive sentence to the appellant without taking into consideration the facts of the case regarding the fact that the victim-contributed to the occurrence of the said accident^ 4. That, the trial court erred in fact for providing punishment without guiding itself properly in the Judiciary sentencing manual which provides guidelines in sentencing. In the light of the above grounds of grievance, the appellant urged the court to quash the whole sentence and subsequent orders thereto. At the hearing of the appeal now before me, the appellant was represented by Mr. Kurwa Ngunga, learned advocate, whereas the respondent Republic was represented by Ms. Atupelye Makoga, learned State Attorney. 4 Submitting in respect of the said grounds of appeal which he proposed to combine and argue together, Mr. Ngunga argued that the trial court imposed the excessive sentence without considering the Tanzania Sentencing Manual for Judicial Officers of 2019 (the Tanzania Sentencing Manual) when sentencing the appellant. He also submitted that at page 8 of the typed proceedings it is shown that the trial court indicated that the three offences the appellant stood charged with, were medium rated crimes which presupposes that the trial court ought to Wit. impose a fine of less than 50,000/= as per the guidelines contained in the Tanzania Sentencing Manual for Judicial Officers. Not only that, but also the appellant's counsel argued that punishing the accused is a discretion of the court; however, the appellate court my interfere with the sentence passed by the trial court where it is shown that the trial court acted;upon some wrong principle (s) or where such sentence appears to be illegal or very excessive and basically where the trial court fails to consider the mitigating factors^ as it was stated in the case of Omary Rehani @Goha vs Republic, DC Criminal Appeal No. 50 of 2019 (HCT at Sumbawanga, unreported). Applying the above authority to the instant case, the learned counsel submitted that at pages 8 to 9 of the trial court typed proceedings, it appears that the trial court sentenced the appellant to pay a fine of Tshs. 300,000/= 5 for each count or to serve a two years imprisonment sentence in default, which the appellant's counsel argued, is illegal because the trial magistrate based his sentence on section 34 of the Road Traffic (Amendment) Act No, 7 of 2021 which is still a Bill as it has not yet been assented and gazetted in order to become a law. He added that section 63 (2) of the Road Traffic Act has not been amended and it still provides for a fine of not less than 15,000/= but not exceeding 50,000/= which is why he maintained that the sentence awarded to the appellant was very excessive. ’^k. Regarding section 27 of the Road Traffic Ad: which provides for Mandatory cancellation or suspension of driving licenceythe appellant's counsel submitted that he had no qualms with such provision; his main argument, however; is that the trial; magistrate ought to have considered that the said provision of ,tu,, the law has a proviso which may be used by the trial court to shorten the periodjof cancellation of a driving licence if there are special reasons to order a shorter period, but it omitted to do so. It was his further submission that the trial court failed to consider the appellant's mitigating factors, as per the Tanzania Sentencing Manual which would have made it to order a shorter period 6 Based on the above submissions from him, Mr. Ngunga prayed to the court to consider that the sentence imposed upon the appellant is excessive and be pleased it to reduce the period of cancellation of his clients driving licence. On the other side, Ms. Atupelye Makoga strongly opposed the present appeal on the following grounds; First, she submitted that the third ground of appeal is an afterthought, hence; she proposed not to arguejagainst it for being unmerited. .&■ Secondly, she submitted that the first and fourth grounds-ofappeal have no merits because sections 41 and 42 of the Road Traffic Act. which create traffic •-if’W-XvX offences the appellant was charged with before ffetnal court, have been referred to under section 27 (1) (a) of the said Statute which empowers the trial court to order for cancellation of the convict's driving licence. Therefore, it was her submission that tho order of cancellation of the appellant's driving licence was in accordance with the law and the trial court considered the TF'' Tanzania Sentencing Manual, as it appears at page 8, paragraph four of the trial court typed proceedings. In regards to the argument that the trial court omitted to consider the proviso to section 27 of the Road Traffic Act, the respondent's counsel submitted that availability of some good cause depends on the circumstances of a particular case, as it