republic vs amos mathias masibuka dr amos 2023 tzhc 20070 14 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA CRIMINAL SESSION CASE NO. 56 OF 2023 (Original PI No. 24 of 2022 at Nzega District Court) REPUBLIC VERSUS AMOS MATHIAS @ MASIBUKA @ DR. AMOS RULING ON SENTENCE Date of Last Order: 01/08/2023 Date of Ruling: 14/08/2023 MATUMA, J Amos Mathias @ Masibuka who is also famously known as Dr. Amos herein stood charged of Murder Contrary to section 196 and 197 of the Penal Code Cap. 16 R.E. 2022. He was alleged to have on unknown date of June, 2022 at Nhungulu area in Mwangoye Village within Nzega District in Tabora Region murdered one Lukwaja s/o Selemani. On the 1st day of August, 2023 he was arraigned before this court for plea and Preliminary hearing. When the charge was read over and explained to him, he denied the charge of murder but offered the plea of guilty to the lesser offence of manslaughter in case the prosecutions accept such offer. Mr. Robert Kumwembe learned State Attorney who was assisted by M/S Orester Kemilembe learned State Attorney informed the court that the prosecutions had no objection ta-the offer. Tbey'thus accepted to reduce the charge of murder into that of Manslaughter. The accused was then arraigned of manslaughter contrary to section 195 and 198 of the Penal Code, Cap. 16 R.E. 2022 in which he pleaded guilty and admitted the incriminating facts by the prosecutions as being true and correct. Having been satisfied that the plea of the accused was unequivocal and that the facts of the prosecutions against the accused sufficiently established the offence of manslaughter against him, I found him guilty of that offence and convicted him accordingly. After the conviction, the parties contested on the appropriate sentence that should be passed. Mr. Akram Magoti learned advocate who represented the accused in his sentencing submissions raised eight mitigating factors to be considered in favour of the accused so that he is leniently sentenced while Orester Kemilembe learned State Attorney had four aggravating factors in which he called for severe sentence. Before dwelling into such aggravated and mitigating factors, let me give out the brief facts leading to this matter. The accused herein a 35 years old man and resident of Mwamala ward within Nzega District in Tabora Region used to impersonate a medical officer commonly known as "doctor". Under such impersonation, he used to practice as a doctor by visiting sick people at their homes and sometime such sick persons visit him at his home for examinations and treatments. Among the medical services he used to practice are; "kutahiri wanaume, kujifungua wanawake, upasuaji wa mabusha, kupima marelia kwa MRDT, huduma ya kuopgeza maji kwa 2 wagonjwa, kupima ukimwi, kung'oa mono, kutoa ushauri kwa baba na mama juu ya uzazi wa mpango, kutoa dawa kwa wagonjwa wa maradhi mbalimbali." In the course of such practices, on unremembered dates of June, 2022 he was informed that the deceased was sick of hernia. He visited him at his home and made his examination. He then advised the deceased's relatives that a surgery on the left scrotum was necessary. They acceded to the advice and allowed him to do what he observed necessary. The deceased who was too old (78 years) seems was not involved anyhow. The accused thus conducted surgery on the left scrotum of the deceased. He then admitted him to pain killers and left. Soon thereafter he was called back and told that the deceased was not healing but the condition was getting more worse as the stomach was extending (swelling). The accused quickly responded and on his examination of the deceased's stomach, he suggested an operation (surgery) of the stomach. He made the suggested surgery and left. The two operations did not heal but caused medical complications leading to worsening of the deceased's healthy. The accused was once consulted and this time after having examined the condition of his patient, he advised the relatives of the deceased to rush him to the District hospital at Nzega. The deceased was thus rushed to hospital but it was too late as he did not take any long to die. The accused was then arrested hence this case against him. The accused is a form four leaver who according to his own cautioned statement attended Enrolled Nursing course at Sumve Nursing College nursing studies or not or whether he was issued with the requisite certificate. Even though the Enrolled nursing is the lowest grade of nursing studies because the Enrolled Nurse holds a certificate in nursing while the holder of Diploma in nursing is a Registered Nurse and that of a degree is a Nurse Officer. Therefore, the accused be it as it may whether he passed or not was the nurse of the lowest grade in the nursing grades. It is upon this historical back ground, the prosecution argued this court to pass a severe sentence for he has abrogated