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IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA : {CORAM: OTHMAN, C.J., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 293 OF 2007 WILSON THOMAS ........................................................APPELLANT

VERSUS THE REPUBLIC ..................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Munuo,; J.) th dated 24 day of October, 2000 in Criminal Appeal ,No. 56 of 1997

JUDGMENT OF THE COURT ! 21 st February, &21 st September, 2011 OTHMAN, C.J.: On his own plea of guilty to the offence of defilement of a girl under fourteen years of age c/s 136 (1) of the Penal Code, Cap 16, Re.2002 the appellant, Wilson Thomas was convicted and sentenced to a term of twenty years imprisonment by the ~ai District Court. On first appeal, the ' High Court (Munuo, J. as she then was), found no fault with his conviction, which it affirmed. However, it enhanced his sentence to a term of life imprisonment under section 131(3) of the Penal Code as amended by the Sexual Offences (Special Provisions) Act, No.4 of 1998. Aggrieved, he instituted this appeal on 27.07.2010. At the hearing of the appeal on 21.02.2011, the Appellant was unrepresented. The Republic, which resisted the appeal was represented by Ms. Verital Mlay, learned Senior State Attorney. In a nutshell, the facts of the case are these. The appellant was charged on 22.11.1996 with the defilement of Joyce d/o Godfrey, a girl aged seven years, which had occurred on 14.11.1996. The medical examination revealed that she had bruises on her vulva and a completely ruptured hymen. They all resided in Olkolilie village. On 20.12.1996, the appellant entered a plea of guilty to the offence before the learned District Magistrate. Hence his conviction and sentence. Although the petition of appeal contains three grounds

of appeal, in our respectful view ground one of the appeal is fully sufficient to determine this appeal. The appellant's principal complaint therein is that the learned Judge grossly misdirected herself in enhancing the sentence from twenty 2 years imprisonment to life imprisonmene;-under section 131(3} of the Penal- -- Code, as amended by the Sexual Offences (Special Provisions) Act while the offence was committed on 14.1L1996, before it came into operation. He urged that, he had been wrongly sentenced under a retrospective legislation resulting in a miscarriage o~ justice. On her part, Ms. Mlay forcefully submitted that, much as the learned Judge had erred by invoking section :131(3) of the Penal Code to enhance the sentence imposed by the District Court from twenty years I I imprisonment to life imprisonment, which could not have been applied retrospectively, no prejudice had been caused. The offence that the appellant had pleaded guilty to, carried a sentence of life imprisonment under section 136(1) even before the coming into operation of section 131 (3) of the Penal Code as amended by the Sexual Offences (Special i Provisions) Act. She maintained that the final effect all of this was that, the High Court had correctly enhanced , the sentence. · It is common ground that the offence was committed on 14.11.1996. The Sexual Offences- (Special Pro~isions) Act came- into

operation on-. 1.07.1998. 3 Befo(e -its repeal therein;-section:--:136(1} of the- Penal Code-uRder-- -- --,-- I which the appellant was properly charged provided: "136(1) Any person wh_o carnally knows any girl · under the age of fourte~n years is guilty of a felony and is liable to imprisonmenf for life, with or without corporal punishment." (Emphasis added). The prime question for determination by us is whether or not the appellant was properly and lawfully sentenced to a term of twenty years imprisonment by the trial court, and in turn whether or not the High Court i was entitled in law to enhance the sentence to a term of life imprisonment. First, going by the terms of section 136(1) of the Penal Code, in our ~ respectful view, the trial court was entitled to impose a term of twenty years imprisonment rather than that of life imprisonment provided for therein. Under section 136(1), it had ,a discretion to impose a sentence of I imprisonment of any term up to that of life imprisonment. With respect, ------·-~---~ I ·-·----------- - -------- - --·-- Contrary to what was argued by. Ms; Mlay, the sentence of life imprisonment was not mandatory under section 136(1). Upon his 4 ... - . convictioifoy the trial ·court for defileni-eht-or-a ·grri-unaer foffrteen years of ---- · age, the appellant was liable to imprisonment for life. In Opuya v Uganda [1967] E.A.L.R 752 at 754, the

erstwhile Court - . of Appeal for East Africa in considering the word "liable" had this to say: ''It seems to us beyond argument,. that the words ''shall be liable to" do not in clear ordinary meaning require the imposition of the stated penalty but merely expresses the stated . penalty which may be imposed at the discretion of the Courts. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed the Court might not see fit to impose it '' When the whole record is scrutinized, m our respectful view the learned District Magistrate after having considered mitigating circumstances advanced by the appellant and cognisant of the prevalence of that offence in the area, exercised his discretion and correctly imposed a sentence of twenty years imprisonment; 5 I I , I Second, with respect, it was a gfoss misdirecti6n-l:il the High· Court· I to have invoked section 131(3) of thJ Penal Code, as amended by the Sexual Offences (Special Provisions) kct, clearly not applicable as the I offence was committed on 14.11.1996, before that Act came into I - operation. In other words, it could not have be~.n retrospectively applied. 1 Moreover, the High Court could notl have enhanced it to that of life I imprisonment under section 136(1) a~ it was not a mandatory sentence I therein nor was there any appeal by ithe Republic before the High