was stated in the case of John Ambrose @Mwanamlilo v. 7 Republic, Criminal Application No. 8 of 2023 [2023] TZHC 21502 (2 October 2023) which she cited in order to cement her proposition. Having argued so, she submitted that the sentence passed by the trial court was proper, thus she prayed to the court to dismiss the appellants appeal for want of merits. Thirdly, the learned State Attorney submitted that the trial court considered the mitigating factors of the appellant and the provisions of section 63 (2) (b) ft, ft . Fft of the Road Traffic Act before sentencing him. Hence, ;she was of the view that 'ft the sentence which was awarded to the appellant was not excessive. Her fourth and last reason yyas that regarding the issue of fine, this being the "ft first appellate court, it has a mandate to reevaluate the evidence of the trial court and wear its shoes to access the fine imposed by that court. ft ft ''ft. In rejoinder, the appellants' counsel reiterated his previous submissions regarding the trial court's failure to consider the appellant's mitigating factors, ft "ft the Tanzania Sentencing Manual and the need to consider if there were special reasons for ordering a shorter period of the appellant's driving licence cancellation. Having considered the grounds of appeal fronted by the appellant, the rival submissions of the parties' counsel and examined the records of the trial 8 court, I shall now proceed to determine the whether or not the present appeal has merits. As I have shown above, there are four grounds of appeal presented by the appellant in his petition of appeal. However, it is my settled view that the third ground of appeal need not consume the time of this court because the facts which were read to the appellant, as shown from pages 2-4 of the trial court typed proceedings, do not reVeal that the deceased contributed to the occurrence of an accident leading to her demise. Hence, I;agree with Mr. Atupelye Makoga that ground number : three raised by .the appellant, is an afterthought and I proceed to dismiss; is for want of merit. Having done so, let me nowideal with the remaining grounds of appeal. In the 1, ■■■!?}. first ground, the appellant through his advocate, has faulted the trial court for _J." «. \ -rj ?■,. • \ f jf V ^1- -f -r Zr- ■ V: -ffix? not complying with the procedure of cancellation of the appellant's driving licence arguing that in ordering cancellation of the appellant's driving licence for at period of three years from the date of his sentence, the trial court contravened the law for its failure to consider the proviso to section 27 of the Road Traffic Act together with the appellant's mitigating factors including the appellant's plea of guilty, which is contrary to the guidelines contained in the Tanzania Sentencing Manual. On her side, Ms. Atupelye Makoga while conceding that there is such proviso under section 27 of the Road Traffic Act, has contended that the availability of 9 some good cause depends on the circumstances of a particular case. Unfortunately, she did not conclude her argument by stating her position whether or not there were some good course which could have justified the trial court to order a shorter period; instead, she maintained that the order of cancellation of the appellant's driving licence was in accordance with the law and by the trial court considering the Tanzania Sentencing Manual. First of all, I wish to make it clear that the mitigating factors are relevant to be used in assessing a proper sentence to be 'iijiposed/ uponah accused person V‘‘ ip.^. and are quite different with the reasons to be used irifmaking an order for cancellation of a driving licence; see The Republic vs Hassan Buyogera George, Criminal Revision No. 10 of 2019 (HCT at Songea, unreported). Hence, the trial courts,have to distinguish between mitigating factors and special reasons for making an order for a shorter cancellation period. It appears, .that the counsel for the parties herein did not manage to draw that borderline when submitting about mitigating factors and special reasons to be W iA 'i; used in making a cancellation order. It is therefore, my hope that from now :I: v ’wf onwards; they will be able to distinguish between the two. Secondly, I have gone through the rival submissions of both counsel herein and observed that the centre of their dispute is on the argument that the trial court failed to consider if there were special reasons for reducing the period of cancellation of appellant's driving licence. io Section 27 (1) (a) of the Road Traffic Act provides as follows: - 'Mandatory cancellation or suspension of driving licence (1) Any court before which a person is convicted of— (a) a first offence under section 40, 41, 42 or 44 or paragraph (c) of section 52 shall cancel such person's driving licence for a period of not less than three years and shall declare that person to be disqualified from obtaining a driving licence of any type during such period..