1 OCR Sentence When to interfere with trial court sentence What trial Court should consider in mitigation

IN THE COURT OF APPEAL OF TANZANIA

AT MTWARA ( CORAM: OTHMAN. C.J.. MBAROUK.J.A. And BWANA. 3.A.) CRIMINAL APPEAL NO. 106 OF 2012

BETWEEN RAJABU DAUSI..........................................................................APPELLANT

VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) (Mandia. J.) dated 7th June, 2001 in Criminal Appeal No. 32 of 2001

JUDGMENT OF THE COURT 25th & 29thJUNE, 2012 OTHMAN, C.J.: The appellant, Rajabu Dausi, was originally charged with the murder of Alphonce Pegeje Mawawa, his step-father contrary to section 196 of the Penal Code, Cap 16 R.E.

2002. However, on 07/06/2002, he was convicted of manslaughter on his own plea of guilty and sentenced to twenty-five (25) years imprisonment. He now appeals to this Court against sentence, principally on the ground that the High Court had failed to consider a number of relevant factors in the sentence of imprisonment meted to him resulting in a manifestly excessive sentence. At the hearing of the appeal, the appellant was represented by Mr. Michael Ngalo, learned counsel. The respondent Republic, which resisted the appeal was represented by Mr. Renatus Mkude, learned State Attorney. Briefly the uncontroverted facts of the case were that on the fateful day, i.e. 17/11/2000 when the deceased who had drunk pombe returned home, he found his wife, the appellant's mother sick in bed. While searching for a match box, the deceased overturned his sick wife's bed and she fell down. A confrontation of words between the deceased and the appellant ensued. The appellant ran outside the house and the deceased followed him. The appellant picked a pestle and hit the deceased three times on the head. He fell down, lost consciousness and as revealed by the post-mortem medical examination report (Exhibit P. 2), died soon thereafter of head injury and internal bleeding. Mr. Ngalo, submitted that the learned Judge had not taken into account a number of relevant factors, including the fact that the

appellant was a first offender, he had pleaded guilty to the offence of manslaughter 2 and had spent two and a half years in custody before his conviction and sentence. Worst still, he submitted, the learned Judge had considered an aggravating circumstance that the appellant had harbored "ill-feelings" against the deceased, which was not the case as they had lived together peacefully for a long period, save for the unfortunate incident. Relying on Willy Walosha v R., Criminal Appeal No. 7 of 2000 (CAT, unreported) he submitted that the learn Judge's approach was visibly biased or prejudicial in finding that the appellant had "ill feelings" towards the deceased, a fact that was not established. Mr. Ngalo further submitted that no account was taken that it was the deceased who ignited the incident by overturning the bed. He had also followed the appellant outside the house. He urged us to interfere with the sentence imposed by the High Court by reducing it to half the period of imprisonment imposed, as the appellant would have been in custody and prison for a combined period of twelve and a half years. On his part, Mr. Mkude relying on Philipo Pastory and Petro Pastory v. R. Criminal Appeal No 331 of 2007 (CAT, unreported) submitted that there was no need for the Court to interfere. The sentence imposed by the High Court was perfectly legal and within his discretion. It was less

than life imprisonment, the prescribed maximum for the offence 3 of manslaughter under section 198 of Penal Code. He strenuously contended that the High Court must have considered all the mitigating circumstances raised by the appellant, much as it did not expressly say so. He went on to submit that the appellant hit the deceased three times with a pestle. This should be appreciated in the light of parent-child relationship they had. That as the appellant was younger than the deceased, he could have employed other less forceful means. He urged us to find the sentence appropriate in the circumstances. In a short rejoinder, Mr. Ngalo submitted that on the available material, both the deceased and the appellant were to blame. That the deceased too as an elder person could have used him wisdom and not followed the appellant outside the house, following their verbal confrontation inside the house. The case, he said, called for the Court's leniency. We deal next with the merits of the appeal. The scope of a sentencing appeal before this Court is fairly limited in that we are required to show considerable deference to the exercise of a sentencing discretion by the trial Judge. The Court does not have a free reign to alter or vary a sentence imposed by a trial judge merely because had it been the court exercising the sentencing discretion, it would have imposed a different sentence

