william daud mwangwego vs the republic 2023 tzhc 20815 6 september 2023

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 66 OF 2023 (Original Criminal Case No. 201 of 2022 Kinondoni District Court) WILLIAM DAUD MWANGWEGO........................................APPELLANT

VERSUS THE REPUBLIC............................................................. RESPONDENT

JUDGMENT 22/08/2023 to 06/09/2023 E.B. LUVANDA, J William Daud Mwangwego the Appellant herein was arraigned before the trial court for incest by male contrary to section 158(1) of the Penal Code, Cap 16 R. E. 2019 and impregnating a school girl contrary to section 60 A (3) of the Education Act, Cap 353 R. E.

2002. After the victim (PW1) and her biological mother (PW2) had testified in Court on 28/9/2022, on the next session to wit on 13/10/2022 when the Appellant was placed at the dock, he asked to be reminded his charge. After a charge was read over to him, he pleaded guilty in respect of both two counts and admitted all facts narrated in support of the offence of incest by male and i impregnating a school girl, including PF3 and his caution statement which were admitted as exhibit Pl, collectively. On 27/10/2022 the trial court delivered its judgment and convicted the Appellant in respect of both counts of incest by male and impregnating a school girl, and sentenced the Appellant to serve a term of forty- and twenty- years imprisonment, respectively, with an order for a sentence to run consecutively. Aggrieved, the Appellant appealed against both conviction and sentence. In the petition of appeal, the Appellant raised the following grounds: - 1. That, the learned trial magistrate erred in law and fact in convicting the Appellant based on ambiguous and/or doubtful plea of guilty without determining whether or not the appellant was free agent and/or had knowledge on the consequences of his plea of guilty.

2. That, the learned trial magistrate erred in law and fact in convicting the Appellant based on his own plea of guilty without ascertaining the proof of the case against the appellant beyond reasonable doubt as required by Section 110 and 112 of the Evidence Act, (Cap.6 RE 2002) as neither PF3 report, the age of the pregnant and the DNA test was tendered and/or proved to link the Appellant as charged. 2 3. That, the learned trial magistrate erred in law and fact in convicting the Appellant when there was no sufficient cause of delaying to pass the sentence on 13/10/2022 until 27/10/2022 the omission which cast doubt on the alleged plea of guilty to be voluntarily given.

4. That, the learned trial magistrate erred in law and fact in convicting the Appellant based on an equivocal plea of guilty as the said plea was very general and not specific to the victim by her name, age and scene of crime.

5. That, the learned trial magistrate erred in law and fact in imposing a manifest excessive sentence on the Appellant contrary to the dictate of law.

6. That, the learned trial magistrate erred in law and fact in convicting the Appellant for the 2nd count when there was no documentary exhibit tendered in Court to prove that the victim was a school girl. Ground number one, the Appellant argued that he was convicted based on ambiguous and doubtful plea of guilty, without determining whether he was a free agent and knowledge of consequence of plea of guilty. In reply to the Appellant appeal, the learned State Attorney submitted that it is a general rule that the accused person who enter a plea of guilty of such 3 plea, no right of appeal lies against conviction, citing section 360(1) of the Criminal Procedure Act, Cap 20 RE.

2022. She submitted that this general rule has exception in which the accused person may challenge the conviction as well, citing Laurence Mpinga vs. Republic, (1983) TLR 166 She submitted that the Appellant had asked to be reminded a charge, consequently he entered a plea of guilty on both counts. She submitted that there is no ambiguity with regard to the plea entered by the Appellant as he admitted the substance of the charge and facts which constitute the ingredients of the offence. She submitted that the plea was therefore unequivocal. She cited the case of Philipo Faustine @ Chitembele vs. Republic, Criminal Appeal No. 666/2020 CAT; Hassan Bundala @ Swaga vs. Republic, Criminal Appeal No. 386/2015, CAT. It is true that the general rule is that no appeal can lie against conviction on plea of guilty, save for the gravity and legality of sentence imposed therefrom. Section 360 (1) Cap 20 (supra) provide, I quote, "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence". 4 Also, Lawence Mpinga (supra) allow appeal against conviction in the circumstances where the plea was equivocal, being the second exception to the above general. For bravity, I reproduce a holding therein by Samatta, J as he then was, 1. " That, even taking into

consideration the admitted facts, his piea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in law in treating it as piea ofguilty; 2. That he pleaded guilty as a result of mistaken or misapprehension; 3. That the charge laid at his door disclosed no offence known to law; and 4. That upon the admitted facts he could not in law have been convicted of the offence charged" Herein, even if I open a window under Mpinga (supra), still the Appellant cannot pass the test prescribed therein. This is because it's the Appellant who made an invitation to be reminded a charge. After a charge was read over to him, he entered a plead of guilty in a manner under which for all purpose and intend, portray was unequivocal; in a sense that for count 5 number one of incest by male, the Appellant pleaded in the following words "It is true I committed the offence of sexual intercourse with my daughter". On count number two of impregnating a school girl, the Appellant pleaded in the following wording "It is true I impregnated the said student. Thereafter the learned prosecuting officer read over facts constituting essential elements including all ingredients for the offences levelled to the Appellant, where the Appellant admitted its truthful on its generality and totality. Above all, the prosecuting officer produced for tendering a PF3 and the Appellants caution