[Emphasis supplied] ry It is apparent from the above provisions of the law that once the accused has been found guilty and convicted of the first offence under section 40, 41, 42 or 44 or paragraph (c) of section 52 of the Road Traffic Act, it becomes vyv. 4^.-.. mandatory for the trial court to cancel his/her driving licence for the period of rdd' dd dr. '"ddr-c not less thamthree years and declare that person to be disqualified from obtaining a driving licence of any type during such period. However, under the same section there is a proviso which indicates that: "...uniess the court for special reasons thinks fit to order a shorter period of cancellation or suspension of that person's driving licence and to order him to be disqualified from obtaining a driving licence for a shorter period or not to order him to be disqualified' ii What the above proviso means: is that although there is a general rule to the effect that the trial court should cancel the convict's driving licence of a period not less than three years, still there is an exception to that general rule as indicated in the proviso to section 27 of the Road Act; the only threshold for such proviso to be invoked, is where there are special reasons to make the trial court order a short period than the one stipulated.-under section 27 (1) (a). ife-. • -vW-.i ' - R-j ••: ?: •’ <■? . The appellant's complaint is that by failing^p consider if there were special reasons for ordering a shorter period; of his driving licence cancellation, the trial court contravened the law. On that, r definitely agree with the appellant's counsel that the trial court contravened the provisions of the law, as stipulated under the proviso to section 27 of the Road Traffic Act. This is because' before making an order cancelling the appellant's driving licence, the trial magistrate did riot consider if there were special reasons for shortening the maximum period of three years, as it is shown at page 9 of the trial court typed proceedings. He instead, invoked the provisions of section 27(1) (a) of the Road Traffic Act, cancelled the appellant's driving licence for a period of three years and disqualified him from obtaining a driving licence of any type during such period. In my view, that was not proper and I am inclined to agree with the 12 appellant's counsel that there was total contravention of the law on that aspect. Also, as I have indicated earlier, the respondent's counsel omitted to state whether or nor there were special reasons to order a shorter period. This makes the appellant's complaint to be with merit. Again, it is worth noting that before making a cancellation order, it is imperative for the trial magistrate to afford the accused with an opportunity to explain why his driving licence should not be cancelled for' .the maximum period as indicated in the provisions of5section 27 (1) (a) of the Road Traffic Act. That position was stated by this court in the case of Republic vs Hassan Buyogera George (supra) where it was stated, Znte/ alia, that: "...the trial magistrates toconsiderifthere are special reasons which will warrant reduction the period, in order to make a judicious decision theaccusedpersonshould be asked if there are special reasons which will warrant him a shorter period of license cancellation. The same should be apparent on the record. [Emphasis supplied] I am persuaded to follow that decision as I proceed to determine this case because in the records of the trial court and with particular reference to page 9 of its typed proceedings, there is nowhere it is shown that the trial magistrate gave the appellant such crucial opportunity to assign the reasons why shouldn't his driving licence be cancelled for a period of not less than 13 three years. This means the appellant's reasons were not recorded by the trial magistrate which is why they are not apparent bn the record. It is my strong opinion that had the trial magistrate properly directed his mind on the importance of giving the appellant such opportunity, he would be in a good position to ascertain whether or not there were special reasons to order a shorter period than the one stipulated under section 27 .