20060529 TZCA Dodoma 2

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IN THE COURT OF APPEAL OF TANZANIA ' . . . .1 ATDOD0MA ..... {CORAM: LUBUVA, l.A., MROSO, l~AL And NSEKELA, :l.A.) ·, I CRIMINAL APPEAL t40. 72 OF 2006 I -- MUSSA ALLY YUSUFU ................ J·, ............... . I ~ ........ APPELLANT .. ~~~ I . ·THE REPUBLIC .......·.. ·•.................. ~ ..................... RESPONDENT i: . I (Appeal from the Sentente of the High Cdurt of Tanzania at !Dodoma) (KaijageJ J.) · i dated the 24 day th bf June, 2001 · I' in II .:r;rninal Sessions Case No. 20 of 2001 i 25 & 29 May 2006 · Ii

JUDGMENT OF THE COURT I . I MROSO, J.A.: ~i · sI The appellant has. come to thi's -Court on a s\ngle ground of . , I appeal that a sentence of tweity years im~risonment for , manslaughter impose::! on him by th~ High Court Jt Dodoma was excessive in the circumstances· of thJ case. · i Brief . Jets I of his case before the High Court will help to shqw the backgro~nd from which _ Ii I . the High Court, Kaijage, J., assessed the sentence he gave to the appellant. ''---- ~ On 15th November, 1998 the appellant attended a wedding - party at Kwadinu Village in Kondoa District. As he danced with the \.A_'ife of his younger brother one Shabani s/o Amir passed between him and his dancing partner. The appellant was apparently annoyed by that conduct and confronted the said Shabani to, protest and in the process assaulted the latter. H~ also assaulted a young man who ' had tried to intervene. It was then the deceased who ,was also a ten- cell-leader tried to arrest him. The appellant stabbed him in the back, causing his death. Four days later he was arrested and subsequently charged with murder. About three and a half years later the. appellant appeared before the High Court where he pleaded guilty to the lesser offence I of manslaughter. He was duly convicted on his own plea of guilty of manslaughter and sentenced to a term of twenty years ~mprisonment after his then advocate, Mr.

Ruhumbika, had pleaded on his behalf • I . mitigating circumstances. Those circumstances were that he was a young man .( aged 25 years at the time he committed the offence)· and was married with one child. He used a knife he had to stab once 3 the deceased who he thought was intending to assault ! him. Mr. Ruhumbika asked the High Court to either discharge the appellant ' conditionally under section 38 of the Penal Code or under section 326 ' of the Criminal Procedure-Act, 1985. We hasten to point out that I section 326 of the Crim·inai Procedure Act, 1985 · was clearly I inapplicable because the. High Court had already convicted the - I appellant whereas under section 326 (1) the court would order the I discharge of an accused person "without pr0ceeding to Gonvict" him. I I Be it as it may, the Judge decided to pass sentence on the appellant and in doing so he said he had taken into account that the appellant was a youthful first offender. He also took into account the I mitigating factors which were pleaded by the advocate for the appellant. On the other side of the case, the judge also corsidered I the fact that the appellant had attended the wedding party taking I with him a lethal weapon and had employed excessive and I unwarranted force in the circumstances then obtaining when he -c~used the death of the deceased. Since the offence the appellant I committed carried a

sentence of- life imprisonment the judge 4 i I considered that a sentence of 20 years imprisq'nment was -· appropr;ate. . -· Before us Mr. Nyabiri, learned advocate who now appears for the appellant, has argued that although the High Court Judge said he I had taken into consideration that the appellant was a first offender, that aspect is not reflected in the sentence which was :meted out to . - I the appellant. He submitted that a cardinal consideration when I I sentencing a young first offender is to reform him. An offender like I I the appellant when sentenced to such a lengthy petiod in prison I would be spending the better part of his whole life under --------------·---· , I ·incarceration, rendering the idea of reformation meaningless. It was . in that sense that the sentence which the High Court imposed on the . appellant could be considered to be manifestly excessive, he argued. . . ' I He cited decisions of this Court in which sentences in,posed by the High Court were interfered with because important mitigating factors I I were either not considered at all or were inadequately considered by the High Court. Such cases were Bernadeta Pa~I v. Republic [1992] TLR 97 and Mohamed Ratibu @ Said v. ;The Republic, . I i. i . Criminal Appeal No. 11 of 2004 (unreported). He asked Fhis Court to reduce the sentence appropriately. Ms. Mwanda, learned State Attorney for the;

respondent Republic, on the other hand supported the sentenc$ which was meted to the appellant. She argued that the High Cqurt had duly I taken into consideration relevant mitigating circumstances ~elating to I the appellant and that if it is appreciated that -th'e offence of I I manslaughter carries with it a sentence of life imprisonment, then io I I years cannot be said to be manifestly excessive in the drcumstances I , I that the appellant committed the offence. She reminded the Court . . I I also that an appellate court does not lightly interfere 1ith a sentence assessed by a trial court unless such a..seAt@l:.lGe-+s-i+l€@~r-is.wrong I in principle or the . sentencing . magistrate or j11dg€ fellI into material I • error of fact or law. She cited a decision of this Cqbrt in Andrew I _.. 1 Colman Shayo v. Republic, Criminal Appeal No~ 114 of 2003, unreported, in support of those principles. She asked the Court to -------- .. sustain the sentence which was imposed by the High Court. . I

