Criminal appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 29201 OF 2024 (Arising from the conviction and sentence of the District Court of Mkuranga (Hon. H. Mwailolo, SRM) in Criminal Case No. 15033 of 2024 dated 5th August 2024) ________ SAADA RENATUS KALENGA….………………..……….. APPELLANT

VERSUS REPUBLIC…………………………..…..………………...RESPONDENT

JUDGEMENT Date of last order: 20th December 2024 Date of Judgement: 3rd March 2025 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Mkuranga in Criminal Case No. 15033 of 2024, dated 5th August 2024, in which the Appellant was accused of assault causing actual bodily harm contrary to section 241 of the Penal Code, Cap 16 R.E 2022. According to the facts, on 17th May 2024, the Appellant was at her home in Luzango village around noon. While there, the victim (name withheld) came back from school, and when asked, she replied that the teachers were in the meeting. In her research, the Appellant learnt that the victim was beaten at school after she had stolen money from her teacher. Thereafter, the Appellant prepared dry 1 glasses and burnt the victim's hands. As a result, she was grievously harmed. The Appellant was then arrested, and on interrogation, she admitted to having caused grievous harm to the victim. The Appellant pleaded guilty when the charge was read over to her. Consequently, the trial Court entered a plea of guilty. When the facts were read over, the Appellant also admitted them. Following such admissions, the trial Court convicted her based on her plea of guilty and sentenced her to serve four years imprisonment and pay Tanzanian Shillings 700,000/= as compensation to the victim. Dissatisfied, the Appellant laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the Trial Court errered in law and fact by failing to consider lenient punishment despite the fact that the appellant has a new born baby aged one month who is now in prison for the offence committed by her mother where the Trial Court could have opted for Community Service as a sentence for the appellant.

2. That, the Trial court erred in law and in fact in law and in fact sentencing the appellant to Four years imprisonment without considering that the appellant had pleaded guilty to the offence hence saved court's time and resources.

3. That, the Trial court erred in law and fact by failing to consider mitigating factors advanced by the appellant where she explained how regretful she was for what she did and she was only trying to correct/discipline the 2 child/victim only to realize that her anger had surpassed ordinary punishment considering that although she is her step mother but she has been taking good care of the victim since childhood and has never done anything harmful to the child until this case despite the victims misbehaving characters.

4. That, the Trial court erred in law and fact by failing to award lenient sentence without considering that the appellant was pregnant during the commission of the offence. Your Honor during pregnancies women normally is faced with a lot of challenges, anger being common among them. The appellant explained that she became furious after realizing that the appellant had stolen her teacher's money at school. Still, she further showed remorse and regretted what she did to the victim after coming back to her senses and she never intended to harm the child/victim.

5. That the Trial court erred in law and fact by not considering the fact that the appellant is the first offender and thus award her with lenient sentence or community service. When the matter came for orders on 20th December 2024, the Appellant appeared in person, while Ms. Grace Kibaki, the learned state attorney, represented the Respondent. By consent, the parties agreed to argue this Appeal by way of written submissions. However, bizarrely, only the Respondent filed the reply submissions. The Appellant’s written submissions in support of the appeal could not be 3 traced from the electronic file. When prompted, the Appellant was surprised to hear that her submissions in chief could not be traced electronically, although the same was presented to the prison admission office on time. Luckily, she came with it on the day scheduled for judgement. For justice to prevail, and since there was no objection from the Respondent, I instructed my assistant to upload it to the system and adjourned the matter. Having satisfied that the pleadings were all set to the system, I then proceeded to prepare this Judgment. The submissions in support of the appeal can be summarized as follows. First, at the outset, the Appellant is not appealing against the conviction or an order of payment of Tanzanian Shillings 700,000/= as compensation to the victim. She is appealing against the sentence