(See, Masumbuko Herman v. R. Criminal Appeal No. 9 of 2002 (CAT, unreported)). The law is well settled that the circumstances in which the Court can interfere with the sentence are those where, it is: (a) manifestly excessive, or (b) based upon a wrong principle, or (c) manifestly inadequate, (d) or plainly illegal, or (e) where the trial court failed or overlooked a material consideration or (f) where it allowed an irrelevant or extraneous matter to affect the sentencinq decision (See: Silvanus Leonard Nquruwe v. R., (1981) T.L.R. 66; Nyanzela Madaha v. R. Criminal Appeal No. 135 of 2005 ; Mussa Ally Yusufu v. R. Criminal Appeal NO. 72 of 2006 (CAT, both unreported). Bearing in mind the appellant's memorandum of appeal and the submissions, it would appear to us that Mr. Ngalo essentially faults the trial court, both for overlooking a number of material mitigating factors and for giving added weight to a purported aggravating factor, that is, the appellant's ill-feelings towards the deceased, which he argued had not been established by the facts of the case, resulting in a manifestly excessive sentence. Having closely examined the record and bearing in mind the rival submissions, in our respectful view, we are not a shade persuaded that the learned Judge by employing the expression "taking the circumstances of the case" actually took into consideration the entire set of

material factors relevant to sentencing that were placed before him. For, if it were so, why on one hand specifically emphasize only that the appellant was a young man in his mid-twenty and on the other side, abstain altogether from specifically noting that he was also a first offender, a recognized mitigating factor. In Willy Walosha v. R., {supra) we had occasion to observe: "It appears to us that, with respect, although ostensibly a judge may say that he has taken into consideration mitigating circumstances in assessing sentence, it is not always apparent that he has in fact done so. For example, first offenders who plead guilty to the charge are usually sentenced leniently, unless there are aggravating circumstances. Also, the period on offender has spent in remand custody before they are sentenced is also usually taken into consideration to reduce the sentence which the offender would otherwise receive. We expect judges will in future demonstrate more clearly, when assessing sentence, that they have properly taken into account both mitigating and aggravating circumstances o f each individual case". Furthermore, we would also agree with Mr Ngalo that the two relevant factors he raised do not seem to have featured in the impugned sentencing decision. Namely, that the appellant had pleaded guilty, which 6 is also a sign of remorse (See, Bexnadetta Paul v. R. (1992) T.L.R.

971, Agness Julius v. R., Criminal Appeal No. 108 of 2010) (CAT, unreported); Mussa Ally Yusufu's case {supra)) and the fact that the appellant had been in remand for two and a half years before his conviction and sentence (See, Katinda Simila @ Ng'waninana v. R. Criminal Appeal No 15 of 2008; Nyanzela Madaha v. R/s case {supra)). While it cannot be denied and the appellant did not attempt to, that he hit the deceased three times on the head with a pestle, it should be recalled that the triggering event, very unfortunate and regrettable as it was, consisted in the deceased's act of overturning the bed in which the sick mother of the appellant layed. We would also agree with Mr. Ngalo that an inference of "ill-feelings" could hardly have been established, as the appellant and the deceased had lived together peacefully and there was no evidence of any jDrior misdeed by the appellant, save for what took place on that fateful day. When all these relevant factors are properly considered, the sentence imposed would appear to us to be manifestly excessive. In the result and for the foregoing reasons, we are of the respectful view that had the learned Judge fully considered all the above, he would have been inclined, as we are, to impose a more considerate sentence than the one levied. In the event, we are constrained to interfere with the sentence levied. The appeal is allowed, the sentence of twenty-five years imprisonment is set aside and in substitution thereof, we hereby impose a sentence of imprisonment for a period that would result in the immediate release of the appellant from prison; unless he is otherwise lawfully held on account of another matter. DATED at MTWARA this 28th day of June, 2012 M. C. OTHMAN

CHIEF JUSTICE M. S. MBAROUK

JUSTICE OF APPEAL

DEPUTY REGISTRAR 8