NA TZHC Mwanza

IN THE HIGH COURT Of TANZANIA

IN THE DISTRICT REGISTRY Al" MWANZA i>. ;{~ HIGH COURT TRAFFfC APPEAL NO. 198 Of 2017 {Arising from the conviction;J[dgment of the District Court ofMusoma at Musoma dated on 25/1/201 ~ before Hon. R.B. MAGANGA {SDM) in Traffic Case No. $/2017)

BETWEEN HAMISI S/0 LUBIGISA@ TABIKA .............................. APPELLANT

VERSUS THE REPUBLIC .....•.............•..•.. 1 ■■■ 1111 ■ 11••····················· RESPONDENT -JUDGMENT BUKUKU, J.: In the District Court of Musoma at Musoma, the appellant herein, Hamisi s/o Lubigisa @ Tabika was arraigned to answer two charges of causing death through careless driving contrary to section 41 and 63 (2) (b) of the Road Traffic Act, Cap 168 R.E. 2002, and the second count of Driving a motor cycle without holding a valid driving licence contrary to section 52 (a) and 63(2)(e) of the Road Traffic Act (supra). The particulars of the first charge read as follows:- ' i\ GfJ ~/ /\;1~-Z__ "Hamisi s/o Lubigisa @ Tabika on 31st day of December, 2014 at Mkirira village within Butiama District in Mara Region/ being a driver of a motor cycle with Registration No. T.691 CNH make Toyo/ drove the said motor cycle carelessly as a result he knocked and caused death of one pedestrian Kabeya Kabeya /~ The second count reads:- "Hamisi s/o Lubigisa @· Tabika on 31 st day of December, 2014 at Mk(rira village within Butiama District in Mara Region being the driver ofa motor cycle with Registration No. T.691 CNH make Toyo/ drove the said motor cycle on the public road without holding a valid driving licence/~ On 25/01/2017, when the charge was read over and explained to the appellant, he pleaded as follows:- "1st Count:- It is true that I knocked him. 2 ( Z,d Count."- It is true I

had no va!td driving • licence. Court: Entered a plea·of guilty to the charge in all counts against the accused'~ Since the accused had pleaded guilty to both charges, the Public Prosecutor outlined the facts and thereafter, the court found him guilty on all counts on his own plea of guilty and hence he was convicted. Having heard the facts read over to him, and the exhibits tendered and admitted, the appellant replied:- ''Accused in reply:- Your honou0 I have no any objection at all for their production in this case as the exhibits'~ When the appellant was further asked by the trial court as to whether the facts narrated by the prosecutor are true and correct, he replied as foUows:- 3 & . . 00 fu .f--i A~-- ''Accused in reply:- Your honour; I have heard all the facts narrated by the prosecutor they are • all true/ correct and I admit them air~ The record shows that, thereafter, the prosecutor, the appellant and the trial magistrate. signed the proceedings, and upon the strength of his own plea of guilty, the trial magistrate accordingly convicted him. Previous conviction was explained by the _prosecutor, who requested t~e court to award the appellant a severe sentence, which would serve as a deterrent to other people. In mitigation, the appellant admitted jumping bail alleging that he feared the wrath of the deceased relatives and so he -ran away to spare his life until he was

apprehended on 15/01/2017 while at Musoma, and sent to Musoma Police Station. All considered, the appellant was sentenced to serve a jail term of five years (5) on the first count, and three years jail term on the second count, which sentences were to run consecutively. The appellant was also ordered to compensate the deceased relatives the sum of T.shs. 2,000,000/== soon upon his completion of his jail term. 1~ Dissatisfied with the said decision, the appellant has preferred this appeal in this court. When the appeal was called on for hearing, the appellant fended for himself, whereas, Mr. Juma Sarige, learned Senior State Attorney represented the respondent Republic In his Petition of Appeal, the appellant fronted five grounds of appeal as fol lows:- 1. That the appellant was not informed/given of his full basic rights at every stage of the case. · 2. That the appellant was not aware when the charge was read to him.

3. That after perusing in carefully (sic) a copy of proceedings it is true that there is no proper record concerning the appellant's plea of guilty in each count.