(1) (a) of the Road Traffic Act and that would have made him to make proper order as. per the law. “ In my view being employed in a public sector as a driver/the appellant would in no doubt depend much on that career to get his daily bread for subsistence JF.. of himself and this family members^Thus/Xancelling his driving licence for a longer period like the one fixed by the trial court, is tantamount to denying his Constitutional; right to; work- and get some wages for that purpose. This Sis#*. however;; does not mean that the law providing for cancellation of driving licence in our country is; of no effect; the point I am trying to make here is that the trial magistrates should always remember to ask the accused persons if they have any special reasons to warrant a shorter period and put those reasons (if any) apparent on record, as it was emphasized by this court in the case of Republic vs Hassan Buyogera George (supra). Before concluding on the first ground of appeal, I find it apt to state that sentencing of a first offender who is convicted under section 40, 41, 42 or 44 14 or paragraph (c) .of section 52 of the Road Traffic Act, goes together with cancellation of the accused person's driving licence and disqualifying him from obtaining another driving licence during the period of cancellation set out by the trial court. That is a position of the law as stated under section 27 (i) (a) of the Road Traffic Act which I need not reproduce here. Therefore, I with all due respect partly differ with the drafter of the appellant's petition of appeal who inter alia, attempted to fault the trial court, through the first ground of appeal, for convicting and sentencing the appellant twice in the same offences by ordering payment of fines and cancelling the driving licence for the period of three years. Thus, owing to the foregoing reasons and that extent, I find the first ground of appeal to be meritorious, g ' In the second; and fourth grounds of appeal, the appellant's complaint is one that the sentence awarded to him was excessive, though in my view, the only slight difference is that in the second ground, he has complained that the trial mag istrate sente need him without considering his mitigating factors whereas in the fourth, he has faulted the said court for failing to consider the Tanzania Sentencing Manual. I will quickly test the merits or otherwise of those grounds together. The cardinal principle in our criminal law is that an accused person convicted on his own plea of guilty is barred to appeal against sentence except as to the 15 extent or legality of the sentence; see Juma Hussein vs The Republic, Criminal Appeal No. 86 of 2023 (HGT at Mwanza, unreported). As I have alluded earlier in this judgment, the records of the trial court depicts that the appellant pleaded guilty to all three counts before he could find himself been convicted and sentenced, as above stated. This means he could not be allowed to appeal against the sentence resulted from his own plea of guilty. ■LSife. 'Wi. '■ However, the rival argument between his advocate arid the respondent's ,^;ii wbW"" counsel is based on the extent of the alternative sentence he earned from the -W' trial court. This means therefore, that the said appellant was entitled to appeal against those sentences. Having unlocked that legal barrier, I will how determine whether the sentence awarded to the appellant herein, was excessive. To begin with the first limb of the appellant's complaint that the trial court omitted to consider his mitigating '■ AX. factors, that complaint was strongly disputed by the respondent's counsel who referred the court to page 8 of the trial court typed proceedings which reveals that in assessing the appellant's sentence, the trial magistrate considered not only the appellant's mitigating factors, but also the Tanzania Sentencing Manual. Hence, I am in agreement with the respondent's counsel that actually there was such consideration by the trial magistrate. 16 However, I am with all due respect to the learned State Attorney not inclined to accept her argument that the sentence awarded to the appellant, was not excessive, but in accordance with the law. This is because one; in sentencing the appellant, the trial magistrate purported to show that the appellant had been charged under the provisions of the amended Road Traffic Act and therefore was supposed to be penalised in accordance with such amended law, but instead of mentioning such amendment, he just, ended by using "V'V. words, "Road Traffic Act Cap 168 R.E 2002,as amended"is shown from pages 8-9 of the trial court's typed proceedings, which to me and perhaps every good lawyer, is not a proper way of citing the law. If I were to choose some other good words in describing the procedural error committed by the trial, magistrate, I would have simply say it is as if the appellant was sentenced under unknown law which is a fatal irregularity. Two, at page 4 of the trial court typed proceedings, the trial magistrate cited the law he used to convict the appeal as, "...Road Traffic Act Cap 168 R.E 2002 "and not as an amended Act. 'J.'