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I I I i I I I.· 0 I ,r,~jl;'7'1 We are fully aware of the guiding principle that an appellate 1 I court, including this Court, must not interfere with a sertence which i has been assessed by a trial court unle$S such sentenc~ is illegal or ' ·1 the sentencing court followed a wrong prindple or failed to take into < : account important mitigating factors such as that the convicted I person is a first offender, the period he spent in custodx before being , I convicted and sentenced, his age, health and any other meritorious extenuating-- circumstances like the fact' that the convicted person ' readily pleaded guilty to the offence and thereby ~emonstrating ' . . remorse. (!. sentence which is man\festly excessive or patently inadequate may be altered on appeal. 1 We, like the High Court Judge, ~ppreciate ·that the appellant I , I had obviously overi·eactec! to a situation which could have ended in far less tragic consequences. We observe that the, learned judge I stated that he took into consideration the fact that th~ appellant was I , . I youthful and a first offender. He also considered the mitigating I I factors which were pleaded by appellant's advocate.I However, he did not make it clear that he also took into account in appellant's · I J . I 7 I favour that he had pleaded guilty to the offence of manslaughter of which he was convicted. That was a very significant

mitigating I circurristance which suggested remorse. I In Bernadeta Paul v. Republic which Mr. Nyabiri cited to us the High Court apparently did not consider that the appellant in that I I case had pleaded guilty to an offence of infanticide. This Court when -- considering that aspect in an appeal against sentence said - - I It is our considered view that had the learned judge taken into account appellant's plea of • ! guilty to the offence ---- she (the judge) i would no doubt have found that the appellant . I was entitled to much more lenient sentence than the sentence of 4 years she imposed. 1 I Taking that factor, among others, into consideration this Court allowed the appeal and set aside the 4 year prison sentence which I i had been imposed by the High Court on that appellant. , 8 In Francis Chilewa v. R [1968] H.C.D. 510 whi~h was cited . · _, by this Court in Bernadeta Paul, t,he appellant in that case had I pleaded guilty to the offencP with which he was charged. The appellate court in that case said:- I It is generally, if not universally, recognized ' that an accused pleading guilty to an offen~e with which he is charged qualifies him for t~e I . exercise of mercy from the court. The reason ! is, I think obvious, in that one of the main I objects of punishment is the reformation of ' 1 I the offender. Contrition is the first ·step I toward reformation, and a

confessio~n of a I crime, as opposed to brazening it out, is i'an . i indication of contrition. Therefore, in such a I case a court can, and does impose, a wider sentence that (sic) in (sic) otherwise have done. In the present appeal, considering that the appellaf'.lt had pleaded guilty to the charge and was stili relatively young and ineeded time tQ_ ( ···, I :,,L.. -:: .· I reform and be a. better member of society, the sentence of 20 years imprisonment was manifestly excessive, even after taking into 9 . ! I account his unduly violent cor1duct at the time he committed the offence. I In the Mohamed Ratibu @ Said case cited above, the ! appellant in that case had been sentenced by the High Court to a I term of 20 years imprisonment after he plead~d guilty to I I manslaughter. He appealed to this Court complair)ing that the I sentence was excessive.· The High Court judge ar:fpeared to have I taken into consideration aggravating circumstances only but not 1 1 extenuating factors such as that the appellant had ple:aded guilty to the charge. We said in that appeal:- - ... although ... the appellant acted with undue violence during the fight with his brother~in- 1 law, the trial court should also have given due I consideration to the facts that he was a fiirst offender, had readily pleaded guilty to :the charge and had already spent over four y~ars in custody. Those were legitimate

mitigating circumstances and we Lclieve that haG ' the . I I High Court taken those factors ,into I I 1·. 10 • •'\ consideration ... it would not have imposed .-... what i.; plainly an excessive sentence. Tbis Court reduced the sentence to on2 of eight years iniprisonment. For the reasons which we have attempted to give above, we allow the appeal by setting aside the sentence :of 20 years imprisonment and substitute in its place a sentenc~: of ten years imprisonm-ent, which we think meets the justice of-the case. It is so ordered. th DATED at DODOMA this 29 day of May, 2006. i ',• D.Z. LUBUVA

JUSTICE OF APPEAL J.S. MROSO

JUSTICE OF APPEAL H. R. NSEKELA

JUSTICE OF APPEAL I certify that this is a true copy of the original,'