article 14 of the Constitution of the United Republic of Tanzania which guarantees the right to life, that the accused was unauthorized to conduct the surgery and on conducting such surgery he did the same without adhering to safety precautions by conducting the surgery on unconducive place. M/S Orester Kemilembe learned State Attorney further argued that the accused who is a nurse according to his own cautioned statement, could have not conducted surgery even if he would have a licence in his nursing carrier and that the deceased was too old (78 years old) whom the accused ought to have advised his relatives to take him to hospital instead of purporting to treat him by his own. Despite of such aggravating factors, Mr. Akram Magoti learned advocate who represented the accused argued this court to pass a lenient sentence on the grounds that; i) The accused is the first offender without any criminal records. ii) That the accused is not tabula-rasa in the medical field but an experienced medical attendant who practiced as such for more '4 than six years and during this period he attended many patients who have completely healed. Hi) That what happened to the accused could happen even to qualified and authorized doctors as there are cases in which patients dies in hospitals after being attended by doctors. iv) That the accused was useful in the society and used to assist the people especially at the interior where medical services are not easily reachable. That he used to treat people and when he fails he used to advise them to go to hospital as he did to the deceased in this case. v) That he has pleaded guilty and at all times he was confessing the crime which has served not only the time of this court but also costs which would have been otherwise incurred had the case undergone a full trial. vi) That the accused has been in remand custody for almost one year and two months which is enough for him to learn a lesson for the crime he has committed. vii) that with his youthful age of only 35 years the accused needs to be reintegrated into his society for him to work for the society and that he is repenting of the crime. viii) That the accused has a wife and three children who depends on him. Under the herein mitigations, the learned advocate for the accused argued this court to pass a lenient sentence which wouldj^sult into the accused joining his family and the society so as to avoid the state to incur costs for keeping him as a prisoner. I have taken my considerable time to think and rethink of the circumstances surrounding this case so as to ascertain the proper sentence to pass that would be proportionate, fair, just and proper in accordance to the sentencing principles as per the Sentencing guidelines by the Judiciary of Tanzania. To the prosecution the proportionate, just and fair sentence is that which would be stiff due to the fact that the accused illegally practiced as a medical officer by operating the deceased twice on the scrotum and stomach not only without authority but also without having the requisite profession as a result he terminated the life of the deceased in contravention of article 14 of the Constitution of the United Republic of Tanzania which guarantees the right to life. On the other hand the defence strongly argued that the circumstances of the case calls for a lenient sentence because the accused is the first offender, has been in remand custody for a year and two months, has pleaded guilty, has dependants, he is not completely tabula-rasa in the medical field, was just serving the poor society at the interior where medical services are not easily accessible and that what befallen him was just an accident because he has already attended many others successfully. All the mitigating and aggravating factors above having been considered, we should bear in mind that the purposes of sentencing against convicts of criminal offences in accordance to the Tanzania sentencing Guidelines, 2023 is to promote respect for the layyJn order to maintain a just, peaceful and safe society as well as to promote initiatives to prevent crimes by either specific deterrence or general deterrence. Specific deterrence meant to deter the specific convict from committing further crimes while the general deterrence meant to enter a sentence that would prevent the general community from learning into crimes and committing the same. Sentencing is also meant to denounce unlawful conduct in order to ensure that the offender is adequately punished within the confines of the law creating the offence (retribution), protecting the community by separating an offender from it where necessary (incapacitation), rehabilitate the offender and re-integrate him back into the society (reformation) etc. See; The Tanzania Sentencding Guidelines supra at page 1 and 2. I will therefore be guided with the purpose of sentencing when scrutinizing the