.’tvj.V/n’.1" --v Not only that, but also when making his submission before the trial court about aggravating factors as it is shown at page 6 of the trial court typed proceedings, the Public Prosecutor had the following to say: - "...I pray the court to adhere to the provision of law under which accused is charged with../' 17 The above excerpt indicates clearly that the trial magistrate was pleased, if not reminded, to invoke the provisions of the law the appellant was charged with, when sentencing him. Now what were those provisions? The answer to that crucial question is not farfetched and can obtained from charge sheet tabled before the trial court for admission. At this juncture/1 propose to reproduce the relevant part of that charge sheet which depicts the law used to charge the appellant, as hereunder: 77V THE DISTRICT COURT OF MLELE DISTRICT /4TAf££Z.£ T7MFFZC C4S£/Va 12 OF2022 REPUBLIC W- VERSUS w 1 YUSUPH S/O SHAHA @MKIMA charge 1ST COUNT CAUSING DEATH THROUGH CARELESS DRIVING: Contrary to Section 41f 63(2) (b) and 27 (1) (a) of the Road Traffic Act {Cap 168 R.E. 2002..."(the underling is mine] 18 I have opted to underline the cited law in the above relevant part of the charge sheet purposely in order to show that it was the Road Traffic Act, Cap 168 R.E. 2002 which Was used to charge the appellant when he was arraigned before the trial court and not otherwise. That being the case, then the nagging question is, does that law direct the trial court to impose a fine sentence of Tshs. 300,000/= or to serve a custodial T'-r --t- sentence of two years in default for a person convicted of first offence under sections 41 and 42 of the Road Traffic Act, as it happened to' the appellant? Definitely the answer to that question is in the negative. Why? Because, under the Road Traffic Act, Cap 168 R.E. 2002 which is still enforceable to date, the penal provision which makes an internal reference to the provisions of section 41,42 and others which are not relevant to this appeal at the moment, is section 63 of the Road Traffic Act which provides that: '’X'Aa, "63. Penalties for offences under Part IV (2)Any person who is convicted of— (b); an offence under 41, 42 or 44 shall be liable to a fine of not less than fifteen thousand shillings but not exceeding fifty thousand shillings or to a term of imprisonment of not less than two years but not exceeding five years..."[Emphasis supplied] 19 My understanding of the above provision of the law is that a person who is convicted of the first offence under section 41 and 42 of the Road Traffic Act, should be sentenced to a fine of not less than fifteen thousand shillings but not exceeding fifty thousand shillings and in case of default thereof, the imprisonment sentence to be imposed against him/her should not be less than two years but not exceeding five years. However, in the case at hand it is unfortunate that the trial magistrate misconceived the law and ended at sentencing the appellant to pay a fine of "vh:. three hundred thousand for each counter to serve.an imprisonment sentence of two years which in all fours, is too excessive and contrary to the law. Therefore, based on the/reasons I have assigned herein above while addressing the second and fourth grounds of appeal, it is my conclusive •. . \...,); ■- - -■& r finding that those grounds have merits. The totality of the above, makes this court to answer the above main issue positively that the present appeal is meritorious. Consequently, I hereby allow the appeal to the extent stated above and proceed to set aside the sentence imposed by the trial court in respect of the first, second and third counts and in lieu thereof substitute it with a sentence of 50,000/= (fifty thousand shillings only) in respect of each of the abovenamed counts to the effect that in default of payment of those fines, the offender shall serve a concurrent sentence of two years (2) imprisonment from the date of he was sentenced. 20 Regarding the order of cancellation of the appellant's driving licence, having found that it was made contrary to the law as reasoned above, I hereby vary the period of cancellation set out by the trial court from three (3) years to one year (1). It follows therefore, that since the impugned cancellation order of the trial court was made on 29.12.2022 as it is shown at page 9 of the trial court typed proceedings, it means up to the moment this judgment is being delivered, the appellant has already consumed that shorter period. That being said and done, I therefore, declare him to be qualified to obtain any driving licence after following the available legal steps for obtaining a driving licence so that he can resume his previous work as before, believing that for the period he has been under disqualification, he has already learnt and shown some remorse. It is so ordered. 30.07.2024 DATED at SUMBAWANGA this 30th day of 2024.