20180827 TZHC Mbeya

-I-. - IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA CRIMINAL APPEAL NO. 162 OF 2016 (Appeal from the judgement of the District Court of Rungwe at Tukuyu, Criminal Case No. 150 of 2016) MOSES KIBONA GWANKEGANE © NGUSAGA ............APPELLANT VERSUS THE REPUBLIC ...................................................... RESPONDEI1T JUDGMENT tO Hearing date: 2010812018 Judgment date: 271812018 NGWEMBE, 3: Moses Kibona Gwankegane © Ngusaga, was convicted on his own plea of guilty consequently was sentenced to serve thirty (30) years imprisonment for the offence of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap 16 R.E. 2002. Brief facts are that on 17 September, 2016 at about 19.00 hours at Kiloba village within Rungwe District in Mbeya Region, the appellant had carnal knowledge against nature with Innocent s/o Thobias aged 14 years old. Soon after the incident the accused was arrested and 20 sent to the ward office and on 18th September, 2016 was sent to Police Station and later on the same day was sent to Makandana Hospital where he was admitted. The source of being admitted was the people in that village beat him when they were arresting him and being taken to Ward office. On 19/9/2016 while at Hospital he confessed to have committed the offence as per the caution statement which on the hearing date was admitted as exhibit together with PF3 of the victim. Facts of the case were read over and the accused admitted to have committed the offence and the trial court entered plea of guilty. The trial court rightly and is in record that asked the accused to narrate the story on what happened on the fateful day with the victim. The accused narrated the whole incidence, the way he was arrested, beaten, taken to Masukulu ward office and later to police station and hospital. The court [0 convicted the accused for unequivocal plea of guilty and sentenced him according to law. The appellant has awakened and came up with six grounds of appeal as summarized hereunder: - That he did not have canal knowledge with the victim against nature; That he was severally beaten by mob of villagers with a view of forcing him to confess the offence; That he was threatened by police officer when taking caution statement. For he was admitted at hospital due to being beaten by villagers; 2-0 That the trial court erred in law to proceed with plea while he was unconscious at hospital; The examination of the victim (PF 3) was not tendered in court as an exhibit; and That he was not examined to prove that he had carnal knowledge with the victim. All these grounds of appeal are intended to contest against conviction and sentence of the appellant and that the trial court erred in law and fact in convicting him. On the hearing of this appeal he prayed to adopt his grounds of appeal and did not have any substantial issue to add than to plead lenience based on his grounds of appeal. The Republic was represented by Mr. Rogers State Attorney who argued that I the appeal is misconceived for same is contrary to section 360 (1) of the CPA. From the outset I agree with the learned state Attorney this appeal is misconceived according to law. The learned State Attorney proceeded to argued that the charge of unnatural offence was read over to the accused and unequivocally, pleaded guilty even after reading all facts of the case, he pleaded guilty. The court gave him another chance to narrate the whole story of how he committed the offence. Such narration cannot be done by an unconscious person in a court of law. Pages 3 and 4 of the proceedings speaks louder. In page 5, the prosecution tendered caution statement of the accused who confessed to have committed the office and the PF 3, which corroborated the caution statement and the story of the accused himself. Finally, the State Attorney referred this court into a case of Khalid Athuman Vs. R. Criminal Appeal No. 103 of 2005, another is a case '3 10 of Bido Mgaya Vs. R. Criminal Appeal No. 250 of 2010. The state Attorney rested his submission by praying that the appeal is baseless and same should be dismissed entirely. After hearing both parties, the fundamental question for determination is whether in the circumstances, this appeal is legally proper before this court? Section 360 (1) of the CPA is quoted hereunder for easy of reference: - Wo 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 legailty of the sentence '; l0 It is criminal practice and procedure that appeal against a conviction based on an unequivocal plea of guilty cannot be sustained. This position was also pronounced by several judgements of this Court and the Court of Appeal including in the case of John Samwel © Kabaka and Another versus Republic, criminal Appeal No. 58 of 2005, (Unreported) where the court held: - "The appellants' plea being unequivocal, they were correctly convicted on their own plea of guilty. It would follow that no appeal would He on a plea of guilty. In this case, the appellants having been convicted on their unequivocal plea of guilty cannot now be heard to complain about the con viction" In Kalos Punda versus Republic Criminal Appeal No. 153 of 2005 the Court of Appeal dismissed all grounds of appeal filed by the appellant who pleaded guilty to the offence of attempt rape and at the end the appeal was dismissed entirety. The appellant in this appeal is challenging the conviction while at trial pleaded guilty and was given time to narrate the whole incidence until the commission of the offence. In order for the appellant to have been pleaded unequivocally, certain procedures must be followed as rightly promulgated in the case of Adan V. Republic (1973) EA 445 the court considered the manner in which pleas of guilty should be recorded and the steps which should be followed. This is reproduced as under: - (,) "The charge and all the essential ingredients of the offence ID should be explained to the accused in his language he understands; The accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded; The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or add any relevant facts; If the accused does not agree to the facts or raises any question of his guilt his rely must be recorded and change of pleas entered; If there is no change of plea a convict/on should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded" a5 In perusal of the record of trial court, leaves no doubt that the procedure laid down in above case was followed. .1 am indeed, satisfied that in the present appeal, the appellant pleaded guilty and the court gave him another chance to explain by narration the whole incidence and same was recorded properly. The facts presented by the Prosecution together with the story of the appellant himself constituted the offence of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap 16 R.E. 2002. Before conclusion, I am aware on the judgement of Judge Samatta 3 (as he then was) in Laurent Mpinga versus Republic [1983] TLR 166, who provided criteria for tampering with conviction on plea of guilty and YO circumstances on which appeal against the conviction to a higher court may be entertained. Such circumstances include: - I. That the event of 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; ii. That he pleaded guilty as a result of mitake or misapprehension; N. That the charge laid at his door disdosed no offence known to law; and iv. That upon the admitted facts he could not in law have been convicted of the offence charged. 9-0 The records of the trial court do not suggest any of the above criteria which may be employed to justify this appeal. Having so said, the appellant was properly convicted by the trial court. The sentence of 30 years imposed by the trial court is a statutory sentence which according to section 154 (1) (a) of the Penal Code Cap 16 R.E. 2002 is the minimum sentence to whoever convicted on the offence of unnatural offence. Therefore, the trial court rightly, imposed a statutory sentence of thirty (30) years imprisonment. In conclusion, this appeal is devoid of merit same is dismissed entirely. .1 ç C~~ P.J. NGWEMBE f • JUDGE 27/08/2018 Court: Delivered at Mbeya in Chambers on this 27th day of August, 2018 in to the presence of the Appellant and Mr. Baraka Mgaya State Attorney for the Respondent. Right to appeal to the Court of Appeal explained. EM BE JUDGE 27/08/2018