republic vs abdul razack othman mohamed 2020 tzhc 1979 31 march 2020

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 01 OF 2019 (Originating from Criminal Case No. 420 of 2016 in the District Court o f Iiaia at Iiaia) THE REPUBLIC.............................................APPELLANT

VERSUS ABDUL RAZACK OTHMAN MOHAMED.......... RESPONDENT Date o f last order -17/02/2020 Date o fJudgment - 31/03/2020

JUDGEMENT MGONYA, 3. Aggrieved by the decision of Ilala District Court at Ilala in Criminal Case No. 420/2016 the Appellant in this matter appealed before this Honorable Court with one (1) ground of appeal against the sentence, as herein below: "That the Honorable learned trial Magistrate erred in law by sentencing the Respondent to a conditional discharge sentence instead of a statutory sentence of 7 (seven) years upon conviction for the offence o f grievous harm." When the matter was for hearing the Appellant before this Court, prayed the ground of Appeal be disposed off by way of written submissions for consideration. Ms. Faraja George, State Attorney for the Appellant in her submission submitted that they do not support the sentence as was pronounced by the trial Court; the instant ground of Appeal, where in that regard it is the Appellant or rather the Republic's assertion that: The matter was before the District Court of Ilala where the Appellant was the victim in Criminal Case No. 420/2016. The Court after hearing the prosecution case and the defense case and assessing the evidence adduced before the Court, and after the Hon. Magistrate being satisfied that the Prosecution had proved its case as required (beyond reasonable doubt) convicted the accused person under section 225 of the Penal Code [Cap. 16 R.E. 2002] which states: "Any person who unlawfully does

grievously harm to another is guilty o f an offence and is liable to imprisonment for seven years." Upon conviction, the trial Magistrate sentenced the accused person with the conditional discharge that the Accused should not convict any offence for the period of 12 months and to report before the court on every 22nd day of the month for such period. It is also brought to the knowledge of the court that apart from the above imposed sentence, the victim was awarded a compensation of Tshs. Two Million (Tshs. 2,000,000) from the accused. The Appellant further states in there submission to strongly oppose the sentence as it contravenes the aforementioned section of which the Respondent was charged with and convicted forthwith. It is the Appellant's contention that the Respondent ought to have served a sentence of a period of statutory seven years and not as the Court directed in its sentence. In cementing their ground of appeal, the Appellant further declared to be aware of section 326 (1) (a) and (b) of Criminal Procedure Act [Cap. 20 R.E. 2002], where the Magistrate is vested with powers to grant other sentences upon conviction. And that the vested powers should act solely after considering the nature of the offence and how it was committed. Moreover, it is the Appellant's counsel concern that, it is from the records that the Respondent had an intension of endangering the life

the Appellant by using the sharp object as machete to inflict some serious injuries into the most vulnerable parts of the victim. The Appellant's counsel named the head to be the most vulnerable part of the body to be inflicted with such a serious cut of which could even have caused the victim's death as well stated by the doctor who attended the victim. Through the above narration, it is the Appellant's counsel contention that the Respondent's actions obvious reveals that he had bad intention and that he expected the worse to the victim. In reply Mr. Azizi Counsel for the Respondent averred that, the Appellant is not concerned with the conviction of the Respondent and that it's main concern rests upon the sentence that was imposed to the Respondent which is Conditional Discharge in place of the custodial sentence of seven years as well stated in their ground of appeal. Further, it is their concern that the Appellant's stand is that the imposed sentence contravenes the provision of section 225 of the Penal Code (supra). It is the Respondent's Counsel further averment that there are various forms of sentences that one can obtain in order to be punished, and not necessarily the custodian sentence. The Counsel spelled out that law under section 25 (h) of the Penal Code (supra) provides for various kinds of punishment such as suspended sentences, fines, restitution, probation and