of four years imprisonment. Second, the Appellant is complaining about the trial court's failure to impose a milder or lenient sentence even though she has a one-month-old infant baby. In her observation, the preferable sentence was to order community service in such circumstances. Third, the Appellant faulted the four years imprisonment because she pleaded guilty, thereby saving the court's time and resources. 4 Fourth, the Appellant faults the sentence of four years imprisonment because during mitigation, she explained how regretful she was, as she was only trying to correct or discipline the victim. Although she is the victim’s stepmother, she has been taking good care of her since she was a child and has never done anything harmful despite the victim's misbehavior. Fifth, had the trial Court considered that the Appellant was pregnant at the time of the commission of the offense, it would have imposed a lenient than custodial sentence. And sixth, the trial Court failed to consider that the Appellant was the first offender. In response, Mr. Daudi Basaya, the learned state attorney, compressed the first, fourth, and fifth grounds of appeal and argued them together. He also amalgamated the second and third grounds of appeal and argued them together. Arguing on the first, fourth, and fifth grounds of appeal, the learned state attorney argued that the Appellant was convicted

and sentenced based on her plea of guilty. An offence of Assault causing bodily harm under section 241 of the Penal Code is punishable by five years’ imprisonment. Due to the nature and seriousness of the offence committed, which caused permanent disability to the victim, 5 the Court sentenced her to serve four years' imprisonment. Based on that, the learned state attorney observed that a newborn baby could not have been used as a shield for the Appellant to get an alternative community service sentence. He contended that the Appellant can still care for her newborn while in prison because there is no law that requires a convict with a newborn baby to be subjected to community service. Expounding on section 3(1)(b) of the Community Services Act No. 6 of 2002, the learned counsel observed that since the Appellant was sentenced to serve four years imprisonment, she cannot enjoy the benefit of the cited law. In other words, the Appellant is unqualified because the term of her sentence is not three years or less. The learned counsel refuted the appellant's argument that she committed the offense because of her pregnancy. While acknowledging that women normally face challenges during pregnancy, such a state does not drag them into unsoundness. As such, the Appellant knew what she was doing, and that is why, after the incident, she locked the victim in instead of taking her to

the Hospital. He considered such a stance a cruelty. The learned state attorney was not amused by the citation of 6 regulation 18(2) (j) of the Community Service Regulation of 2004, G.N 87 of 2004, which provides that before placing an offender into community service, the magistrate shall consider the offender's health. He contended that pregnancy is not a disease and the Appellant cannot enjoy the benefit of the cited law. He added that there is no medical proof that the Appellant was facing health problems during her pregnancy. The learned counsel also observed that even if the Appellant was the first offender, that would not guarantee her an order of community service because the Court should first consider, among other things, the seriousness of the offense committed. He cited the case of Republic vs. Asia Salum and Others (1986) TLR 12. Arguing on the second and third grounds of appeal, the learned counsel observed that the trial Court considered that the Appellant pleaded guilty to the charge. Based on her mitigation factors, the Court sentenced her to serve four instead of five years imprisonment and pay Tanzanian Shillings 700,000/= as compensation to the victim. The learned counsel considered the Appellant's claim baseless. He also reinstated his earlier position that the Appellant had ill intentions because even after the incident, she locked in the victim instead

of 7 taking her to the Hospital. Based on the foregoing, the learned state attorney implored this Court to dismiss the Petition of Appeal. Having dispassionately considered the parties' rival arguments, the question would be whether the appeal is meritorious. To determine this, I shall be guided by the decision of Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), where the Court observed that in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This aligns with section 3(2) (a) of the Evidence Act. It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire 8 evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. According to section 282 of the CPA, where the accused person pleads

“guilty,” the plea shall be recorded, and he may be convicted. According to Ally Shaaban Lila, in his LLM dissertation titled “Plea of Guilty and the law in Tanzania: Challenges Facing Judges and Magistrate in Criminal Proceedings”, the consequences of pleading guilty include a formal conviction, whereby the accused is legally deemed to have committed the offense. Additionally, the Court imposes a sentence, including various penalties such as imprisonment, fines, probation, or community service. An unequivocal plea of guilty refers to an unambiguous admission of guilt by the accused, leaving no room for doubt or uncertainty. It signifies a straightforward acceptance of responsibility for the offense charged. Once the trial Court enters a plea of guilty, section 360 (1) of the CPA provides for the remedy. It reads that no appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on self-plea by a subordinate court except as to the extent or legality of the sentence. For my attention, the issues arising out of this appeal are mainly 9 two: one, whether the Appellant's plea to the charged offence was unequivocal to ground conviction, and two, whether the sentence of four years imprisonment imposed by the trial Court on the Appellant was correct. As prefaced before, when the charge was read over before the Appellant, she pleaded as

