josephat james vs republic 2006 tzhc 226 6 january 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI DC CRIMINAL APPEAL NO. 102 OF 2004 C/F DC MOSHI CR. CASE NO. 773/2002 JOSEPHAT JAMES........................................ APELLANT VERSUS THE REPUBLIC..................................... RESPONDENT JUDGMENT HON. JUNDU. J. In the trial court, the Appellant was charged with unnatural offence c/s 154 (1) of the Penal Code Cap. 16 Vol. 1 of the laws read together with Sexual Offences Special Provisions Act No. 4/98. The particulars of the ofence were that the Appellant one Josephat s/o James charged on 1st day of September, 2002 at about 17.30 hours at Nganjeni Kirua Vunjo Village District Kilimanjaro Region did have carnal knowledge to one James s/o Jopsephat a boy of 2 years and 6 months against the order of nature. The Appellant is unrepresented while the Republic is represented by Mr. Juma, learned State Attorney. The record shows that after the above named charge was read to the Appellant at the trial court, he pleaded guilty as he admitted that the said charge was correct. Thereafter, the trial magistrate calledupon the Public Prosecutor to read the facts of the case to theAppellant, the latter admitted them to be true and correct and that it was true he had sodomised the above mentioned child. The record shows further that the trial magistrate found the Appellant guilty of the offence he was charged o f and convicted him of the same. He sentenced the Appellant to life imprisonment as provided for by the law having considered the age of the Appellant (then 20 years old) and the age of the victim (then 2 years and 6 months) which was below 10 years o f age. Having been aggrieved by the conviction and sentence passed by the trial magistrate on him, the Appellant has appealed to this court against them listing five grounds of appeal as follows:- (1) That the learned Principal District Magistrate erred in both law and fact for manifetling an excessive sentence to the Appellant without considering that the charge was not established beyond the criminal laws. (2) That the learned Principal District Magistrate gravely erred in both law and in fact for not considering that the Appellant was under the age of sixteen years and now the time is appealing he is under 18 years. (3) That the learned Principal District Magistrate failed to have given the appellant enough time or to have given the Appellant some more days instead of reading the charge and at the same time giving the judgment. The Appellant was supposed to be given another mention and his mind be examined by the doctor if he was physically mentally fit as the charge he was facing was serious. (4) That the lower court magistrate erred in law for not considering that the Appellant before him as a child of tender age did not know being guilty or innocent, he therefore erred in law when he ignored to send the Appellant to a doctor to be examined his age and also his brains if they were physically fit as he could have been frustrated. (5) That the trial magistrate also gravely erred in law and in fact for not considering that the offence which was facing the Appellant was a serious offence and carries a heavy punishment of life imprisonment and therefore omitted to comply with Section 310 of the C.P. Act No. 9/85. This Act provides that an accused has right to be defended. The Appellant has no money to hire an advocate and it was upon the honourable court to have done so to the Appellant. Based on the aforesaid grounds of appeal, the Appellant, in his Memorandum of Appeal prayed to this court to allow the appeal, quash conviction and sentence and set him free. As I have earlier stated, the Appellant is unrepresented. On the day of hearing of the appeal, that is 9/11/2005, he only stated that what he had stated in the grounds of appeal in the Memorandum of Appeal was sufficient for purposes o f arguing the appeal before this court. On the other hand, Mr. Juma, the learned State Attorney for the Republic opposed the appeal vigorously. He challenged all the five grounds of appeal set forth by the Appellant. He supported the conviction and sentence passed by the trial magistrate on the Appellant. As we have seen the Appellant in his first ground of appeal contends that the trial magistrate erred in imposing a manifestly excessive sentence, that is life imprisonment on the Appellant. The issue to be determined therefore is whether the alleged sentence imposed on the Appellant was manifestly excessive as contended by the Appellant. In his submission, Mr. Juma vehemently contends and rightly so in my considered view that the sentence o f life imprisonment that was imposed on the Appellant by the trial magistrate is the mandatory minimum sentence provided for under Section 154 (2) of the Penal Code, Cap. 16, Vol. 1 as amended by Section 16 of the Sexual Offences Special