sita so pawa vs republic 2013 tzca 432 8 april 2013

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA ( CORAM: KIMARO.

3. A., MAN PI A. 3.A.. And KAIJAGE. 3.A/1 CRIMINAL APPEAL NO. 11 OF 2013 SITA s/o PAWA........................................................APPELLANT

VERSUS THE REPUBLIC...................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (H.T. SONGORO. 3.^ Dated the 11th day of 3uly, 2011 in Criminal Appeal No. 11 of 2009

JUDGMENT OF THE COURT 3rd & 8th May, 2013 MANDIA. J.A.: On 6/6/2008 the appellant appeared before the District Court of Maswa at Maswa on a charge of Rape c/s 130 and 131 of the Penal Code as amended by Section 5 of the Sexual Offences Special Provisions Act, No. 4 of 1998. The Court read over and explained the charge to the appellant who pleaded thus:- "it is not true." i The District Court then entered a plea of NOT GUILTY against the appellant. After the plea, the prosecutor informed the Court that investigations in the case were not yet complete, and that he did not have any objection to the appellant being released on bail. No order of bail was made, and the record is silent on whether the appellant made an application for bail. The District Court adjourned the case to 20/6/2008 for mention without indicating whether the appellant was out on bail or he was remanded in custody. When the appellant made a second appearance in the Court on 20/6/2008 the prosecutor prayed for a date of preliminary hearing to be fixed. Instead of fixing a date for preliminary hearing, the Court adjourned the case to 4/7/2008 for mention, and indicated that the appellant should further be remanded in custody. The use of the word "further" on 20/6/2008 indicated that the appellant was remanded in custody at his first appearance in the District Court though there was no order for his remand in

custody. On 4/7/2008 the prosecutor asked the District Court to fix a date for preliminary hearing. This time the Court obliged and fixed the case for preliminary hearing on 30/7/2008. The preliminary hearing was conducted on 30/7/2008 and the case fixed for trial on 13/8/2008. On the date appointed for hearing however, the case was adjourned because no witness appeared in Court to testify. Thereafter the case was adjourned five times, on 27/8/2008, 10/9/2008, 24/9/2008, 22/10/2008 and 30/10/2008 either for lack of witness or because the appellant had not been removed into Court from the remand. From 30/10/2008 the appellant was next brought up in Court on 13/11/2008. The prosecutor then informed the Court that there was one witness present and ready to testify. The Court then reminded the appellant of the charge. The appellant's plea was:- "It is true." The Court entered a plea of guilty to the accused's plea. The prosecutor outlined the facts of the case which showed that on 4/6/2008 at 11.00 a.m. the appellant was at Ng'ami Village. He found two girls playing outside their house. One of the girls was an eight years old girl called Habi Malele. The appellant sent the other child playing with Habi on an errand. When the other girl left, the appellant took Habi Malele inside a hut used as a bathroom, undressed her and then took off his (i.e. appellant's) own clothes. The

appellant then, in the words of the recording magistrate proceeded to "have carnal knowledge" of Habi Malele while covering the little girl's mouth to prevent her from screaming. Presently the girl's father appeared on the scene and found the appellant actually in the act of having sexual intercourse with the little girl. He apprehended the appellant and took him to Maswa Police Station. The girl child was sent for medical examination while the appellant was charged with the offence of rape. When asked whether the facts are correct or not, the appellant's reply was:- "The facts are correct" After this reply, the Court convicted the appellant on his own plea of GUILTY". After the conviction the prosecutor did not give to the Court the appellant's previous history as an offender. The Court then asked the appellant to give any mitigating circumstances, to which the appellant said:- 7 have nothing to say in mitigation." While awarding sentence, the Court remarked that the appellant was a first offender, even though the appellant's past record was not given by the prosecutor. Despite this the Court sentenced the appellant to life imprisonment, ostensibly because the victim was aged eight years. The appellant was aggrieved by the sentence imposed on him. He preferred an appeal to the High Court of Tanzania against both conviction and sentence. His appeal to the High Court was based

on two grounds, namely:- 1.) that his plea of "guilty" in the court of first instance was prompted by inducements from the prosecutor that he will get a lenient sentence; 2.) that the sentence of life imprisonment imposed on him by the court of first instance was improper. The appellate High Court cured a defect in the charge with regard to the section of the law under which the appellant was charged under section 388 of the Criminal Procedure Act, and then found that the appellant had pleaded guilty and there was no evidence of threat or inducement in the plea. The appellate High Court also found that the sentence for rape of a child below the age of ten years was life imprisonment. The Court therefore dismissed the appeal against conviction and sentence. This made the appellant lodge the present appeal. In his memorandum of appeal he lodged in this Court the appellant raised four points, all of which point out to the propriety of the plea of guilty which he entered in the Court of first instance. The appellant appeared in person, unrepresented to argue his appeal, while the respondent/Republic was represented by Mr. Hashim Ngole, learned Senior State Attorney. The appellant adopted his memorandum of appeal and had nothing to add to it. On his part Mr. Hashim Ngole for the respondent/Republic declined to support the conviction and sentence. He argued that the plea was

equivocal which means no conviction could be based upon it. He also went on to say that the use of the word "carnal knowledge" and " found in the act" used when narrating the facts are technical terms which the appellant might not have understood. On sentence, the learned Senior State Attorney did not support the same for the reason that a sentence for first time sex offender aged fifteen years is corporal punishment only as provided under Section 131 (2) of the Penal 6 Code as amended by the Sexual Offences Special Provisions Act, Act No. 4 of 1998. As regards the appeal against conviction, the facts show that the appellant found two young girl children playing outside their house. He sent one of the children out of the way by sending her on an errand. When the child left, he took the remaining one, eight year old HABI d/o MALELE, into a bathroom, undressed her, undressed himself and proceeded to commit the sexual act with the child. The appellant was caught in flagrante delicto by the girl's father. The medical evidence tendered after the plea showed that the appellant had infected the child with gonorrhoea after the act. These are the facts which the appellant admitted were true. It is these facts which the prosecutor says are equivocal. What is equivocal about a young male undressing an eight year old child, undressing himself, sexually penetrating the child, and

being caught while doing it? We are in agreement with the trial court and the first appellate Court that the facts disclose the offence of rape, and that the appellant pleaded guilty and no appeal could arise from a plea of guilty as provided under section 360(1) of the Criminal Procedure Act, Chapter 20 R.E. 2002 of the laws. With respect, we will differ with the learned Senior State Attorney. We agree with the trial Court and the appellate High Court that the plea entered by the appellant is unequivocal thus no appeal could arise from such plea. The appellant also raised issue with the propriety of the sentence imposed upon him. The trial Court found that the appellant was a first offender. His age was given in the charge sheet as fifteen years. Under Section 131 (2) of the Penal Code the sentence for an offender of the appellant's description is corporal punishment. This aspect of the law was overlooked by both the District Court and the appellate High Court. We therefore set aside the sentence of life imprisonment. The appellant has already served five years of imprisonment which he should not have served. We will therefore not order the sentence of corporal punishment to be carried out. We order that the appellant be released from jail with immediate effect unless he is held on some other lawful cause. 8 DATED at TABORA this day of May, 2013. N.P. KIMARO

JUSTICE OF APPEAL W.S. MANDIA

JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE\OF APPEAL the original. 0 " / I 5,V *' \- In f -i i i-.i vl\ r \ \ :* \s>\ v ,yl 9