follows: “Ni kweli mhe, nilimchoma mtoto kwa kutumia nyasi na nikamsabishia majeraha ya kukatika vidole“. Thereafter, the facts were adduced by the Public prosecutor. They can be summarized as follows: On 17th May 2024, the Appellant was at her home in Luzango village around noon. While there, the victim came back from school, and when asked, she replied that her teachers were in the meeting. Later, the Appellant learnt from the other daughter that the victim was beaten at school after she had stolen money from her teacher. Thereafter, the Appellant prepared dry glasses and burnt the victim's hands. As a result, she was grievously harmed. Having read over as such, the Appellant admitted the facts. In Ramadhani Bakari Yusuph Dodo vs Republic (Criminal Appeal 552 of 2021) 2023 TZCA 224 (5 May 2023), the Court observed that; an equivocal plea of guilty is an ambiguous plea which is 10 capable of having more than one interpretation. In Abdallah Jumanne Kambangwa (supra), the Court stressed that, before convicting an accused on a plea of guilty, as is the case here, material facts of the case creating the elements of the charged offence have to be read over and, where need arises explained to the accused. Then, the trial court shall invite him to admit the facts narrated by the prosecution or deny them, as the case may be. This is so for the trial court to test and establish the

equivocality or otherwise of the accused's plea. In Baraka Lazaro vs. Republic, Criminal Appeal No. 24 of 2016 (unreported), the Court cited Yonasan Egalu and 3 Others vs. Rex (1942) EACA 65 and held that: Where a conviction proceeds on a plea of guilty... it is most desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every constituent and that what he says should be recorded in a form which will satisfy an appeal court that he fully understood the charge and pleaded guilty to every element of it unequivocally. Guided by the above decisions, the question is whether the Appellant's plea of guilty is unequivocal, thereby warranting the 11 conviction. Considering the crime with which the Appellant was charged and the wording of the plea itself, I am satisfied that it was unequivocal. The words “Ni kweli mhe, nilimchoma mtoto kwa kutumia nyasi na nikamsabishia majeraha ya kukatika vidole“ signifies that the Appellant committed the offence charged against the victim. In such circumstances, I am also satisfied that the trial court correctly convicted the accused of the offence charged. Having so observed, the question would be whether the sentence meted against the Appellant was proper. Before I venture into that, I will examine whether the trial Court considered the Appellant's mitigating

factors. As said before, the mitigating factors mainly catered on the following factors: one, that the Appellant pleaded guilty to the charge; two, that she is the first offender; and three, that she has a one-month-old infant baby. Indeed, there are several theories regarding the rationale behind punishment. There are three possible ways a society can cope with crime, including punishing the offender, treating the offender, and preventing crime by manipulating the factors that produce it. In the therapeutic or treatment ideology, the offender is viewed as being 'sick' in that he is the victim of social and physiological forces or of 12 defective conditioning of his personality. The preventive ideology views the offender as 'poor,' or caught in the clutches of environmental or personal circumstances that led him to commit the crime. In the punitive ideology, the offender is viewed as being 'bad' and a threat to the victim and society in general. Generally, in classical criminology theory, punishment aims to retribute, incapacitate, and convince others not to act like the Accused (deterrence). In rehabilitation or reformation theory, the aim is to fix the accused by a means other than just incarceration (imprisonment or custody). I subscribe to this theory. In Tabu Fikwa vs. Republic (1988) TLR 48, Hon. Samatta, J (as he then was) observed as follows; Deterrence is a