mitigating and aggravating factors to ascertain the appropriate sentence in this matter. I appreciate that the offender in this case "Dr. Amos" is the first offender, has spent a year and two months in remand custody and has pleaded guilty as mitigated by his advocate Mr. Akram Magoti. This normally is considered towards reducing the sentence. The fact that the offender has dependants is not that much wealthy to be considered especially when the offences committed was committed for gain. This is because we need not to benefit dependants for criminal gains as I once ruled out in the case of The Republic versus Mhajiri LHadi & 2 others, Criminal session no. 19 of 2019 in the High Court at Kigoma. The welfare of the society and the community at large is paramount to individual dependants who are fed up by criminal gains. Sometimes it is in the interest of justice to have the offender adequately punished including separating him from his dependants by imprisonment term so that the dependants learn out that crimes do not pay and therefore disassociates themselves from crimes even if they had started to enjoy the fruits of crimes from their breadwinner. Also it would serve the purpose that dependants would stop each other from committing crimes bearing in mind their breadwinner who is incarcerated into prison. That is general deterrence. Also in the case of Alexander Mpelemba versus The Republic (1990) TLR 2 this court by Honourable Justice Mchome as he then was, held that having dependants is not a mitigating factor in sentencing since the appellant ought to have thought of the dependants and refrained from committing the offence. I subscribe to such stance of my learned brethren. Mr. Akram Magoti learned advocate also pressed that the offender although was not authorized to examine the victim and conduct the surgery which resulted into the current crime, was not tabula rasa but was an experienced medical attendant who had for six years attended various patients who were completely healed. I am far away to agree with the learned advocate. Everyone is tabula rasa to any field he has not been trained for, passed and authorized to practice. In the instant matter the offender herein stated in his Cautioned Statement that he is a form four leaver at Lalago Secondary School in the year 2009. Thereafter he joined Sumve Nursing College for Enrolled Although no documentary evidence was produced to authenticate such medical knowledge obtained by the offender, still the holder of certificate in Nursing (Enrolled Nursing) is tabula rasa to the duties that can be performed by a Registered Nursing or Nurse officer as explained supra. When it comes to duties of Medical officers, nurses of whatever category be it Enrolled Nurse (EN), Registered Nurse (RN) or Nurse Officer (NO) are tabula rasa to the duties confined to Medical officers. In that respect the offender herein was tabula rasa to what he did i.e. surgery. He himself confessed as such when he stated in his cautioned statement; "Kimsingi sikuwa na uhalali wa kufanya upasuaji wa huyo mgonjwa maana sikuwa na sifa za kutoa huduma hizo" He was thus tabula-rasa and any experience allegedly he had, was illegally obtained as the offender did not attend any course authorizing him to conduct surgery procedures. The illegally obtained knowledge cannot be beneficial to the offender more so when the offender had no practicing licence, permit or authority to conduct not only the surgery but all other medical services he rendered as he himself confessed in his cautioned statement; "Shughuii zangu za utabibu nimefanya haii ya kuwa sina ieseni hivyo sina uhalali wa kufanya shughuii hiyo, nafanya kwa kujiiba." Therefore, the mitigated factors that the offender herein is an experienced medical attendant is useless and cannot be given weight. On the other factor that he has healed so many others, I find that no evidence to that effect. This is because the offender had no record management system of the services he rendered. HejusedTo attend patients, taking his gains and leave them. We have no records of the exact number of patients he attended and those who were completely healed. We cannot therefore assume that all those whom he attended were completely healed. The other possible suggestion that they might have also suffered medical complications and injuries is true. I thus reject this argument. Likewise, I reject the argument that the offender was rendering services to poor people especially at interiors where medical service is not easily reachable and therefore was an important and useful to the society. I reject this argument because he was not doing all these for free. He was working for gain. In that respect he was an obstruction to the people from finding out proper medical services from relevant healthy facilities for his illegal services. In the instant matter he obtained from the deceased's