Provisions Act No. 4 of 1998.The said provision of law provides that if an accused person commits unnatural offence to a child under 10 years of age, he shall be sentenced to life imprisonment. In the case under appeal, the victim was 2 years and 6 months old, that is below 10 years of age hence I quite agree with the submission of Mr. Juma that the trial magistrate had properly complied with the law when he sentenced the Appellant to life imprisonment. I find and hold that the first ground of appeal has no merit. The Appellant, in his second ground of appeal contends that the trial magistrate erred in law and fact in not considering that at the material time the Appellant was 16 years old. Mr. Juma, the learned State Attorney strongly challenged the said ground of appeal. The issue is whether the Appellant was aged 16 years of age at the material time. My proper reading of the charge sheet that was read over and explained to the Appellant in the trial court shows that the age of the Appellant was 20 years as stated therein. As stated by Mr. Juma, the Appellant, when the same charge sheet was read over and explained to him did not dispute the age factor, that is he was 16 years of age and not 20 years age. Even when the facts of the case were read and explained to him by the Public Prosecutor, the Appellant did not dispute that he was not 20 years age but 16 years old. In fact, the record clearly shows that the Appellant had admitted the said facts as being correct including the fact that he was 20 years of age. In the light o f the said position, the contention of the Appellant that at the material time was he 16 years of age and not 20 years of age is an after thought as submitted by Mr. Juma, I am satisfied that as far as the record of the case is concerned the Appellant was 20 years of age at the material time as indicated in the charge sheet and as stated in the facts of the case read and explained to him during the trial and admitted by himself as being correct. I find and hold that the second ground of appeal has no merit. The Appellant, in his third ground of the appeal, the Appellant contends that the trial magistrate erred in law and fact in reading the charge to him whereby he pleaded guilty to it without first making an investigation as to his mental state or fitness. The issue is whether the trial magistrate erred in not investigating the mental state or fitness of the Appellant at the trial. Mr. Juma, the learned State Attorney vehemently challenged the assertion by the Appellant in this ground of appeal. He contends and rightly so in my considered view that the trial magistrate had fully complied with Section 228 of the Criminal Procedure Act, 1985 as to what happens if an accused person pleads guilty to a charge. The said Section 228 o f the Criminal Procedure Act, 1985 states as follows:- “228 (1) The substance of the charge shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge. (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary.” This provision o f the law does not require the trial magistrate to investigate the mental state or fitness of an accused person. All in all, as rightly submitted by Mr. Juma, the record of the lower court shows that the Appellant did respond or answer to what was read to him in the trial court including the charge sheet and the fact of the case which he admitted them as being correct. In my view, this clearly shows that the Appellant was fit mentally and in any event this court in this appellate jurisdiction is bound to consider the lower court record as it is hence it cannot pursue the issue of mental state of the Appellant which was not raised in the proceedings in the trial court by the Appellant himself. I find and hold that the third ground of appeal has no merit. The Appellant, in the fourth ground of appeal, contends that the trial magistrate erred in law and fact in not considering that the Appellant was a child of tender age hence not in a position to know his guilty or innocence and that he should have let a doctor to examine his age and brains. Again, Mr. Juma has vehemently challenged this ground of appeal. The issue is whether the Appellant was a child of tender age at the material time and whether medical examination as regards his age and brains was necessary. I quite agree with the submission o f Mr. Juma that the charge sheet in the trial court had clearly indicated that the Appellant was 20 years of age hence not a child of tender age. Further, the facts which were read over to the Appellant in the trial court and admitted by him as being correct stated that he was 20 years of age and not a child of tender age. The Appellant did not object or deny the said position in the lower court or call upon the trial court to medically examine his age and brains hence there was no basis for the trial magistrate to embark on the said investigation or medical