20031031 TZCA Mbeya

1 Y-~~A IN THE COURT OF APPEAL OF TANZANAIA AT MBEYA (CORAM: LUBUVA, IA., MUNUO, J.A. And NSEKELA, J.A.) CRIMINAL APPEAL NO.40 OF 2002 JUMA BURUHANI MAPUNDA ADORATHI DAMIANI MBUNDA ...................................APPELLANTS VERSUS THE REPUBLIC .............................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Manento, 1) dated the 3rd day of April, 2002 in Criminal Sessions Case No. 35 of 2001 JUDGMENT OF THE COURT LUBUVA, J.A.: This isan appeal against sentence only. In Criminal Sessions Case No. 35 of 2001, the High Court, (Manento, J. as he then was) sitting at Songea convicted the appellants on their own plea of guilty to manslaughter contrary to section 195 of the Penal Code. They were sentenced to a term of imprisonment for twenty one (21) years. Aggrieved with the sentence, this appeal has been preferred. Mr. Waryuba, learned counsel for the appellants filed the following two grounds:- 2 That the trial Court erred in law and fact to excessively sentence the Appellants whereas they had heavily mitigated. That the trial Court erred in law and fact by holding that the circumstances of this Case called for a deterrent sentence whereas such circumstances did not exist at all. It was his submission that the circumstances of the case were such that the sentence imposed was excessive. Relying on the decision of this Court in Yohana Balicheko v Republic (1994) TLR.5, he said it is settled principle of law that as a general rule, this Court does not interfere with sentence imposed by the courts below unless the sentence is manifestly excessive or that the sentencing court failed to take into account a material circumstance or erred in principle. He also cited the case of Bernadeta Paul v Republic (1992) TLR.97. This was a case in which the appellant was convicted on her plea of guilty to the charge of infanticide contrary to section 199 of the Penal Code. She was sentenced to four years (4) imprisonment. In mitigation it was stated that the appellant was a first offender and had been in custody for five years. This Court 3 allowed the appeal, reduced the sentence to such term as to result in her immediate release. Mr. Waryuba submitted that if in an offence of infanticide which carries the same penalty as the offence of manslaughter, the court found the sentence of 4 'years imprisonment excessive, there was no reason for imposing a sentence of 21 years imprisonment in this case. He also submitted that the learned trial judge imposed excessive sentence against the appellant because matters which should not otherwise have been taken into account were considered. For instance, he said the trial judge took into account the fact that the deceased's money was stolen by the appellants before he was assaulted and that the deceased had dependants. These, Mr. Waryuba urged, were matters in respect of which there was no evidence received by the trial coUrt before passing sentence in terms of the provisions of section 320 of the Criminal Procedure Act, 1985. In his view, such matters are relevant in so far as the accused, the appellants in this case, are concerned and not the deceased. 4 For the respondent Republic, Mr. Boniface, learned State Attorney, did not resist the appeal. He said the learned trial judge wrongly took into account matters. which were not before the court. In considering the sentence, Mr. Boniface sai&the judge referred to such matters as the deceased's dependants, which, generally are factors which are considered in favour of the accused and not the deceased. He was in agreement with the submission by. Mr. Waryuba that in this case, there were no special circumstances calling for such heavy penalty. If anything at all, it was a result of foolish and drunken conduct on the part of the deceased and the appellants that led to the death of the deceased. Furthermore, the State Attorney took the view that in Yohana's case (supra) this Court took the view that as it was a bad case of manslaughter in which the appellant repeatedly assaulted the deceased using a weapon, ten years imprisonment was not excessive. In this case, which he said was not a bad case of manslaughter where no weapon was used, twenty one (21) years imprisonment was excessive. The only issue in this appeal is whether the sentence of twenty one years imprisonment was manifestly excessive. In resolving this issue it is instructive to examine closely what were the circumstances 5 which the learned trial judge took into account when passing the sentence. In passing the sentence, the learned trial judge stated inter alia: I The deceased had his money which the accused persons, first stole, then they jointly assaulted him. That was very bad act. The deceased had even lost his money even before he was beaten to death. Earlier on, the judge had also observed: I believe that the deceased had also dependants, if not wife and children, parents or other people in the African extended family. The deceased has lost his life for good. His relatives won't see him again. Section 320 of the Criminal Procedure Act, 1985 provides: The court may, before passing sentence, receive such evidence as it thinks fit, in order i ~ to inform itself as to the sentence proper to be passed. Our understanding of the provisions of thi9 section is that the court has the discretion to receive (underlining supplied) evidence as it thinks fit for a proper sentence to be imposed. In this case, as Mr. Waryuba correctly submitted, there was no evidence received by the -' court. That is, there was no evidence adduced before the court regarding the circumstances alluded to by the trial judge. Rather, it seems to us that it was the judge's own perception of the circumstances. On the other hand, even if it is granted that there were such evidence received in terms of the provisions of section 320 of the Criminal Procedure Act, 1985, we do not think that the matters involved were relevant in considering the sentence to be imposed against the appellants. These matters, are in our view, relevant in so far as the accused, the appellants in this case, are concerned and not the deceased, as happened in this case. In this light, we are in agreement with Mr. Waryuba, learned counsel and Mr. Boniface, IL 7 learned State Attorney, that in passing sentence, the learned trial judge considered matters which otherwise were irrelevant. In Yohana's case (supra) this Court considered whether an appellate court may interfere with sentence imposed by the trial court. The Court held among other things: As a general rule this Court will not readily interfere with a sentence imposed by the High Court unless satisfied that the sentence was manifestly excessive, or that the sentencing court failed to consider material circumstance or that it otherwise erred in principle. In the instant case, it is our view that, as urged by counsel for the appellants and the State Attorney, the learned trial judge was rather more influenced by factors which, as already observed, were not relevant as regards the appellants and that no evidence was adduced in terms of section 320 of the Criminal Procedure Act, 1985. 20 ground 4 in the memorandum of appeal was in any case unnecessary because the trial magistrate sentenced the appellant to be sent to one of what are known as Education Centres, as required by law. If we had upheld the conviction we would not criticize the trial magistrate for sentencing the appellant as he did. Whether those Education Centres are in truth not educational but are penal prisons as contended by Mr. Patel, cannot be blamed on the trial court. If it is in fact an issue as to what in reality those institutions are, then it should be directed to the appropriate authorities for remedial legal or administrative action. It should now be clear that the appeal must be allowed. The decisions of the two lower courts are quashed the conviction and sentence- of fifteen years in an Education Centre are set aside. The appellant is to be set free forthwith unless he is being held for some other lawful cause.