family Tshs. 140,000/= out of Tshs. 200,000/= they had agreed as he himself stated in the cautioned statement; "malipo ya kazi hiyo yalikuwa Tshs. 200,000/= shilingi laki mbi/i tu ambapo walinilipa kwa awamu kwa kunitangulizia Tshs. 140,000/= laki moj'a na elfu arobaini, hata hivyo hawakunimalizia Tshs. 60,000/= elfu sitini baada ya mgonjwa wao kufariki" For dental services he was charging Tshs. 15,000/= to uproot the teeth. He was therefore not serving the poor but was making an illegal business and therefore not useful to the society but a harmful man to the society who diverted the society from a proper channel of medical services into an illegal, unsafe, dangerous, and unauthorized medical practices. Many might have suffered at his hand and gone undetected at the period of six io years he has been in such illegal practices. He subjected the society into medical risks which resulted into the current death in question. Therefore, the remaining mitigating factors which are relevant and are to be given weight is that the accused is a first offender, has spent a year and two months in remand custody and has pleaded guilty to the charge which has served the time and costs had the matter undergone a full trial. He has as well confessed from the right beginning during interrogation which has always been considered to be a repent of the offender to the crime. In sentencing these factors have always been considered and used to exercise a lenient sentence to the offender. In the case of Nemes Myombe Ntalanda versus The Republic, Criminal Appeal no. 1 of 2019 the Court of Appeal reduced a sentence of life imprisonment to only twenty years jail term because it considered that the offender in maintaining the plea of guilty by confessing to police, pleadings guilty to the charge and admitting all the incriminating facts by the prosecution shows remorsefulness for what he did. With this binding authority I find the same in this case. The offender was initially charged of murder but he volunteered to plead to the lesser offence of manslaughter. His offer having been accepted by the prosecution he pleaded guilty to the charge and admitted all the incriminating facts by the prosecutions. Such conduct along with the fact that he confessed at police through his cautioned statement exhibit P2 shows that he is repenting for what he did. He should therefore benefit from such remorsefulness. The question now is; to what extent should he benefit. Th^offence under which 11 he has been convicted is punishable for life imprisonment as a maximum sentence. See; section 198 of the Penal Code supra. In accordance to the sentencing guidelines supra, the convict of manslaughter should be sentenced by considering the level of seriousness of the offence on the manner it was committed i.e to consider whether the commission of the offence was seriously committed at the High level, Medium level or Low level. These levels are determined as I have said supra by looking the motive behind the crime and the manner in which the crime was committed. The circumstances of the current matter dictates that "Dr. Amos" committed the crime at the highest level because he used dangerous weapons in committing the crime which are surgery instruments, he inflicted serious multiple wounds by making two serious operations at the scrotum and the stomach, the victim killed was in the vulnerable group by reason of age and disability to decide by his own. Suffered a lot from the acts of the offender herein as he suffered infectious wounds and inflammation of the peritoneum. The two surgery wounds were discharging pus. The paraumbilical region (eneo la kuzunguka kitovu) was became necrotic which means the fresh around were not viable or in Swahili I may put it in that nyama za vidonda kwenye eneo la kitovu hazikuwa na uhai and therefore could not heal. By the time the deceased was sent to hospital he was at GCS 11 over 15 which is defined as a Glasgow coma scale assessing that the deceased by that time was at the state of semi-conscious. Pulse rate and body temperature were both abnormal. The deceased also suffered partial intestine obstruction due to obstructed inguinal hemia'TWith all these there is no doubt that the sentencing guidelines covers the current crime into having been committed at the highest level. According to the sentencing guidelines, the starting sentence against the offender of manslaughter who committed the offence at the Highest level is ten (10) years custodial term. The circumstances surrounding a specific crime may call for the increase of the sentence from ten years up to life imprisonment. Now in the instant matter, I find that the offender was so courageous in committing the crime. He took advantage of vulnerability of the deceased who could not decide on his own to convince his relatives that he had to make the two surgeries probably to benefit more charges