examination. As I have earlier stated the Appellant had pleaded guilty to the charge when the same was read over and explained to him in the trial court as well as admitting the facts as being correct when the same were read over and explained to him. This indicates that he had no mental problems as far as the proceedings in the trial court were concerned. I quite agree with Mr. Juma that the fourth ground o f appeal has no merit. It is an afterthought. I so find and hold. The Appellant, in his fifth ground of appeal contends that the offence with which he was charged with was a serious one and carries a heavy sentence but the trial magistrate did not comply with Section 310 of the Criminal Procedure Act, 1985 in that he was not given an opportunity to be represented at the trial in the lower court. Mr. Juma, the learned State Attorney has vehemently opposed the said ground of appeal. In his submission he contends and rightly so in my considered view that though the offence with which the Appellant was charged with carries a sentence of life imprisonment, the provision of law cited by the Appellant, that is Section 310 of the Criminal Procedure Act, 1985 does not confer an automatic right to an accused person to be represented by a counsel in the trial court. The said provision of law does not state that it is mandatory for an accused person to be represented by an advocate before the trial court hence I quite agree with Mr. Juma that it was up to the Appellant in the trial court to have requested the trial magistrate to be availed with an advocate to represent him during the trial. As it stands, the record shows that the Appellant did not make or submit any request to the trial magistrate to be availed with an advocate to represent him in the trial court. Mr. Juma, in his submission contended and rightly so in my considered view that Section 310 of the Criminal Procedure Act 1985 which provides for right to be represented makes the latter subject to any rules of court made by this court under powers conferred by Article 26 of Tanganyika Order in Council, 1920 from time in force and that since there are no such rules made by this court to date, if follows that the right to be represented stated under Section 310 of the Criminal Procedure Act, 1985 is not a vested right to the Appellant. Mr. Juma, in his submission contended and I quite agree that the trial magistrate had complied with Section 228 of the Criminal Procedure Act, 1985 which states what is to be done in the event an accused person pleads guilty to a charge or an offence having been read to him. Section 228 (1) of the Criminal Procedure Act, 1985 states as follows:- “228 - (1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge” And Section 228 (2) of the same Act reads as follows:- “228 - (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary.” The record of the trial court shows that when the charge was read to the Appellant, he admitted the truth of the charge. He replied that it was correct. In my considered view, the Appellant plea was unequivocal and conviction was properly entered by the trial magistrate. Having pleaded guilty and having been convicted on the said plea, the Appellant, in terms of Section 360 (1) of the Criminal Procedure Act, 1985 is barred from appealing except as to the extent or legality of the sentence. For avoidance of doubt, Section 360 (1) o f the Criminal Procedure Act, 1985 states as follows:- “ 360 - (1) 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” I have already earlier on stated and demonstrated that the sentence of life imprisonment imposed on the Appellant by the trial magistrate is the mandatory minimum sentence provided for under Section 154 (2) of the Penal Code, Cap. 16 Vol. 1 as amended by Section 16 of the Sexual Offences Special Provision Act. No. 4 of 1998 on being convicted for an unnatural offence to child under 10 years of age. The victim in this case was a boy of 2 years and 6 months old according to the charge sheet and facts read to the Appellant in the trial court, all of which he admitted to be correct when read to him. So the extent or legality of the sentence inflicted upon the Appellant by the trial court was in order. Having exhaustively dealt with and determined the grounds of appeal filed by the Appellant, I find and hold that this appeal has no merit. I hereby accordingly dismiss it. I uphold the conviction and sentence imposed on the Appellant by the trial magistrate. It is so ordered. F.A.R. JUNDU, JUDGE 6/1/2006 Right of Appeal Explained. F.A.R. JUNDU JUDGE 6/1/2006 6/1/2006 Coram:- F.A.R. Jundu, J. For the Appellant - present For the Respondent - Miss Mlay, State Attorney. C./C:- Matiku. Court:- Judgment delivered in the presence of the Appellant and in the presence of Miss Mlay, learned State Attorney for the Republic/Respondent. 0^ 7' - > '^ F .A .R . JUNDU, JUDGE, 6/1/2006 AT MOSHI.