FRODIUS PROTAZI VS THE REPUBLIC CRIMINAL APPEAL NO 27 OF 2023

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA (CORAM: MUGASHA, J.A.. MWAMPASHI. J.A. And NGWEMBE. J.A.1 CRIMINAL APPEAL NO. 27 OF 2023 FRODIUS PROTAZI...........................................................................APPELLANT

VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Bukoba) fKilekamaienaa. J.^ dated the 14th day of July, 2022 in HC. Criminal Sessions Case No. 26 of 2022

JUDGMENT OF THE COURT 11th & 13th March, 2025 MUGASHA. J.A.: The appellant was charged with the offence of manslaughter contrary to section 195 and 198 of the Penal Code (Cap. 16 R.E. 2002). It was alleged that, on 10/10/2020 at Rushe village within Kyerwa District in Kagera Region, the appellant unlawfully caused the death of one Saraiya d/o Iddi. He pleaded guilty and was accordingly convicted, and sentenced to thirty (30) years imprisonment. Aggrieved by the sentence, the appellant has preferred this appeal fronting among others a complaint that, the imposed sentence of 30 years imprisonment is excessive and the mitigating circumstances were not considered by the learned High Court. Besides, he abandoned other grounds of appeal which was correctly so because it is settled law that where an accused has been convicted on own plea of guilty, he can only appeal against the sentence. See: LAURENCE MPINGA VS REPUBLIC [1983] TLR 166. The appellant was represented by Mr. Muswadiku Chamani, learned counsel who faulted the learned High Court Judge to have imposed excessive sentence without considering the mitigating factors availed by the appellant. Instead, he pointed out that the learned High Court Judge considered solely the aggravating factors presented by the prosecution. He thus argued that, being a first offender who readily pleaded guilty to the charge and has a dependent

family, circumstances demanded that he be given lenient sentence which was not the case. In this regard, he implored on the Court to consider the mitigating factors and reduce the sentence meted on the appellant. To bolster his propositions he cited to us the cases of BERNADETHA PAUL VS REPUBLIC [1992] T.L.R 97 and the unreported case of DOTTO PHILLIPO AND 5 OTHERS VS THE REPUBLIC, Criminal Appeal No. 537 of 2019. In the said two decisions the Court reduced the sentence meted on the appellants after considering that, the mitigating factors warranting lenient sentence were not considered by the High Court during the sentencing. On the other hand, for the respondent Republic Ms. Ajuaye Bilishanga, learned Principal State Attorney co-appeared with Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney, appeared for the respondent Republic. It is Ms. Maswi who addressed us on the appeal. Besides conceding to the appeal she was of the view that, the sentence of thirty (30) years meted on the appellant is not excessive because the offence of manslaughter attracts a maximum sentence of life imprisonment. Moreover, she contended that the aggravating factors surrounding the occurrence such as, the appellant indulging in abortion which is a criminal offence resulting into termination of life of the deceased, necessitated a severe punishment and not

otherwise. She thus urged us not to reduce the sentence meted on the appellant. On account of the two varying contentions on the sentence meted on the appellant, the issue for our determination is whether the 3 sentence imposed is excessive and if the High Court Judge did consider the mitigating factors before imposing the sentence. As a general rule, the Court will not readily interfere with the discretion of the trial court exercised when passing sentence unless it is evident that it has acted on a wrong principle, or overlooked some material factors. See: JAMES S/O YORAM VS REPUBLIC (1950) 18 EACA 147, KATIN DA SIMBILA @ NG'WANINANA VS REPUBLIC, Criminal Appeal No. 15 of 2008, WILLY WALOSHA VS REPUBLIC, Criminal Appeal No. 7 of 2002 (all unreported). What is implied here is that the appellate court will not interfere with a sentence assessed by a trial court merely because it appears to be severe. It will only interfere if it is plainly excessive in the circumstances of the case. In the present case, the mitigating factors presented on behalf of the appellant included: One, that the accused has no criminal records; two, the accused confessed and readily pleaded guilty to the charge thus saving time and resources of the court; three, the accused has stayed behind bars since 2020; and four, the accused had three children and an old mother who were all dependent on him. It is

discernible at page 35 of the record of appeal that in imposing the sentence the learned High Court Judge said thus: 7 have considered several factors advanced by the learned State Attorney; the defence counsel and the accused in im posing the sentence. Based on these factors, I hereby sentence the accused to serve a prison term o f thirty (30) years." In the case of w i l l y w a lo s h a v s r e p u b lic , (supra), the court was faced with a situation whereby the appellant being a first offender who had readily pleaded guilty to the charge of manslaughter was given a sentence of twenty (20) years imprisonment. This was considered excessive and the sentence reduced to four years after the Court had observed as follows: "It appears to us that, with respect, although ostensibly a judge may say he has taken into consideration m itigating circum stances in assessing sentence, it is not always apparent that he has in fact done so. For example, first offenders who plead g uilty to the charge are usually sentenced leniently unless there are aggravating circum stances we expect judges w ill in future demonstrate more clearly, when assessing sentence, that they have properly taken into account both m itigating and aggravating circum stances o f each individual case." Therefore, although the above excerpt shows that the mitigating factors were considered, that is not compatible with

the sentence meted on the appellant. It is settled law that, an accused pleading guilty to an offence which he is charged is entitled to the mercy and deserves lenient sentence. This was underscored in the case of BERNADETHA PAUL VS REPUBLIC ( supra) which was cited to us by the appellant's counsel. In that case, the Court reduced the excessive sentence having cited with approval a Malawian decision in the case of case of FRANCIS CHILEMA VS REPUBLIC [1968] H.C.D 510 where the accused pleaded guilty having said thus: "It is generally, if not universally, recognised that an accused pleading guilty to an offence which he is charged qualifies him for the exercise o f m ercy from the court. The reason is,...that one o f the main objects o f punishm ent is the reform ation o f the offender. Contrition is the first step towards reform ation, and a confession o f a crime, as opposed to brazening it out, is an indication o f contrition. Therefore, in such a case a court can, and does impose, m ilder sentence that it would have otherwise have done. " From the cited decisions, the settled position of the law frowns on imposing excessive sentence to remorseful first offenders who have readily pleaded guilty to the charges. Thus, having considered the appellant being repentant on what he did on account of having pleaded guilty and being a first offender who had remained behind bars for

more than two years, with respect, it was incumbent on the learned High Court Judge to consider material factors which normally entitle an offender to leniency. Had the learned High Court Judge considered the mitigating factors, he would have found that, the appellant was entitled to much more lenient punishment than the imposed sentence of thirty years. Since it is evident that, the learned High Court Judge acted on a wrong principle having overlooked material factors to wit the mitigating circumstances, this in our considered view warrants the interference by the Court to do what the trial court ought to have done. In the upshot, we agree with Mr. Chamani that, the appellant indeed deserved the mercy of the court and lenient sentence. Consequently, since the appellant has stayed behind bars for about five years, we think the term served is sufficient to warrant his reformation. We find the appeal merited and hereby quash the sentence of thirty (30) years and in substitution thereof, the appellant is sentenced to the term that would result to his immediate release from custody. We thus order his immediate release unless he is otherwise held for some other lawful cause. DATED at BUKOBA this 13th day of March, 2025. S. E. A. MUGASHA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL P. 1 NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2025 in presence Mr. Dickson Elias Makoro, learned State Attorney for the Respondent/Republic and also holding brief for Mr. Al - Muswadiku K. Chamani, learned counsel for the Appellant, is hereby certified as a true copy of the original.