THE REPUBLIC VS ASSAD ABDULRASUR AZIZ AND OTHERS MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM. MISC. CRIMINAL APPLICATION NO. 6832 OF 2024 THE REPUBLIC…………………………………………………..………………APPLICANT VERSUS ASSAD ABDULRASUR AZIZ…………………………...………………1ST RESPONDENT FAHAD ABDURAHMAN MUSSA…………………………….………..2ND RESPONDENT NATHAN JONATHAN…………………..………………………..……..3RD RESPONDENT NICOLAUS DAMAS NILAHI…………………..………………………4TH RESPONDENT FREDY DAUDI CHAHONZA…………………………..……………….5TH RESPONDENT IFAN ABBAS SALEHE……………………………………...…………..6TH RESPONDENT RULING Date of last order: 11/10/2024 Date of ruling:18/10/2024 A.A. MBAGWA, J. This is a ruling in respect of a revision against the sentence imposed by the trial Court (A.M. Lyamuya PRM) in Criminal Case No. 196 of 2024. The instant revision was opened by this Court suo motu following the complaint letter 1 with Ref. No. NPS/DSM/J.30/B/121 dated 13th March 2024 which was filed in this Court by the Regional Prosecutions Officer. The substance of the complaint was that the trial Court deliberately and without justification sentenced the accused persons contrary to the Plea Agreement that was entered into by the parties on 29th February 2024 and subsequently registered in Court on the 6th day of March 2024. In the complaint letter, the Regional Prosecutions Officer articulated that the accused persons agreed to plead to an offence of Abduction with Intent to Confine contrary to sections 246 and 247 of the Penal Code and consequently suffer a sentence three-year imprisonment but the trial Court went astray from the agreement terms and sentenced them to pay a fine of Tanzania shillings three hundred thousand (TZS 300,000/=) only. Following the above complaint, this Court, under its revisional powers, called the record suo motu with the view to satisfy itself with the correctness, propriety, and legality of the complained sentence. According to the record, the respondents who were the accused in the trial 2 Court were on the 30th October 2023 arraigned before the trial Court on an indictment of two counts namely, Armed Robbery contrary to section 287A and Abduction with Intent to Confine contrary to sections 246 and 247 both of the Penal Code. In the 1st count of Armed Robbery, it was alleged that on the 16th day of October 2023 at Msasani Beach Old Bagamoyo Road within Kinondoni District in Dar es Salaam Region, the accused stole one mobile phone make Iphone 14 PROMAX with IMEI 351596243061548 and IMEI2 351596242729400 with a value of TZS 3,500,000/=, a hand watch branded Fossil valued at USD 120, sunglasses valued at TZS 300,000/=, gold earring valued at TZS 500,000/=, a handbag and cash TZS 100,000/=, the property of HANI NOOH HUSSEIN, and immediately before and during such stealing did threaten the said HANI NOOH HUSSEIN with a pistol make GLOCK 19 in oder to retain the said stolen properties. In the 2nd count of Abduction with Intent to Confine, it was alleged that on the 16th day of October 2023 at Msasani Beach Old Bagamoyo Road within 3 Kinondoni District in Dar es Salaam Region the accused, by force, compelled one HANI NOOH HUSSEIN to go to Ujirani Street, Mbezi Beach area within Kinondoni District in Dar es Salaam and secretly and wrongfully confined her in the house of one HAIDARY KAAZI WAZIRI for four days. Initially, the respondents/accused pleaded not guilty to both offences. However, they subsequently entered into a plea bargain agreement with the Director of Public Prosecutions and agreed to plead guilty to the lesser offence of Abduction with Intent to Confine contrary to sections 246 and 247 both of the Penal Code. It was the agreement term that upon conviction, the accused/respondents would suffer a sentence of three-year imprisonment. The plea agreement was signed on 29th February 2024 and subsequently registered in Court on 6th March 2024. According to the trial court record, on the 6th day of March 2024 when the matter was called on in court, the charge was read, and the accused/respondents pleaded guilty to the offence of Abduction with Intent to Confine. Thereafter, the trial Court found them guilty and consequently 4 convicted them of Abduction with Intent to Confine contrary to sections 246 and 247 of the Penal Code. Nevertheless, the trial Magistrate did not impose the sentence provided under the plea agreement. Instead, he sentenced them to pay a fine of TZS 300,000/= or in default to serve three-year imprisonment contrary to the plea agreement terms. It is against this backdrop, that the Director of Public Prosecutions brought the complaints. When the matter was called on in Court on 18th March 2024, Mr. Clement Masua, the leaned State Attorney appeared for the applicant, Republic whereas the respondents were absent. Mr. Masua informed the Court that the efforts to locate and serve the respondents were underway. He thus prayed for re-service of the summons. After several adjournments, on the 8th day of April 2024, Mr. Hekima Mwasipu, the learned advocate appeared representing Nathan Jonathan, the 3rd respondent. However, Mr. Mwasipu's legal representation did not last as he appeared in court twice and thereafter disappeared with no notice to the Court. 