Court challenging the sentence of twenty years I imprisonment imposed by . the j · District Court as being manifestly inadJquate. I I Third, with greater respect, it Would appear to us bearing in mind . I the sentencing issue that divides th$ parties and having scrutinized the I original record themselves that both/ the trial court and the High Court completely omitted to direct themsdlves on section 170(2)(a)(ii) of the I I Criminal Procedure Act, No 9 of 1985/governing sentencing by subordinate courts. It provides: I I I · - "170(r) A subordinate court_, may, in the cases in which- the sentences are authorizJd by law pass the following I sentences- / I 6 l - -- -- (a}--- -imprisonment-for a term -not exceeding ' I five years, saye that where a court ; ) I convicts a person I for scheduled offence, it may, if such sentence authorized by law, pass a. se~tence of imprisonment for such offence for a term not exceeding eight years; (b) (c) (2) Notwistandin:g the provisions of subsection(l)' (a) a sentencb of imprisonment 1: (i) for a scheduled offence, which exceeds the' minimum term of 1' imprisonment prescribed in respect of it ' by the minimum sentences Act, 1972; (ii) for any : other I offence, which exceeds twelve months; I (b) (c) shall not be ' I Cc\rried into effect, I executed or levied until the record of I the case, or~ certified copy of it, has I been transmitted to

the High Court I and the sentence or order has been J I confirmed by,ia Judge I save that this, section shall not apply in - --·---- --- - -- ~- L ·- - respect of any sentence passed by a Senior I Resident Mag!strate of any grade or I rank. "(Emphasi::S added) I 7 The Concise Oxford Dictionary, 1964 Ed. defines the phrase "carry into effect" thus: " conduct off to prison. The term "levy" in the Chambers Twentieth Century Dictionary, 1973 Ed. is said to mean "to carry into effect". .. . Bound by section 170(2)(a)(ii), and the proviso thereto, the trial court ought to have sought confirmation of the sentence it had passed from a Judge of the High Court. This it neither did, nor did a Judge of the High Court confirm the twenty years sentence imposed. There is also nothing in the record to satisfy us that the learned trial Magistrate was a Senior Resident Magistrate of any grade or rank for the proviso to section 170(2) to come into play. The result of all this in that, from his conviction and sentence on 20.12.1996 up to now, a period of over fourteen years and four months, the appellant has been effectively carrying out and executing an unconfirmed and unlawful sentence. That could not but have occasioned a very serious miscarriage of justice. As such, section 388(1) of the Criminal Procedure Act cannot salvage the patent illegally and ~he resulting gco~s injustice. 8 --- .- -

·---- ·---~ - By the provision to section 170(2)(a)(ii), the sentence should not have been carried into effect, executed or carried out until it had been confirmed by a Judge of the High Court. This it was not. All considered, there is merit in this ground of appeal, which we uphold. Troubled by the manifest injustice arising, and the record before us, the adjoining question we have anxious ly asked ourselves is whether we 1 should involve section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E 2002 and exercise our revisional jurisdiction by doing what the High Court had omitted to do in confirming, fourteen years and four months later, the sentence passed by the District Court. Given that the appellant has unlawfully carried out a term of imprisonment of over fourteen years and four months; would possibly not be legally eligible to the benefit of a remission of one-third of the sentence during this period under section 49(1) of the Prisons Act, Cap. 58 R.E. 2002 and the complete failure of justice occasioned, we are reluctant to proceed that way. On the contrary, we are compelled in these exce-ptional circumstances, tcY exercrse it as we- - hereby do, to remedy a colossal failure of justice .. By calculation, had the sentence imposed been effectively carried out as required by law and the 9 ~ I .... -- - ------···--r- -- _·-· ·- . -- ---- - -~ --- - -·----------------

- probable benefit of a remission counted, to date it would have been taken I that had served a term of 18 years f and 11 months imprisonment. Considering the above, together with the ~erious injustice occasioned, we I I ' Take the whole period the appellant ~as been in, prison, a sufficient l substitute to the sentence imposed by ithe trial court, to result into his ,I immediate release from prison, unless He is otherwise held on any other ,I lawful cause. In the result and the foregoing re~sons, we quash the judgment of ' the High Court and set aside the sentente imposed. The appeal is hereby allowed. DATED at ARUSHA this 2ih dat of May, 2011. ' I ' M.C. OTHMAN

CHIEF JUSTICE N.P. KIMARO

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JUSTICE OF APPEAL ' M.S. MB~ROUK I JUSTICE OF. APPEAL 11 / I certify that this is a true copy of the original. I · · · ·-- -f~v. ~MKwrzu· -

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DEPUTY REGISTRAR I COURT OF. APPEAL

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