republic vs shadrack kapanga 2023 tzhc 23775 5 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT PAR ES SALAAM CRIMINAL SESSION CASE NO. I l l OF 2022 REPUBLIC VERSUS SHADRACK KAPANGA RULING ON SENTENCE S.M. MAGHIMBI, J: The accused herein was charged with three counts of manslaughter c/s 195 and 198 of the Penal Code Cap. [Cap. 16 R.E]. Particulars of the offence as per the amended charge sheet connected the accused person with the death of three people named Emily Joseph Mutaboyerwa, an adult female, Damita and Daniella Joseph Mutaboyerwa both female children. The offence was alleged to have been committed on the 09th day of June, 2021 at Masaki Marykmol area within Kinondoni District of Dar- es-salaam Region. When the matter came for hearing on the 23/11/2023 the accused person pleaded guilty to all the three counts. The facts of the case were read over and explained to him and he admitted to all the facts as a correct version of what happened. This court entered an unequivocal plea of guilty against the accused person and consequently, the accused person was convicted of the three counts of manslaughter. What followed thereafter was the sentencing process. Upon lengthy submissions on mitigations for and against the accused person, this is a ruling on the sentence. In his submissions on mitigation, Mr. Verandumi, learned State Attorney representing the Republic started by pointing out that they have no previous records of the accused apart from the current offence. He then submitted that they wish to be guided by the Constitution of United Republic of Tanzania as amended, and they will also consider the provisions of the Penal Code and the Court Sentencing Guidelines, 2023 ("the Guidelines") particularly item 221 of the Guidelines, which imposes a duty on the prosecution to help the court in sentencing. Mr. Mrema then submitted that while executing the offence on 09/06/2021, the accused was 34 years old, emphasizing that he is a healthy abled youth who can manage any kind of punishment that may be imposed on him. Further to that, he submitted, according to Section 198 of the Penal Code, Cap 16 R.E 2019 ("the Penal Code"); for all counts of the offences committed, the highest punishment which is the maximum sentence is life imprisonment for each deceased that he had killed. He then talked of the brutality that was involved in executing the murder. Starting with what he did to the deceased in the first count, that is Emily, the one in the second count Danielle and the third count, Damita. Mr. Mrema elaborated that the accused hit Emily with a hammer; used for fixing nails, for demolishing walls or kokoto; five times until she fell down. He pointed out that the hammer was tendered in court as exhibit. He went on submitting that; as if that was not enough, the accused again took a piece of 'mpira' and tied Emily on her neck so that she does not make any noise. Thereafter he tied her to the two cars which were parked, elaborating that the brutality is of the highest being. His prayer was that this alone should be a factor for the court to look at and see that Emily died a horrible death. On the second count where the accused is charged with the offence of unlawfully causing the death of Daniella, his submission was that this was also a brutal death as the accused hit her three times on the head and Danielle fell and died instantly. He went on elaborating that on the third count, the accused again went upstairs where Damita was sleeping and hit her with a hammer and she also died. As if that was not enough, he locked the two girls inside, which he elaborated to be an act of horror because he wanted to make sure that they were dead. Mr. Verandumi went on submitting that on the 10th June, 2021, the accused fled from the scene of crime and ran away leaving the mother; Emily's; body lying between cars until the day he was caught by police. Otherwise, he argued, he would not have been caught and therefore 3 questioned if there was a good reason to do so concluding that there were no sufficient reasons to do so. It was also Mr. Verandumi's submission that the court should also consider the fact that his acts have left scars in many hearts of relatives of the deceased. According to Article 114 of the Constitution every human being has a right to life, this includes the deceased Emily, Danite and Daniella. That the crucial part is the accused ended those lives while thinking he has better reason to live than them. He referred to the accused Cautioned statement in which he said he was scared they may use their mother's weapon to harm him meaning that he was justifying his right to live than those girls. He concluded that the accused deserves a harsh and severe punishment as he had killed the whole family because Emily was a mother to Daniella and Damila and that at the time of her death, Emily was a widow after the husband died in October 2018 which meant the Mutaboyerwa's family has vanished having been finished by this Shedrack Kapanga. Further that the two girls had their own dreams and vision that had been terminated for filthy reasons advanced by the accused. That Emily was also a bread winner and taking care of her mother called Lized and when Emily was dying the mother was seriously sick and she used to get money from her for treatment and food. She is now suffering because Emily