community sentence. It is the assertion of the Respondent's Counsel that the Respondent was sentenced to condition discharge under Probation as per section 3 (1) (a) and (b) of the Probation Offenders Act Cap. 247, which gives power to permit conditional release of offenders. However, Probation is also reflected under section 337 (1), (a) of the Criminal Procedure Act [Cap. 20 R.E. 2002]. It is then from those provisions that with an exclusion of offences punishable by death sentences under the Penal Code or any other law of which an offender is convicted of an offence and the Court has no previous record of previous conviction, the Court may order Conditional Discharge. Moreover, it is the Respondent's submission that in the circumstances at the trial Court, the Respondent was fit to have met the circumstances of the laws mentioned above together with the Criminal Procedure Code (supra) as mentioned by the Appellant and that it served proper for the Respondent to be sentenced by conditional discharge. In determining the appeal at hand, I have to confess that I have carefully gone through the entire trial court proceedings, the impugned Judgment, and the parties' respective submissions. I had no any hard task in reaching the trial Magistrate's decision to convict the Accused the Respondent herein since she accordingly analyzed the evidence that was before the court and came to

her satisfaction which commanded the Respondent's conviction under section 225 of the Penal Code (supra). However, the delinquent with me is on the sentence as well pointed by the Appellant's counsel. To me the conviction and the sentence do not match to serve the meaning of conviction to this matter taking into account the weight of the evidence that was before the trial court. It is as if there is a missing cable between the two of which is the foundation of the appeal before the court. Looking at the Victim's testimony as PW1 of which was well corroborated with the PW3's testimony, the doctor who attended the victim, the victim is said to have suffered severe injuries of which could have^ cost his life if attended late. I wish to quote some of the passages of the PW3's testimony as seen at page 24 of the proceedings as herein below: "..... The patient said that he was injured by another person. We conducted x-ray on head injury it showed that there was skull fracture, and on head there was non displaced fracture disk third o f the radius arna. We checked his general condition he was critical but stable. We conducted surgical debradimand (washing the wound by special fluid normal saline) and stitching on head we dressed normal but on hand we dressed him with volar slab so as to prevent more fracture. We observed the patient to see if there was any danger, we found him normal thus we discharged him and told him to attend the clinic for further follow up. His condition improved in his treatment we gave him antibiotics for prevent o f infection and ant- tetanus fascination. After his full recovery, I filled the PF.

3. The type of injury sustained was grievous harm as it was dangerous for his health; the bleeding would have caused death if he was not attended time/v........" The determinative question however is what was the nature of the assault and the extent of the injuries sustained by the victim. In my considered view, and from the Doctor's testimony, I am of the considered view that the assault which the victim had from the accused was heavy and serious one and fueled with evil mind of causing grievous harm or a worse situation more than that. Under the circumstances the evidence establishes that the victim was seriously assaulted, he had a skull fracture and that he suffered physical and psychological effects. Contemplating at the above testimony, comparing with the sentence that was offered to the Respondent at the trial court and especially after conviction, it suffice to say that the same does not carry the weight of the offence committed. I am of the firm view that when the Legislature decided to offer the term of seven years imprisonment for any person who unlawfully does grievously harm to another, and upon conviction of the same, there was a meaning behind the said punishment and that the same was not for the cosmetic purpose. If that is the case, then the trial Magistrate could have taken the above 8 testimony / evidence seriously and interpret the same into the sentence.