4. That, the Honourable trial Magistrate erred in point of law and facts by convicting and sentencing the appellant basing on plea of guilty which was equivocal.

5. That the founding consecutively sentence contesting the appellant was full miscarriage of justice (sic). . ' ' ~~2~ ~7 rl/d-t____ The appeal was argued orally. The appellant did not have much to say other than praying to adopt his grqunds of appeal. On his part, the learned Senior State Attorney partly resisted the appeal. He started his submission by ~ombining the first, third and fourth ground of complaint whic;:h mainly are based on the issue of plea. According to Mr. Sarige, there is no doubt that the plea made by the appellant at the trial court was an unequivocal plea of guilty. He further averred that, once an accused person pleads guilty, there are procedures to be followed, citing the case of Clement Pancrase V.R; Criminal Appeal No. 321 of 2013 (CAT - Mwanza) (unreported). Mr. Sarige further averred that, the appellant admitted the charges without any doubt. Facts were read over to him and when the appellant was required to plead, he clearly admitted. What followed was conviction by the court, then the prosecutor outlined the appellants previous conviction record, which was followed by mitigation by the appellant and finally he was sentenced. For the afore reasons, Mr. Sarige urged me to find the first, third and fourth grounds of appeal devoid of merit. Submitting on the second ground of appeal, Mr. Sarige argued that, the appellant knew what was happening

according to the record and that ( was why he replied to the charges. For that matter he therefore finds that this ground too is baseless. Finally, on the fifth ground of appeal, Mr. Sarige admitted that, the sentence meted against the appellant was against the law, contrary to section 170(1)A of the Criminal Procedure Act. According to Mr. Sarige, a subordinate court cannot sentence an accused person more than five years unless there is confirmation by the High Court. With regard to the first count, the sentence is under section 113(4) of the Road Traffic Act (supra), which is not more than 2,000/= fine or imprisonment of not more than six years or both. As for the second count, the sentence is fine of not less than 15,000/= and not more than 50,000/= or imprisonment of not less than two years and not more than five years according to section 63(2) of the Act. There is no option for fine. It is for these reasons Mr. Sarige finds that the trial court misdirected itself on the sentencing hence he prays to this court to rectify the anomaly. In his brief rejoinder submission, the appellant agreed with the submission by the learned State Attorney. Much as the appellant has conceded to the Learned State Attorney's submission, I think I will briefly address the issye of equivocal plea raised by the appellant. My starting point is section 360(1) of the Cri_minal Procedure Act which

states:- ''No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate ·court except as to the extent or legality of the sentence'~ The above provision of the law bars appeals from conviction based on pleas of guilty·. It gives such position as a general rule. However, according to case law, there are certain circumstances where an appeal may be entertained notwithstanding a plea of guilty. (See: Laurent Mpinga V. Republic [1983] TLR 166, Ramadhani Haima V. Republic; Criminal Appeal No. 213 of 2009 and Juma Mohamed V. Republic; Criminal Appeal No. 272 of 2011 (both unreported CAT). In the case of Lawrance Mpinga (supra), the Court held that, an appeal against a conviction based on an unequivocal plea of guilt generally ( cannot be sustained, although an appeal against sentence may stand and it set out the circumstances under which an accused person may _challenge the conviction to include:- "1. that, even taking into consideration the admitted fact~ his plea was imperfect, ambiguous . or unfinished anc;l for that reason/ the lower court erred in law in treating if as a plea ofguilty; 2. that, he pleaded guilty as a result of mistake or misapprehension; 3. that, the ~harge laid at his door disclosed no offence known to law/ and 4. that, upon the admitted facts he could not in law have been convicted of

the offence charged'~ Considering the circumstances of this case, I am settled in my mind that, the appellant's plea was unequivocal, and that is why, having heard the submission by the learned State Attorney, he decided to agree with his submission. I say so because, the appellant was convicted upon his own plea 'I of guilty. The charges were read over and explained to him and he readily admitted, and the court entered as a plea of guilty to the charge. According to the proce_dure, the facts were then outlined by the prosecutor and when asked to say whether or not the given outline facts were correct or not, the appellant readily replied:- "Your honou0 I have heard all the facts narrated by the prosecutor they are true/ correct and I admit them air~ . Upon the strength of his plea and this reply, the court entered conviction and then it proceeded to sentence him, after the prosecutor had outlined the previous convictions and the appellant submitting his mitigation factors. The above narration clearly demonstrates that, all along, the appellant knew what was happening, and I am satisfied that the procedures were fully observed. In that regard I fully agree with the submission of the learned State Attorney for the respondent Republic that, the 1st, 2nd 3rd , and 4th grounds of appeal have no merit. They are dismissed. Finally, I now come to the fifth ground of appeal which

