CRIMINAL APPEAL NO 303 OF 2020 MACHABA MAKORO V 240612 093311

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MWARIJA, 3.A.. MWAMPASHI. J.A.. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 303 OF 2020 MACHABA MAKORO KOMASIGA...............................................................APPELLANT VERSUS THE REPUBLIC.....................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) fGaleba. 3.) dated the 26th day of June, 2020 in Criminal Appeal No. 09 of 2020 JUDGMENT OF THE COURT 4h & 11thJune, 2024 MWAMPASHI. J.A.: On his own plea of guilty, the appellant herein, MACHABA MAKORO @ KOMASIGA, was convicted by the District Court of Serengeti at Mugumu (the trial court), in Criminal Case No. 173 of 2019, of the offence of raping a 10 years old girl contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap. 16 R.E. 2002; now R.E. 2022] (the Penal Code). Having so convicted, he was sentenced to serve a life imprisonment. His first appeal to the High Court was dismissed in its entirety hence, the instant second appeal. According to the particulars of the charge and the brief facts given by the prosecution subsequent to the recording of the plea of guilty, the facts which were, as well, admitted by the appellant to be true and correct, on 20.11.2019 at about 08:00 hours at Park Nyigoti Village within the District of Serengeti in Mara Region, the appellant met with "NM" a 10 years old girl (the victim), pulled her in a house belonging to the victim's mother and raped her. Sometimes later, after the appellant had fled, the victim informed her mother that the appellant had raped her. Thereafter, the case was reported to the police and the victim was sent to the hospital for medical examination. After being arrested and interrogated, the appellant admitted to have raped the victim. He again confessed to have raped the victim before the Justice of the Peace. An extrajudicial statement recorded to that effect by the Justice of the Peace was, without any objection, tendered as Exhibit PEI, the contents of which were admitted by the appellant to be true and correct. As alluded to above, after the charge was read out to him, the appellant pleaded guilty and when asked by the trial court if the brief facts given by the prosecution were true, he willingly and freely, in no uncertain terms, stated that the facts were true and correct. On the strength of the unequivocal plea of guilty entered by the appellant, the trial court convicted him as charged and sentenced him to life imprisonment. The first appeal to the High Court having been unsuccessful, the appellant has preferred the instant second appeal raising six (6) grounds of complaint which can be paraphrased as follows; One, that there was no expert evidence from a doctor to prove that NM was ravished; two, that the appellant was forced to enter the plea of guilty by the police; three, that before entering the plea of guilty, the charge was not read out to the appellant three times for the ascertainment of the plea of guilty; four, that the case was one sided in favour of the prosecution and the burden of proof was not cast on the prosecution; five, that witnesses were not called in support of the prosecution case and six, that in concluding that the appellant has unequivocally pleaded guilty to the charge and in imposing the sentence, the fact that the appellant was 19 years old, was not considered. At the hearing of the appeal, whereas the appellant appeared in person unrepresented, the respondent/Republic was represented by Mr. Yese Krita Temba, learned State Attorney. When invited to argue the grounds of his appeal, the appellant elected to let the learned State Attorney begin by responding to the grounds of complaint raised first. He however, reserved his right to rejoin should the need to do so arise. Upon taking the floor, Mr. Temba expressed his stance that the respondent was opposing the appeal against the conviction but not against the sentence of life imprisonment which to him, is illegal. In his brief but focused submission, Mr. Temba began by arguing that grounds 1 to 5 of appeal are baseless and misplaced. On grounds 1 and 5 where it is being complained that there was no evidence from a doctor and that witnesses were not called in support of the prosecution case, it was 3 contended by Mr. Temba that, following the appellant's plea of guilty, there was no need or requirement to bring evidence from the doctor or from other witnesses. He thus prayed for grounds 1 and 5 of appeal to be dismissed. Regarding ground 2 of appeal, it was argued by Mr. Temba that the plea of guilty by the appellant was unequivocal and was entered in accordance with section 228 (1) and (2) of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA). He further submitted that the complaint that the appellant was forced to admit the charge is an afterthought because there was no evidence to that effect. Mr. Temba referred the Court to page 3 of the record of appeal where it is on record that when the charge was read, it was admitted by the appellant. He also referred us to pages 4 and 5 of the record of appeal where the appellant is on record admitting that the brief facts given by the prosecution were true and correct. Mr. Temba did also pray for ground 3 of the appeal to be dismissed because there is no requirement