5 The applicant’s efforts to serve the other respondents through normal means proved futile. As such, this Court granted leave to the applicant to serve the respondents through publication. The applicant published the summons thrice in the Mwananchi newspaper dated 13/04/2024, 26/04/2024 and 06/06/2024. Despite the three publications of summons, the respondents did not appear to exercise their constitutional right of a fair hearing. As such, on 19th August 2024, I ordered the hearing to proceed ex parte by way of written submissions. In his brief written submissions, the learned State Attorney referred the Court to the provisions of section 194D (6) of the Criminal Procedure Act and submitted that the trial Magistrate grossly erred in law to impose a sentence contrary to the plea agreement terms. He thus urged the Court to set aside the sentence of a fine imposed by the trial Court and instead sentence the respondents to serve three-year imprisonment as provided in the plea agreement. 6 I have had the occasion to scan the trial court record, particularly the plea agreement. There is no gainsaying that the respondents voluntarily agreed to plead guilty to the offence of Abduction with Intent to Confine contrary to sections 246 and 247 of the Penal Code. It is also undisputed that under clauses No. 12 and 19, the respondents agreed to serve a sentence of three years imprisonment. I find it apposite to let the relevant clauses of the plea agreement speak for themselves; ‘12. The accused persons agree to plea the offence of Abduction with intent to confine and each accused is ready to serve three years in jail. 19. The Court shall sentence to each accused person to serve three years in jail.’ Further, for purposes of precision, it is important to reproduce the provisions of section 194D of the Criminal Procedure Act [Cap. 20 R.E. 2022]. It provides; 194D.-(1) Any plea agreement entered into in accordance with the provisions of sections 194A and194B shall be registered by the court. 7 (2) The court shall, before it registers any such agreement, satisfy itself that the agreement was voluntarily obtained and the accused person was competent to enter into such agreement. (3) The court may pronounce a decision based on plea agreement or make such other orders as it deems necessary including an order to reject the plea agreement for sufficient reasons, except that, such rejection shall not operate as a bar to any subsequent negotiations preferred by the parties. (4) Where the court accepts a plea agreement- (a) the agreement shall become binding upon the prosecution side and the accused person; and (b) the agreement shall become part of the record of the court. (5) Where a plea agreement entered into in accordance with sections 194A and 194B is accepted by the court, the court shall proceed to convict an accused person accordingly. (6) Where conviction is entered in accordance with subsection (5), the court shall proceed to sentence the accused person in accordance with the plea agreement notwithstanding the sentence specified by the provisions of the applicable law. 8 Sub-section 6 above is of particular importance. It requires the trial court to impose a sentence that is agreed upon in the plea agreement. Further, Rule 18 of the Criminal Procedure (Plea Bargaining Agreement) Rules, 2021 ( Government Notice No.180 Published on 5/2/2021) herein to be referred to as ‘the Rules’ requires the sentencing court to take into account the punishment agreed upon. It provides; 18. Where the court accepts the plea agreement, the court shall- (a) record such agreement and proceed to convict and sentence the accused accordingly; or (b) make any necessary orders if the plea agreement does not dispose of the case. Although, in terms of Rule 21(2) of the Rules, the Court retains sole discretion in sentencing, such discretion should be exercised judiciously. The Court should sparingly exercise the discretion to deviate from the agreement terms. Otherwise, the object and intent of the plea bargaining agreement would be rendered nugatory. After going through the trial court record, I could not find compelling reasons 9 for the trial Magistrate to depart from the sentence of three years imprisonment that was agreed upon in the plea agreement. Therefore the sentence to pay a fine of TZS 300, 000/= that the trial Magistrate imposed was not only erroneous but also illegal as it is not even provided under the relevant provisions to wit, sections 246 and 247 of the Penal Code, to say the least. Thus, in terms of sections 372 and 373 of the Criminal Procedure Act, I invoke the revisionary powers of this Court and set aside the sentence of a fine of TZS 300,000/=. Instead, I substitute it for the sentence of three- year imprisonment. The respondents are therefore sentenced to serve a prison term of three years and the same shall commence upon their arrest. The respondents should be arrested and brought before this Court (Hon. Deputy Registrar) for issuance of the warrant of commitment. The sum of TZS 300,000/= which they paid as a fine should be refunded. As I close to an end, it is important to remark that this revision was opened by the Court suo motu at the instance of the complaint letter by the Director of Public Prosecutions. As such, it is expected that the DPP would not turn 10 this ruling to academic purposes only. But rather he is expected to invoke his statutory powers to give the ruling its meaning by ensuring that the respondents are arrested and brought before the Court in order to start serving their prison sentence. It is so ordered. The right of appeal is explained. A.A. Mbagwa JUDGE 18/10/2024 11