relate to the sentence meted against the appellant. It is a fact not disputed that, the appellant was sentenced to_ serve a jail term_ of five years on the first count and three years on the second count, which makes a total of eight years for both counts, and which were to run consecutively. On top of that, the appellant was order~dto compensate the deceased relatives a sum of T.shs. 2,000,000/=. I am mindful of the fact that, this is an appeal and therefore, I see no reason to depart from the old time established principle of criminal justice in matters of sentence on appeal. I am aware that it is a trite principle that, before a Court cif Appeal can interfere with the trial court's sentence, the appeal court must be satisfied that either the sentence imposed was manifestly excessive or that the trial court ignored an important matter or circumstance which ought to have been considered while passing the sentence or that the sentence imposed was wrong in principle. In this appeal, I am with respect in agreement with the contention of the learned Senior State Attorney that, there is a reason for interfering with the sentence meted against the appellant. On the first count, the appellant 11 1fek----·• ( was charged with the offence of causing death through careless driving c/s 41 and 63(2)(b) of the Road Traffic Act (supra). He was sentenced_ to serve a _jaii term of five years.

On the second count, the appellant was charged with the offence of driving a motorcycle without holding a valid driving licence s/s 52(a) and 63(2)(e) of the Act, and was sentenced to serve a jail term of three years. Since the sen_tence are to run consecutively, the appellant is to serve a total of eight years, which is against the provision of section 170(1)(a) of the Criminal Procedure Act which provides:- · '11 subordinate court ma½ in the cases in which such sentences are authorized by la~ pass any of the following sen~ence - (a) Imprisonment for a term not exceeding five years/ ....... I"~ I am mindful of the fact that, each count must receive a requisite sentence. The magistrate may then decide to order the sentence to either run concurrently or consecutively, depending on the nature of the charges and the evidence unfurled at the trial. The general principle ·is that, offences committed in close association with each other should not normally attract consecutive sentence where the offences concerned are broadly similar in J.2 '- '· · .•, character or related in terms of subject matter. Where two wholly different offences are committed at the same time, even against the same victim, consecutive sent~nc·es may properly be imposed. The general rule, and the . pattern in most cases is for the court to impose sentence on each count and then order that the sentence should run

concurrently. In this particular case, the two offences committed by the appellant were related in terms of the subject matter. They both fall under the Road Traffic Act, Cap 168 R.E. 2002, and that is why the penalties for these two offences fall under section 63(2) of the Act. For that matter, it was incumbent upon the trial magistrate to order the sentences to run concurrently and not consecutively. In sentencing the appellant, the learned trial magistrate had this to say at page 5 of his typed judgment:- ''A// considere~ it is apparent thal accus~d in this case ran away soon after the accident and ran away from Justice/ and today, · he is before the. Court of Justice an act which made the court to award him the severe sentence as submitted by the prosecution I'~ With greatest respect to the learned trial magistrate, much as the appellant ran away from the scene of crime and thereafter jumped bail, still, there was room for the learned magistrate to c9nsider other mitigating factors when sentencing the appellant. It is not disputed that, the appellant is a first offender, and in his mitigation, he told the court why he had to run away after the incident. The offences for both counts have penalties, but all along, the trial magistrate decided to impose a maximum sentence for both counts. In determining or occasioning sentence, the court is perfectly entitled to take into

account the necessity in detaining other persons from perpetrating similar offences, but that factor is not the sole or predominant basis for assessment of sentence. Generally speaking, imprisonment is only justified if it is necessary that the criminal be removed from society save where the nature of the offence and the circumstances of its commission call for a custodial sentence, or where the court has no discretion in the matter because the offence attracts a mandatory sentence of imprisonment under