20080527 TZHC Mtwara

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IN THE HIGH COURT OF TANZANIA .ATMWANZA

APPELLATE JURISDICTION HC CRIMINAL APPEAL NO 130 OF 2007 (Original Cr. Case No. 470 of 2001 of the District Court of Geita District at Geita: Before: J.B. C. Massito, Senior District Magistrate) MAWAZO ROBERT STEPHEN ...................... APPELLANT Versus THE REPUBLIC ··············~······················RESPONDENT 19/3/2008.& 27/5/2008

JUDGMENT RWEYEMAMU,J: This is an interesting 'appeal'. Mawazo Robert Steven was arraigned on a charge with two counts; Office breaking and stealing els 296 (1) and 265 of the penal code respectively. It was alleged that he broke into the offices Nyanza Cooperative Union and therein stole a number of articles whose total value was T. Shs. 34.000/=. He pleaded guilty and was sentenced to serve 10 years and 5 years imprisonment for the two offences. That decision was delivered on 7/12/2001. Dissatisfied, he appealed that sentence and filed a 5 grounds Memorandum of Appeal (MA) submitting basically that, the sentence was too harsh considering; that he pleaded guilty thus saving time and resources; the nature of the offence and that the two offences were committed in the same transaction. While admitting that he was a habitual offender i.e. that he was serving another sentence of 7 years, he believed that such a factor alone did not justify the stiff sentence meted out. He added that the period he had already served, to quote his own words; "is enough for me to be a proper subject and it is a lesson for others too". I hasten to add that I agree with him for reasons to be explained later. Strangely at the hearing of the appeal the appellant had a change of stance and submitted that he never pleaded guilty, that he was convicted and sentenced without being heard. The Republic vide Mr.

Kiria state attorney protested the appellant's submission at hearing explaining that the facts on record negates it. According to the record, the charge was first read to the appellant on 3/12/2001 when he pleaded guilty but the prosecution could not produce facts on that date, the case was adjourned to 6/12/2001 but could not proceed because exhibits had not been 2 brought. The charge was again read to the accused on 7/12/2001, he pleaded guilty; facts were adduced and he accepted them. I should perhaps begin by stating the obvious that; conviction following a guilty plea is not appealable except under special circumstances, among them where the plea is equivocal and/or facts admitted do not disclose the offence charged. The sentence however is appellable as the appellant had initially done in his M/A. The first issue for decision therefore is, whether the appellant pleaded guilty or was convicted without being heard as alleged by him. After going through the facts on record, particularly the appellant's MA, I completely agree with grounds advanced by Mr. kiria that the accused's submission on appeal was an afterthought. Further, in my opinion if the appellant had been convicted unheard and never pleaded guilty, that would have been his key complaint in his MA. It is not in accord with common sense, neither the law that the appellant would skip such a fundamental issue and

only raise it at the time of hearing. I believe the appellant may have thought the court had no record, so took a chance hoping to argue an appeal without a MA. That can not be done. 3 Having decided that the appellant was convicted on his own guilty plea, the next question for decision is whether his plea was equivocal or not? Authorities are abound regarding what is considered an equivocal plea, see among others Nhundu Lufwegha v.R Cr. App. 133/2003, (CA, Mwanza registry-unreported) and Msafiri kaduruma v. R Cr. App. 75/2003 (CA, Mwanza registry- unreported). Elaborating on situations where an appeal can be allowed following a guilty plea, Samatta J. (as he then was) held in Lauren Mpinga V R (1983) TLR 166 that:- "(ii) An accused person who has been convicted by court of an offence on his own plea of guilty may appeal against conviction to a higher court on any of the following grounds".

1. That, 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 ofguilty,· 2. That he pleaded guilty as a result of mistake or misapprehension; 3. That the charge 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". (Emphasis mine) And where the plea is ambiguous, the CA has held that such a plea can be remedied when the facts adduced by the prosecution and admitted by the accused disclose each ingredient of the offence charged. See Joma Kidelemi v.R. Cr. App. 14/1998, (Mwanza registry-unreported). 4 I have checked the proceedings, the charge was straightforward, the facts clearly disclosed the offence to which the · appellant pleaded in the following manner; 'facts of the case are correct and I admit it that I break the said store -room and steal the alleged goods and the Exhibit "A" collectively was found on me" In view of that I have no hesitation in finding that; all ingredients were spelled out in the facts admitted; the plea was unambiguous as such; the appellant's plea was unequivocal and for that reason, his conviction by the DC is not appellable. The· next question is whether the appellant's sentence was merited; or deserves intervention by this