is no longer there. On those submissions, he prayed that the court considers the law particularly Section 198 of the Penal Code which prescribed a punishment and the accused be punished for each count that he was charged with and if possible, a maximum sentence. He concluded that this punishment should be a lesson and he should feel the same pain that was felt by the three deceased persons. In reply Mr. Myera prayed for the lenience of the court for reasons that will soon be apparent. He first submitted that his client is a first offender, he has also pleaded guilty to the offence. That the accused has asked him to tell the court that he regrets what happened and he is not proud of what he did. Having pleaded guilty to the offence, he has saved this courts time, he also cooperated with police all along and made his statement and extra-judicial statement. He has also saved court resources because we did not have to call any witness since he admitted the charge. Mr. Myera submitted further that the accused had been in custody from 11/06/2021 which is about 2 years and 5 months and all this time he has been regretting. That his client has been working with Emily's family diligently and living a peaceful life but on the incident day there was some misunderstanding which led him to act the way he did and he has been regretting ever since. He concluded by a prayer that while passing the sentence, the court should be lenient and considers their mitigating factors. 5 Having heard the mitigations from both sides and guided by the Sentencing Guidelines abovementioned, my reasoning of the sentence are elaborated. In the Guidelines, sentences are categorized from the manner in which they are executed, the weapon used and the like. In assessing a sentence, I have also considered several that could increase the seriousness of the offence such including whether the Victim particularly vulnerable. Facts of the case are that two of the victims of this crime are children who fall under the vulnerability group and one of the children having been sleeping while she was killed, it makes her more vulnerable and aware of the danger that was parading her last minutes in this world. The other factor I have considered is the fact that the accused made the victims sustain repeated assault on them and a further factor that the accused had an actual use of a weapon, a hammer which he repeatedly hit the victims. All these factors aggravate the sentence to be imposed on the accused because his mitigating factors could not outweigh the type of cruelty that was bestowed on the three victims. The next step is to see, under the Tanzania Sentencing Guidelines, 2023 ("the Guidelines") what would be the appropriate sentence to be imposed on the accused. In appendix B of the Guidelines, the offence of Manslaughter is categorised in three categoris, high level, mid-level and low-level. The offence under scrutiny falls Under the High-Level categories because the obvious factors elaborated under the category are present. The factors include use of dangerous weapon(s) or substance, serious multiple wounds inflicted on the victim and the offence involves killing of vulnerable person(s) in terms of gender and the killing was of more than two persons. Hence from the dangerous weapon(s) that was used which is a hammer admitted as exhibit. The accused has also caused serious multiple wounds on all the deceased and the people killed are considered vulnerable from the gender as all of them being females killed by a male adult. The sentence is also under maximum sentence because the accused killed more than two people. I am aware that a sentence that approach the maximum should not be imposed on first offenders, but I have borrowed leaf from the holding of the Court of Criminal Appeals in South Wales in the case of Smith vs. R. [2007] New South Wales Court of Criminal Appeal (NSWCCA)138 where the court emphasized that although sentence ap­ proaching the maximum should not be imposed on first offenders, but the court agreed that those sentences should only be imposed when the of­ fence comes close to the worst of its type. In the case at hand, although the offence the accused was charged with was reduced to that of man­ slaughter, but as I have elaborated above from what I gathered from the facts of the case, exhibits tendered and the submission of parties, the manner in which the killing was executed in all the three counts was the worst of its kind. Having the above in mind and looking at the aggravating factors as aired out by Mr. Mrema, the manner in which the people were killed, the innocent girl sleeping, I find that the accused should be subject to a stern sentence that will deter him from hurting other people, reform his brutality and ruthlessness. The sentence shall also be a lesson to other people with the like behaviour not to commit such serious offence. Having also in consideration of the fact that the effective gravity of the offences committed is the deciding factor in the determination of the sentence, in relation to what was deliberated above, the accused is hereby sentenced to serve 32 years imprisonment. Having been in custody for two years, under Section 117 of the CPA, the time spent is excluded hence he shall serve an imprisonment term of thirty (30) years. Dated at Dar-es-salaam this 05th day of December, 2023 8