which ultimately resulted into all these problems. It is this illegal practice in my view has caused the offender to relax without looking for a legal job to gain and earn his living because he used to obtain undue advantage in his illegal practices. I also find that the society and community of Tabora Region and Tanzania at large need the protection by the law against these kinds of offences which seems to be rampant and repeatedly. In the case of Christina Damiano versus the Republic, Criminal Appeal no. 178 of 2012, Christian Damiano was charged and convicted of murder. Her appeal to the Court of Appeal was dismissed for having no merits. The circumstances, facts and evidence led to her conviction of murder are less similar to the facts in the instant matter. She had invited a pregnant woman operated her and took away the child. The deceased in that case Siyawezi Bundala died of such unauthorized operation which was executed illegally. Again in the case of Sara d/o James @ Sarah Majuta, Criminal Appeal no. 44 of 2021 (HC) at Shinyanga, the accused's appeal was dismissed in which she was convicted for among other offences impersonation as a "doctor which resulted into her attending students of Kolandoto Medical College as a supervising doctor from the Ministry of Healthy. She had forged introduction letters from the Ministry and forged identifications. This fake doctor had a previous criminal record as she was once convicted by the Resident Magistrates Court of Mtwara vide Criminal Case no. 144 of 2015 in which she was impersonating as a doctor and attend patients for gain including carrying out serious medical procedures as it has been done by the current offender. Under the circumstances, the society and the community of Tanzanians is in danger of these dishonest individuals if they are left to integrate the society. A human body cannot be allowed to be abused or tempered with by unqualified and unauthorized people like what happened in the instant case. It is unfortunate that"£>r. Amod' herein did not mention even a single person from his own family or clan he had attended as if at the period of six years he has been in an illegal practices none of his family member required any medical attention from him. He has named a number of people whom he has uprooted/extracted teeth, administered them to different medicines and given them several other medical services. Out of all them none gfUMs'own family is in. He was 4 therefore putting in danger and risking those who were distant to him. His brain was well calculated against third parties and not his own family or relatives. Not only that but also he was not careful in the execution of such medical services though illegal. He executed the operations at the unsafe place as rightly lamented by the learned state attorney M/S Orester. Thus for instance, in the instant case in accordance to exhibit P3 which is a sketch map of the crime scene the operation/surgery was conducted on a mud made bed (kitanda kilichojengwa kwa tope). The surrounding circumstances in the deceased's room which was turned by the offender into being an operating theatre was not safe and conducive for the surgery he carried out. He was therefore careless. We are not even sure whether the surgery instruments used were safe for the purpose. As a result, the deceased suffered septic wounds which resulted into septicemia and subsequently death. All these suffices for the maximum sentence of life imprisonment but as I have already said earlier the offender has offered a plea of guilty to the lesser offence of manslaughter, has pleaded guilty to the same, has admitted all the incriminating facts by the prosecution and has already spent in remand custody a year and two months. I have also considered his conduct when he advised the deceased's relatives to rush the deceased to Nzega District Hospital after he had found that the condition of the deceased was deteriorating due to the surgery he has done. The inference of his advice is that he was readyjto be disclosed for what he did because it was expected that at£h£nospital the history of 5 the patient would be required in the first instance and that is why the prosecution facts did not state whether he restricted such relatives not to disclose and reveal all what happened. Under the circumstances and to strike the balance between the aggravating and mitigating factors, and for the need to protect the society at large I find that the sentence that shall serve both specific and general deterrence is required. I thus and do hereby sentence the convict herein Amos Mathias @ Masibuka @ Dr. Amos to serve a custodial term of fifteen (15) years. I expressly inform him that he has the right of appeal to the Court of Appeal of Tanzania against this sentence and in so doing he has to lodge the Notice of intention to appeal within sixty (60) days from the date of this 16