court. I am aware of the general principle that an appellate court will not readily interfere with a legal sentence of the trial court; it runs thus; "(iii) before an appellate tribunal interferes with s sentence, it must consider whether the magistrate has in fact misdirected himself in any particular aspect or whether the sentence is so manifestly excessive that it is clear that there must have been misdirection even though not explicit;" ! Steven s/o Mkone & Mara Coop. Union(l984) Ltd Vs Republic (1987) TLR 36; See also the CA in Hatibu Ghand & Others Vs R. (1996) TLR 12 CA." The appellate court can not interfere simply because: "It would not have imposed that sentence if it were the trial court" Wilson Fanuel v. R, 1993 TLR (CA.) 5 Now, in what kind of situations is the sentence to be regarded as manifestly excessive? Again, that aspect has been considered a number of times by this court. Hon. Chipeta Jin Ramadhani Mwenda v. R 1989 TLR 3 concluded, and I agree with him, that a sentence is excessive where it does not ''fit the crime and guilty as well as ·circumstances of the offender;" To bring to light the application of that general principle, even at the risk of making this decision overly long, I will examine some instances where an appellate court either interfered or desisted from interfering with a legal trial court sentence. In Ramadhani Mwenda's case, the Judge

considered age as a circumstances of the offender and held, I paraphrase, 'youthful offenders should be treated with leniency' citing R v Juma Rashidi (1972) HCD 185 and added that 'prevalence of the offence is not the only factor'. In the case of Bernadetta Paul Vs R where the accused had pleaded guilty to killing her 8 day old baby, the Court of Appeal considered and held that the fact of the accused's plea of guilty - justifies a lenient sentence: It reduced the trial Judge's sentence of 4 years to almost two years (the period she had already served). 6 Again, a deterrent sentence was reduced in the case of Joma Mabembela Vs R., HC Cr. App. 93/2004; Mwanza (registry), (unreported); involving the offence of cattle theft. The trial court sentenced the accused to 8 years imprisonment, following full trial. On appeal Masanche J, cited with approval the decision by the late Katiti J in RV Magiloigulila Cr. Rev. 13/1981; Mwanza registry; as cited in Criminal law and Procedure, A digest of Cases B.D. Chipeta that: "when considering whether such sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to such offence, the place which such criminal conduct occupies in the scale of seriousness of the offence ... "(Emphasis mine). He then went on to note

that; 'the sentence customarily observed with respect for such offences is 5 years' and reduced the sentence accordingly. On the other hand, a deterrent sentence was confirmed in the case of R. V. Kabula Mhoja, Cr. Revision 12/87; (] 986) TLR 248. In that case, the accused was a first offender who had pleaded guilty, the Judge found the deterrent sentence justified because "the conduct of (accused) is so reprehensible as to attract a sufficiently deterrent sentence; for she is clearly a very sadistic woman". Again, the Court of Appeal confirmed a deterrent sentence in another case of cattle theft where; arms were used, 'raising presumption of intention to kill'; a big 7 . /. / number of cattle had been stolen; none recovered; and the offence was prevalent. See Athumani Hussein v. R, I 988 TLR It appears to me that much as there are no hard and fast rules, the cases reflect a principle that a sentencing exercise is not haphazard. Apart from the usual principles, the court bears in mind the following that: A sentence has to reflect circumstances specific to each case including manner of commission of the offence; seriousness of the offence; conduct and circumstances of the offender, while keeping in mind sentences customarily passed for a given offence; at the same time not loosing focus of the objective served in sentencing. A sentence punishes but also sends a message to. the

offender, likely minded individuals and society at large. Apart from the usual deterrence function, (and I hasten to state that whether or not a stiff sentence deters, is debatable), a sentence should also spell a clear message; that it pays to save cost and time by. pleading guilty. A sentence should reflect; "tile place M,icll such criminal conduct occupies in tile scale of seriousness of the offence" meaning that gruesome offences will be punished more; that use of arms will be punished more than none use; and to society at large, that sentences are not passed capriciously; that there is method and consistency in sentences 8 passed by its courts because a contrary perception by the people would be a disservice to the cause ofjustice. In the present case, the appellant was sentenced to 10 years in the first count, the maximum provided by law (- the state attorney's submission regarding the Minimum Sentence Act is not applicable since the minimum for the offence is 5yrs.) In my opinion, that sentence was manifestly excessive considering that; the accused pleaded guilty; no violence was used in commission of the offence; the sum stolen was not colossal- it was a total of 34.000/=, even though the accused had a previous conviction. Under those circumstances, I do not believe reasonable individuals would consider the offence higher up on the scale of serious offences. On the

contrary, I believe a stiff sentence in the above circumstances may have an opposite effect to those intended. For one, it would spell a wrong message to similarly situated individuals that it does not pay to plead guilty ~ no wonder the appellant attempted to opt out after the event. For the above reasons, I find the appellant's sentence to have been manifestly excessive as to warrant intervention by this court. 9 In the result, I find the appeal against sentence merited, quash the sentences and pass such a sentence in each count as would result in the appellants' immediate release, unless he is otherwise lawfully held. It is so ordered. ~MRweyemam Judge 27/5/2008 Order: Case file and Judgment forwarded to the District Registrar- Mwanza HC, for her to deliver the judgment to parties and execute consequent orders. Judge Mtwara HC. 27/5/2008 10