under the law for the charge to be read out three times for the plea of guilty to be recorded. Mr. Temba did also point out that ground 4 of appeal is baseless and that it cannot be complained that the case was one sided in favour of the prosecution where there was no trial as the appellant pleaded guilty to the charge. Turning to ground 6 on the imposed sentence of life imprisonment, it was submitted by Mr. Temba that the fact that the appellant was 19 years old 4 hence, above 18 years of age, was irrelevant and had nothing to do with the sentence that was imposed by the trial court and confirmed by the High Court. He however, argued that since the victim was 10 years old thus, not under 10 years old, then the sentence which ought to have been imposed by the trial court was thirty (30) years imprisonment and not life imprisonment. Mr. Temba did therefore contend that the sentence of life imprisonment was illegal and he urged us to quash it and replace it with the sentence of thirty (30) years imprisonment. Mr. Temba did therefore pray for the appeal to be dismissed except for the life imprisonment sentence which he urged us to quash and replace it with the sentence of thirty (30) years imprisonment. In rejoinder, the appellant prayed for his appeal to be allowed on the basis of the ground raised. He contended that he was 18 years and not 19 years old. The appellant did also insist that he was forced to plead guilty to the charge. Having examined the record of appeal, considered the grounds of appeal as raised by the appellant and after hearing the submissions made for and against the appeal, we find it apposite to preface our determination of the appeal by restating the position of the law regarding appeals against conviction arising from a plea of guilty. Section 360 (1) of the CPA, clearly provides that: 5 "An appeal shall not be allowed in the case o f any accused person who has pleaded guilty and has been convicted on such a plea by a subordinate court except as to the extent or legality o f the sentence". In the case of Josephat James v. Republic, Criminal Appeal No. 316 of 2010 (unreported) the Court appreciated the fact that notwithstanding what is provided under section 360 (1) of the CPA, under certain circumstances, an appeal against a conviction arising from a plea of guilty, may be entertained by an appellate court. The Court went further to state that circumstances under which such an appeal may be entertained included situations where the appellant did not appreciate the nature of the charge or where he did not intend to admit he was guilty of the relevant charge. Other situations where such an appeal may be entertained, as listed by the Court in the case of Josephat James (supra), are: ”1. Where the piea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a piea o f guilty; 2. Where an appellant pleaded guilty as a result o f a mistake or misapprehension; 3. Where the charge levied against the appellant disclosed no offence known to the law, and 4. Where upon the admitted facts, the appellant could not, in law, have been convicted o f the offence charged". 6 Further, the Court, in the same case of Josephat James (supra) stated that: "An appeal may also be entertained where an appellant was pressured into pleading guilty or the plea o f guilty was procured as a result o f a threat or promise offered by a person in authority in consideration o fpleading guilty". Guided by the above stated position of the law regarding appeals against conviction arising from a plea of guilty and having examined the proceedings of the trial court as appearing at pages 3 to 8 of the record of appeal, we are of a settled finding that, under the circumstances of this case, the appellant is not entitled to challenge the conviction which is based on his own plea of guilty. After the charge had been read and explained to him the appellant is on record to have admitted the charge by stating that" Nikwelinilimbaka mlalamikaji"(it is true I raped the complainant). The appellant is also on record admitting the truthfulness and the correctness not only of the brief facts given by the prosecution but also of the contents in the extrajudicial statement (Exhibit PEI) which was received without any objection and in which all the ingredients of the offence of rape were explained. The appellant's plea was thus, unequivocal and it cannot be said that the same was imperfect, ambiguous, unfinished or that the appellant pleaded to the charge as a result of any mistake or misapprehension. Further, the appellant's complaint on ground 2 of the appeal that, he pleaded guilty to the charge as a result of being forced by the police is, as rightly argued by Mr. Temba, nothing but an afterthought. There is nothing on record suggesting that the appellant's own plea of guilty was procured as a result of a threat or promise from any person in authority in consideration of the appellant pleading guilty. Ground 2 of appeal is thus, dismissed. We also agree with Mr. Temba that grounds 1 and 5 are misplaced and baseless. It cannot be complained that no expert evidence from the doctor was tendered by the prosecution or that witnesses were not called in support of the prosecution case, where the charge was admitted by the appellant and where unequivocal plea of guilty was rightly entered by the