well-recognised purpose of punishment, but imprisonment has never been regarded by judges, lawyers or experts in penology as being the only punishment which is appropriate for that purpose. Generally speaking, imprisonment is only justified if it is necessary that the criminal be removed from society. Save where the nature of the offence and the circumstances of its commission call for a custodial sentence, or where the nature of the offence and the circumstances of its commission call for a custodial sentence. As said before, the Appellant pleaded guilty to the charge. The 13 facts indicate that she admitted the crime even to the police. In that circumstance, she served time and costs that this Court would have spent or incurred. I also understand that the remorse or repentance, expressed inter alia, in the form of a plea of guilty, is a mitigating factor and must be given due weight by the court when sentencing the offender. Moreover, one of the objects of punishment is the reformation of the offender. Contrition is the first step toward reformation, and a confession of a crime, instead of brazening it out, indicates contrition. In such circumstances, Courts normally impose a milder or lenient sentence. (see also Francis Chilema vs. Republic (1968) H.C.D 510). In Bernadeta Paul vs. Republic (1992) TLR 97 (CA), the Court inter alia observed that; It is our considered view that

had the learned judge taken into account appellant's plea of guilty to the offence with which she was charged she would no doubt have found that the appellant was entitled to much more lenient sentence than the sentence of 4 years she imposed. According to the records, the Appellant is the first offender, which indicates she has been a good law-abiding citizen. In such a situation, I am reminded that all reasonable efforts should be taken to keep the first offenders out of prison. In Tabu Fikwa vs. Republic 14 (1988) TLR 48, the Court underscored that; The court should seriously consider alternative punishment before sending an offender to prison, especially if he is a first offender. The deterrence effect of a sentence of imprisonment is not always proportionate to its length. …….. every reasonable effort should be made to keep first offenders out of prison. During mitigation, the Appellant repented for what she did to the victim and prayed for lenient punishment because she did not expect to inflict injuries to the victim to that extent. She also informed the Court that she had a one-month-old newborn. According to the records, she stated as follows; Your honor I do regret for what I did. I have taken care of her since she was young. I did not expect that she would be injured to this extent. Your honor I pray for the lenient sentence. Your honor I have a new born I pray for

the court to consider my child. However, I am not in good condition. Having considered the penal section creating the offence and the mitigating factors, the trial Court sentenced the Appellant to four years imprisonment. For this reason, the Appellant considers the sentence imposed more severe considering the mitigating factors. On his part, the learned state attorney argued that the sentence meted against the 15 Appellant was proper, considering the nature and gravity of the offense committed against the victim. In my opinion, considering the mitigating factors by the Appellant, she deserved the milder or lenient sentence because, first, she pleaded guilty to the charge. This means she served time and costs of the Court and the prosecution. As said before, remorse or repentance, expressed inter alia, in the form of a plea of guilty must be given due weight when sentencing the offender. A confession of a crime, as opposed to brazening it out, is an indication of contrition. Second, the fact that she was the first offender, the Appellant was a good-mannered citizen, and thus, as prefaced before, every reasonable step should be taken to keep such an offender out of prison. Close to that, the Appellant has a newborn baby now aged approximately seven months. The interest of justice calls for lenient punishment to protect the interests of the child, who is an innocent angel. While

I agree with the learned state attorney that the Government has extensively invested in prison infrastructure, with respect, I am unable to speculate that the same were designed to serve seven-month-old babies. By so holding, it does not mean that I 16 condone the severity of the offence committed. In Tabu Fikwa's case, the Court observed that the imposition of a substantial fine can have a deterrent effect and may constitute an adequate penalty even in a case of a serious nature. Considering the fact that the Appellant is the stepmother to the victim who raised her since she was a child, a custodial sentence would affect her even more seriously. To that end, I wholesomely endorse the conviction entered by the trial Court against the Appellant. However, the sentence of four years imprisonment is hereby vacated and set aside and substituted with a one-year conditional discharge under section 38 (1) of the Penal Code. The Appellant is hereby warned not to commit any offense within one year, commencing today otherwise, the provisions of section 38A of the Act shall apply accordingly. Equally, an order to pay Tanzanian Shillings 700,000/= as compensation is hereby vacated and set aside and substituted with an order to pay Tanzanian Shillings 2,000,000/= as compensation to the victim within three months from today, failure of which the original sentence imposed by the law shall be accordingly enforced. The Republic, in collaboration with the deputy registrar of this Court, shall ensure compliance with this Judgment. 17 It is so ordered. The right of appeal is fully explained. DATED at DAR ES SALAAM this 3rd March 2025. H.S. MTEMBWA

JUDGE 18