statement, which altogether with admitted without any reservation and consequently admitted as exhibit Pl collectively as afforesaid. Therefore, the question of ambiguous, doubtful plea, cannot be entertained at this stage. When the Appellant was invited to mitigate, he pleaded that he did not want to waste Court time, because he was pushed to do the acts because of poverty situation as repent Therefore, it cannot be said that the Appellant had no knowledge or else unware of consequences of his plea. It is to be noted that the Appellant had asked to plead after PW1 (victim) and her biological mother (PW2) has testified as aforesaid. As such it is taken 6 that the Appellant was a free agent who pleaded at his own volition. In Hassan Bundala (supra), it was held I quote, "...the Appellant had obviously no good cause to raise the matter belatedly, it flies in the face of the record of appeal, which leave no doubts that the Appellant understood not just the charge that was read over and explained to him but the proceedings that followed hence unequivocal plea ofguilty". This adumbration take into board ground number four as well. Ground number two and six, the Appellant challenged a plea of guilty that it was entered without documentary evidence. In reply the learned State Attorney submitted that the Appellant pleaded guilty and prosecution tendered PF3 and a caution statement as

exhibit, arguing that although it is not a legal requirement for tendering them, citing Joel Mwangambako vs. Republic, Criminal Appeal No. 516/2017. To my view, this complaint is without substance. The records speak louder that after pleading to the offence and admission to the facts of the case, the prosecuting officer tendered a PF3 and caution statement of the Appellant, which were all admitted by the Appellant without any objection and the same 7 formed part of admitted facts and marked exhibit Pl collectively. As alluded by the learned State Attorney, all these were done as a matter of best practice but in actual sense is not a legal requirement. In Mwangambako (supra), it was held, I quote, "Tendering and admission of an object as an exhibit after an accused person has pleaded to the charged offence is not a legal requirement though it is desirable to do so." Ground number three, the Appellant complained over delay in convicting the Appellant after pleading to the offence. The learned State Attorney, in reply submitted that there was no delay as the court convicted the accused person on 13/10/2022 and scheduled the next date for sentence on 27/10/2022. She submitted that the law under section 311(1) Cap 20 (supra) provides a period for delivery of judgment not exceeding 90 days, arguing the 14 days were still within the spirit of the above provision. The records indicate

that after the Appellant had pleaded guilty, the trial court reserved the matter for composing a formal judgment which was delivered fourteen days thereafter to wit on 27/10/2022. Section 228(2) Cap 20 (supra) provide, I quote, 8 "If the accused admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary". Therefore, the cause taken by the trial court adjourning the matter then reserving the craft of the formal judgment after plea and admission by the Appellant was an invention of his own not known to the law and procedure. Of course, it was unnecessary to craft a judgment on a plea of guilty, indeed after reserving it for a good fourteen days. In view of this conduct, it is when a complaint come in. This is because what was done by the trial court was contrary to the elementary procedure and practice that after the accused plead guilty and, in the circumstance, where the prosecuting officer is cooperative and smart to instantly read the facts and tender all exhibits on the spot, it is was excepted the trial court to proceed to convict the Appellant and pass sentence thereon without further delayment. Arguably the law provides for a grace period of ninety days for composing and

delivery of judgment. Equally, it is true that 14 days are fairly reasonable and within the grace period of 90 days. However, all that was unnecessary. Be as it may 9 there was no prejudice which was occasioned on part of the Appellant. Therefore, the situation is salvaged in that way. Ground number five, the Appellant complained over excessive sentence. The learned State Attorney in reply submitted that the sentence of forty years for incest by male was not excessive as the law in section 158 (1) Cap 16 (supra) stipulated that the sentence should not be less than twenty (sic, thirty) years imprisonment, arguing that it was still within the ambit of the provided sentence. On my view, the sentence of forty years is on a higher side. This is because on mitigating factors, the Appellant pleaded for lesser or lenient sentence, for reason that he saved court time, also pleaded poverty situation and use of herbal to have pushed him to those delvish acts. Generally, the Appellant showed remorse and repent. Sentencing him to forty years cannot save any purpose. It is the law of penology that the sentence or penal measures should focus on rehabilitive approach as opposed to punitive or putting as under, and in particular in a situation where the offender show remorse over the acts committed. io Regarding the second count of impregnating a school girl, the learned State submitted that

the Appellant was sentenced to twenty years arguing the sentence is not excessive as the said section imposes the punishment of not more than twenty years. On my part, I have no problem with the manner the trial court exercised it is discretion in imposing the twenty years, because is on the minimum threshold for that offence under the penal statute or provision. For a sentence of forty years imposed for count number one cannot let to stand, being too excessive, considering a fact that the prosecuting officer stated that the Appellant was the first offender. I therefore invoke the provision of section 366 (1) (b) Cap 20 (supra), alter and reduce the sentence of forty years to a less sentence of twenty years imprisonment. Also, I set aside an order for sentence to run consecutively, in lieu thereof I substitute with an order that a sentence of thirty (30) years for the offence of incest by male contrary to section 158(1) of Cap 16 (supra) being first count and a sentence of twenty (20) years for the offence of impregnating a school girl contrary to section 60 A (3) Cap 353 (supra) shall run ii concurrently counting from the date the Appellant was convicted to wit will run from 27/10/2022. The appeal is partly allowed to the extent demonstrated above. E.B. LUVAN DA

JUDGE 06/09/2023 Judgment delivered in the presence of Ms. Rose Makupa learned state Attorney for Respondent and the Appellant E.Bf LUVANDA 6/09/2023 12