However that was not the case. It has been emphasized by the Court of Appeal in numerous cases that an Appellate Court should not interfere with the discretion exercised by a trial Judge or Magistrate as to sentence except in such cases where it appears that in assessing sentence the Judge or Magistrate has acted upon some wrong principle, or has imposed a sentence which is either patently inadequate or manifestly excessive. On this you may wish to refer to the cases of BERNADETA PAUL VR (1992) TLR 97, RASHID 5. KANIKI V. R (1993) TLR 258, YOHANA BALICHEKO V. R (1994) TLR 5, andMOHAMED RATIBU @ SAID - CRIMINAL APPEAL NO. 11 OF 2004 (Unreported), just to mention a few. Further is the case of YOHANA BALICHEKO VERSUS REPUBLIC (1994) TLR 5 where the Court held that: "....As a general rule the Court will not readily interfere with a sentence imposed by the High Court unless it is satisfied that the sentence was manifestly excessive, or that the sentencing court failed to consider a material circumstance or that it otherwise erred in principle." It is also generally, if not universally, recognized that an accused upon conviction of an offence with which he is charged, before sentencing, qualifies him for the exercise of mercy from the court. The reason being that one of the main objects of punishment is the reformation of the offender as was held in the case of FRANCIS CHILEMA V. R

(1968) HCD NO. 510 which was adopted by the Court of Appeal in the case of BERNADETA cited (Supra). In the instant case, it is common ground that the Appellant is a first offender and that he was duly convicted under section 255 of the Penal Code Cap. 16 [R. E. 2002]. Apart from that, nothing else was pleaded as mitigating factor. Surprisingly, the learned Magistrate put weight on the mitigating factors to reach into a decision of releasing the Respondent as he said: "Sentence: in consideration o f the accused mitigation and the nature o f the offence, I hereby discharge the accused person with condition that he has to commit no offence for a period o f twelve months, and to report before this court on every 22nd days o f the month for such period. ................" 10 However, if the learned Resident Magistrate really considered her conviction as seen in the Judgment, then I fail to understand as to why she failed to give the due weight the accused the punishment he deserved. Actually and unfortunate the trial Magistrate totally ignored the conviction and took the views that the Appellant deserved lenience because he was the first offender. Without considering that mostly every person who comes to court and upon conviction, is a first offender. The question then comes, shall the court under those circumstances release all the accused persons before the court for the

reason that they are the first offenders? The answer to that is NO!, and that the button line is to take into consideration the extent of the offence together with some other mitigating factors apart from being the first offender. In the case of ISABENA LEONEN MACANAS V. REPUBLICCr. Appeal No. 17 o f 2007 (HCT at Dar es Salaam) (Unreported), Makaramba, J. explaining and defining sentencing as a matter of judicially direction, Principles of sentencing, and matters to consider in sentencing aggravating and mitigating factors, held that: "As a matter o f general principle, sentencingwhich could be defined as the judicial determination o f a legal sanction upon 11 a person convicted o f an offence, is a matter o f judicial discretion. The sentencing court, depending on a range o f factors which have to be taken into consideration, such as the gravity o f the offence, the circumstances o f the case and the offender, and aggravating or mitigating factors, has discretion in imposing a sentence, save where there is a statutory mandated minimum sentence. There are therefore no statutory principles or guidelines on sentencingThe sentencing court in exercising its discretion to a large extent relies on the wording o f the penalty provisions." With great respect to the learned Resident Magistrate I am of the view that she was wrong in ignoring the conviction of which is statutory and in

the midst of it consider the mitigating factor of which according to me was insubstantial so to say. As pointed out earlier on, the learned Resident Magistrate did not support the conviction by sentence as she was supposed to. According to the Appellant's mitigating factors as demonstrated above, together with the overall circumstances surrounding this case, I am of the firm opinion that, a sentence of conditional discharge was not fair and enough to reach the ends of justice. 12 From the above explanation, I have found the Appellant's sole ground of Appeal with merits. In the event therefore I allow the Appeal accordingly. Further, I hereby proceed to set aside the trial court's sentence of conditional discharge and compensation of Tshs. 2 Millions and substitute the same with a sentence of three (3) years' imprisonment and compensation of 4 Millions Tshs. to the Victim. It is so ordered. p in h f n f Annpal pynlainprl COURT: Judgment delivered in the presence of Ms. Faraja George, State Attorney for the Appellant, the Respondent in person and Ms. Veronica Bench Clarke in my chamber today 31st March, 2(

JUDGE 31/03/2020 13