trial court. Where an accused person admits the truth of the substance of the charge and he is convicted on his own unequivocal plea of guilty, the requirement to call witnesses or bring any other evidence in support of the charge does not arise and it cannot be complained in appeal that the prosecution did not call witnesses in support of its case. Grounds 1 and 5 are also dismissed. Grounds 3 and 4 of appeal are, under the circumstances of this case, where the appellant was convicted on his own plea of guilty, also misconceived. Where there is no full trial because of the admission of the charge by an accused person followed by the conviction based on the plea of guilty, an appellant cannot be heard complaining that the case was one sided in favour of the prosecution or that the burden of proof was not cast upon the 8 prosecution. For that reason, grounds 3 and 4 are baseless and they are accordingly dismissed. Similarly, and also as rightly argued by Mr. Temba, neither under section 228 (1) and (2) of the CPA nor under any other law, it is required that where the substance of the charge is admitted by an accused person, then, for a plea of guilty to be entered, the charge must be read three times. The procedure to be followed where the plea taken turns to be a plea of guilty was well explained in Adan v. Republic (1973) EA. 445 by Spry V.P and restate by the Court in Josephat James (supra) thus: "When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person the essential ingredients o f the offence charged. I f the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea o f guilty. The magistrate should next ask the prosecutor to state the facts o f the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. I f the accused does not agree with the statement o f facts or asserts additional facts which, if true, might raise a question as to his guilty, the magistrate should record a change 9 o f plea to "not guilty" and proceed to hold a trial. I f the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement o f facts and the accused's reply must, o ff course, be recorded". Regarding ground 6 of complaint on the appellant's age and the sentence imposed, we firstly find the appellant's claim in his submission that when the offence was being committed, he was of 18 years of age, an afterthought. First of all, the fact that the appellant was 19 years old was not an issue before the trial court. The appellant's age was clearly stated in the charge sheet as well as in the extrajudicial statement (Exhibit PEI). The fact that the appellant was 19 years old and also that there was no dispute on that fact, is substantiated by the appellant himself in ground 6 of appeal where he is complaining that the fact that he was 19 years old was not considered when the sentence of life imprisonment was being imposed. Because the appellant was 19 years old, he could not have benefited from the imposition of lesser punishments as provided under section 131 (2) of the Penal Code which apply where rape is committed by a boy who is of the age of eighteen (18) years or less. The appellant was not of the age of 18 years or less. It is provided under section 131 (2) of the Penal Code, that: "(2) Notwithstanding the provisions o fany taw, where the offence is committed by a boy who is o f the age o f eighteen years or less, he shaii- (a) if a first offender, be sentenced to corporal punishment only; (b) if a second time offender, be sentenced to imprisonment for a term o f twelve months with corporalpunishment; (a) if a third time offender and recidivist offender, be sentenced to five years with corporalpunishment. Notwithstanding the above conclusion that the appellant was 19 years old and thus, could not benefit to the imposition of lesser punishments under section 131 (2) of the Penal Code, we however, agree with Mr. Temba that since the victim was of the age of 10 years as indicated in the particulars of the charge and in the brief facts given by the prosecution, then the appellant ought not to have been sentenced to life imprisonment. According to section 131 (3) of the Penal Code, the sentence of life imprisonment is imposed to accused persons who commit the offence of rape against girls under the age of ten years. In the instant case, as we have alluded to above, the victim was not under the age of 10 years. It is provided under section 131 (3) of the Penal Code that: "(3) Subject to the provisions o f subsection (2), a person who commits an offence o f rape o f a girl under li the age o f ten years shall on conviction be sentenced to life imprisonment". Because the victim was not under the age of 10 years, the sentence of life imprisonment imposed on the appellant was thus, illegal and the same is accordingly hereby quashed and set aside. In its substitution, we order the appellant to serve a term of thirty (30) years imprisonment from the date of his conviction. Save for the sentence which is substituted in the above manner, part of the appeal as regard to conviction is dismissed. DATED at MUSOMA this 10th dav of June, 2024. A. G. MWARIJA JUSTICE OF APPEAL A. M. MWAPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgement delivered this 11th day of June, 2024 in the presence of the appellant in person/unrepresented and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of