2017817 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA f CORAM: LUANDA, J.A., MWARIJA. J.A. AND MKUYE. J.A.^ CRIMINAL APPEAL NO. 33 OF 2016 HAJAYANDI FANUEL @ KWIZIGABA.................................. APPELLANT VERSUS THE REPUBLIC...... ....................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mallaba, J.) Dated 9th day of February, 2015 In Criminal Session case No. 147 of 2014 JUDGMENT OF THE COURT 14th & 18th August, 2017 MWARIJA, J.A:. This is an appeal against sentence. The appellant, Hajayandi Fanuel @ Kwizigaba was charged in the High Court of Tanzania at Tabora with the offence of manslaughter contrary to section 195 of the Penal Code [Cap. 16 R.E. 2002]. It was alleged that on 11/4/2012 in the night at Kinindo Village, Ulyankulu Ward in Kaliua District, Tabora Region, he did unlawful kill one Batimoni Stephano. Upon his ^9 own plea of guilt, the appellant was convicted and senten Li CiS i l imprisonment term of seven (7) years. He was aggrieved by the sentence hence this appeal. In the memorandum of appeal filed by his counsel, the appellant raised two grounds "1. That the learned trial judge erred in law and in fact to impose excessive ja il sentence o f 7 years ja il imprisonment to the Appellant without taking into account his ^mitigation factors and/or without assigning any reason(s) 2. That, while Exhibit PI the Post mortem Examination Report o f the deceased does not disclose the cause o f death o f the deceased then the learned judge erred in law and fact to impose excessive sentence o f seven (7) year ja il imprisonment to the Appellant." On 14/8/2017 when the appeal was called on for hearing, the appellant was represented by Mr. Musa Kassim, learned counsel while the respondent/Republic.was-ra^esanted by Mr. Iddi MgenL learned State Attorney. In his submission, the learned counsel for the appellant dropped the 2nd ground of appeal and argued only the 1st ground. The gravamen of the learned counsel is submission on that ground is that the learned trial judge failed to consider some of the factors advanced by the appellant in his mitigation. According to Mr. Kassim, although the appellant had advanced a total of six (6) factors, the learned judge took into consideration only three of them; that the appellant readily pleaded guilty to the offence, that he has a family which depended on him and that he had, at the time of his conviction, been in remand prison for four (4) years. The other three grounds which, according to the learned counsel, were not considered in assessment of the appellant's sentence are; the circumstances under which the offence was committed, that he was aged 34 years and that he was a first offender. Had the learned judge considered all the six factors, Mr. Kassim argued, the appellant would have been sentenced to a lesser sentence than that which was awarded by the trial court. 3 The learned counsel argued further that apart from failing to consider the three important mitigatory factors, the learned judge did not give reasons for imposing the sentence of 7 years imprisonment on the appellant. He cited the case of Ikindila Wigae v. Republic, Criminal Appeal No. 60 of 2000 - now reported as [2005] TLR 365 to buttress his argument that the learned trial judge ought to have given reasons for the awarded sentence. But that case is distinguishable from this present case. In that case no reasons were given when bail was cancelled. It further rdated to" making of a ‘decision nor assessment of sentence. In response Mr. Mgeni opposed the appeal. He argued that accordingly to the record, the leaned trial judge considered the factors adduced by the prosecution in support of the prayer for severe sentence and the mitigating factors relied upon by the appellant in pleading for leniency. He went on to argue that since the maximum penalty for the offence is life imprisonment, the award by the trial court of 7 years imprisonment shows that the entire mitigatory factors were considered. We have given due to consideration to the rival arguments of the learned counsel for the parties. We wish to start by re-stating the position of the law as regards the powers of an appellate court over a sentence awarded by a trial court. In the case of Swalehe Ndugajihungu v. Republic [2005] TLR 94 cited by the learned State Attorney, the Court cited with approval the conditions stated by Brian Slattery in his book Handbook on sentencing at page 14. The appellate court may interfere with sentence. (i) Where the sentence is manifestly excessive ... or where the sentence is as excessive as to shock. (ii) Where the sentence is manifestly inadequate. (Hi) Where the sentence is based upon wrong principle o f sentencing (iv) Where the sentence has been based on irrelevant consideration such as the race or religion o f the offender (v) Where the sentence is plainly illegal as when, for examplef corporal punishment is imposed for the . offence o f receiving stolen property. In the case at hand, the appellant's contention is that the sentence is manifestly excessive. The reason, according to Mr. Kassim is that the trial court did not consider some of the mitigating factors advanced by the appellant before the trial court. We do not with respect, agree with the learned counsel. In sentencing the appellant, the learned judge stated as follows; "I have considered what the State Attorney stated and what the defence counsel also stated to enable me give an appropriate sentence to the accused person. [Emphasis added]. The argument by Mr. Kassim is that apart from that statement the learned judge mentioned only three factors out of six raised by the dppelicnit's counsel. We think, with respect that since the learned judge had stated that he had taken into consideration all the mitigating factors, the fact that he did not, in the course mention some of them necessarily, amount to award of excessive sentence. 6 The issue whether or not the trial judge considered the mitigating factors cannot, in our view, be determined on the only ground that some of the factors were not mentioned but from the extent of the sentence. In the case of Masumbuko Herman v. The Republic, Criminal No. 2002 (unreported) the Court as follows: '!'Although the learned judge stated in dear terms that all the circumstances had been considered, we do not think that was in fact done. From the sentence imposed, it seems highly doubtful to us that the circumstances advanced as grounds for imposing a less severe sentence were considered." [Emphasis added]. In this case, the maximum sentence for the offence is life imprisonment. Considering the circumstances under which the offence was committed as stated by the learned trial judge, the sentence of 7 years imprisonment is in our view not excessive. We 7 are satisfied that the term of imprisonment was arrived at after the trial judge had considered all of the appellant's mitigatory factors. In the event, we find that the appeal is devoid of merit and hereby dismiss it. DATED at TABORA this 17th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. P. <YA SENIOR DEPUTY REGISTRAR COURT OF APPEAL. 8