Judgment Kwendesha Mlagwa v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA CRIMINAL APPEAL NO. 38372 OF 2023 (From the judgement of the District Court of Bukombe Criminal Case No. 126/2023) KWENDESHA S/O MLAGWA…………………………………… APPELLANT VERSUS REPUBLIC ……………………..……………………………RESPONDENT JUDGEMENT 20th May & 20th June, 2024 ITEMBA, J. The appellant was arraigned before Bukombe District court with an offence of unlawful possession of Narcotic Drugs contrary to section 15A (1) (2) (c ) of the Drug Control and Enforcement Act, Cap 95 R.E 2019 as amended by section 19(b) of the Written Laws Miscellaneous Amendments) Act No. 5 of 2021. It was alleged that, the appellant and one Hawa d/o Abeid on 14th day of June 2023 during evening hours at Maendeleo area Buganzu Village within Bukombe District of Geita Region were found into possession of 21.55 kilograms of Cannabis Sativa commonly known as Bhangi. On 6/10/2023 the appellant was convicted on plea of guilty and was sentenced to serve 20 years imprisonment. Charges against Hawa d/o Abeid were withdrawn under section 98 (a) of the Criminal Procedure Act, Cap 20 R.E 2022. The appellant was aggrieved by the decision of the District Court he filed this appeal 1 challenging conviction and sentence. The appeal is pegged on five grounds of appeal that; 1. The trial Magistrate erred in law and facts to convict the appellant using plea of guilty without considering in detail what the appellant pleaded to; 2. The trial magistrate erred in law and fact by convicting the appellant by using the plea of guilt which had unfinished words and that the appellant was forced and beaten by police officers in order to say those words including the weight kilograms; 3. The trial magistrate erred in law and fact by using plea of guilty given by the appellant without calling witnesses to prove the offence; 4. The trial magistrate erred in law and fact to convict the appellant excessive sentence of 20 years without considering defence and his old age of 61 years; and 5. The trial court failed to understand when the appellant said”, “…ndani ya nyumba” these were unfinished words which cannot be the basis of conviction without proof of the charge by prosecution. The appellant further presented additional three grounds of appeal that; 1. The trial magistrate erred in law and fact to convict the appellant by relying and acting upon equivocal plea of guilty hence on 5/10/2023 soon after facts of Preliminary Hearing read over to the appellant he did not respond those facts; 2 2. The court was misused by the republic hence on 5/10/2023 the Public Prosecutor tendered a number of exhibits which were admitted. That those exhibits were tendered twice unreasonably; 3. The charge was predetermined for the appellant hence no clue shown if the second accused person was asked to plea. On the last day the facts were read out but the charge levelled against the appellant was not read out. During hearing of this appeal, the appellant was unrepresented, the respondent was represented by George Ngemere and Bitunu Msangi both learned State Attorneys. The appellant only submitted that, the narcotic drugs were not his and that no witness appeared to testify. In reply, it was submitted that, it was the appellant himself who asked to enter a plea of guilty as recorded at page 2 of the proceedings. That at page 9 after the facts were read the appellant admitted to them therefore, he understood the charge against him and entered plea of guilty. If the appellant was beaten, he should have told the court otherwise it is an afterthought. That, there was no need to call witness after the plea of guilty. Further, as section 15A (1) (2) (c) of Cap 85 R.E 2019 provides for the sentence of 30 years the court was lenient enough to award 20 years. With regards to additional grounds, it was submitted that, when an accused person enters plea of guilt, there in no requirement for exhibits to be produced because the appellant admitted to the facts and exhibits. 3 That the appellant was not prejudiced in any way by the 2nd accused person not to enter her plea. After considering the submissions of parties I will now consider the grounds of appeal. The 1st 2nd 3rd and 5th grounds of appeal and the 1st additional grounds of appeal interrelate therefore, they will be answered jointly. In these grounds, the appellant is faulting the trial court not to consider that his plea was equivocal and witnesses were needed to prove the offence he was facing. Reading the proceedings at page 2, the appellant is recorded to have said; “Mhe. Nimekuja kukiri kosa langu, baada ya kukana/kata tarehe 23.06.2023. leo Tarehe 05.10.2023 naomba mahakama hii inikumbushe kosa ili niweze kukiri kosa langu” Basically meaning that ‘I have come to enter a plea of guilty, I pray to be reminded of my charges’. Further after the charge was read over, the appellant was recorded to have said; ‘Ni kweli nilikutwa na madawa ya kulevya aina ya Bhangi yenye uzito wa kilogram 21.55 isivyo halali ikiwa ndani ya nyumba.’ Moreover, the Public Prosecutor read over the facts and tendered exhibits M.1 (21.55 kilograms of Cannabis Sativa); exhibit M.2 (Certificate of seizure); exhibit M.3 (Caution statement); exhibit M.4 (a letter sending sample to the government chemist); exhibit M.5 (Report of the 4 Government Chemist); exhibit M.6 (a letter from Weighing and Measurement Agency); and exhibit M.7 (document of chain of custody). The facts and exhibits were read to the appellant who replied; “maelezo yote ni sahihi na kweli tupu, pamoja vielelezo M. 1-7 vya Jamhuri” It is the law that appeal on plea of guilty can only be allowed if one, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty; two, that he pleaded guilty as a result of mistake or misapprehension; three, that the charge laid at his door disclosed no offence known to law; four, that upon the admitted facts he could not in law have been convicted of the offence charged; and five where an appellant was pressured into pleading guilty or the plea of guilt was procured as a result of threat or promise offered by a person with authority. See the cases of Rex v Forde (1923) 2KB 400; and Laurence Mpinga vs Republic [1983] TLR 166. See also the Court of Appeal cases of Khalid Athuman vs Republic, Criminal Appeal No. 103 of 2005; Josephat James vs. Republic, Criminal Appeal No. 316 of 2010; Njile Samwel @John vs Republic, Criminal Appeal No. 31 of 2018; Zengo Benjamin vs Republic, Criminal Appeal No. 562 of 2019 and Ally Sanyiwa vs Republic, Criminal Appeal No. 527 of 2017 (all unreported). 5 In this matter at hand, in my view, as correctly submitted for the respondent, the appellant was made aware of the charge laid against him, he knew what he admitted to, his plea was complete, the facts in the charge were sufficient to disclose the offence, there was no mistake or misapprehension and the plea was unequivocal. The claim that the appellant was forced and beaten by police officers is an afterthought as it was not disclosed before the trial court and at the time the appellant entered the plea he was out of control and authority of the police officers. Thus, the trial court was correct to convict the appellant and no further evidence was needed to prove the charge. The 1st 2nd 3rd and 5th grounds of appeal and the 1st additional grounds of appeal have no merit. The 2nd and 3rd additional ground of appeal need not detain me. The appellant was not prejudiced by a procedure adopted by the trial court on tendering of exhibits. He was also not prejudiced that the second accused was not asked to plea to the charge as the appellant notified the court at the outset that he is the one who want to plea. Section 388 of the Criminal Procedure Act (supra) provides; 388. Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other 6 proceedings under this Act; save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable. (emphasis added) Guided by this provision, I find that the 2nd and 3rd additional grounds of appeal lacks merit too. On the 4th ground of appeal the appellant is faulting the trial court for awarding 20 years’ imprisonment sentence considering the mitigating factors and the age of the appellant. It is the settled law that sentencing power is in the domain of the trial court. In the case of Mashinika Mashaka Mswanzali @ Shine vs. Republic, Criminal Appeal No. 416 of 2017 conditions warranting the appellate court to interfere with sentence was reiterated that; i. Where the sentence is manifestly excessive or is so excessive as to shock; ii. Where the sentence is manifestly inadequate; iii. Where the sentence is based upon a wrong principle of sentencing; iv. Where the trial court overlooked a material factor, and v. Where the trial court ignored the period, the appellant had been in custody pending trial. 7 In this matter at hand, the trial court considered the fact that the appellant stayed in remand for four months, that he is of 61 years, he is the first offender and that he pleaded guilty to the charge. In my view the sentence of 20 years for an accused who pleaded to the charge and aged 61 years was excessive and shocking. I find that, considering the circumstances encircling the appellant 2 years was enough to punish and deter him from committing another offence. By admitting to the charges, he had already owned his faults. I therefore substitute the sentence of 20 years to 2 years imprisonment including the time he was remanded in prison. Therefore, the appeal is partly allowed, the fourth ground of appeal has merit. The sentence of 20 years is reduced to 2 years imprisonment. It is so ordered. Right of Appeal fully explained to the parties. DATED at MWANZA this 20th Day of June, 2024. L. J. ITEMBA JUDGE 8 Judgement delivered in chamber in the presence of the appellant in person, Mr. George Ngemera State Attorney for respondent and Ms. Glady Mnjari, RMA. L.K. J. ITEMBA JUDGE 9