Daud Manyerere @ Makobela vs Republic (Criminal Appeal No. 463 of 2016) [2018] TZCA 803 (6 December 2018)

.rrf.( '. I ,, j \ i • IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUSSA, J.A., MWANGESI, J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 463 OF 2016 DAUD MANYERERE @ MAKOBELA ___________ '.'" __________ APPELLANT VERSUS THE REPUBLIC ---------------------------------------- RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Mlacha, J.) dated the 21 st day of October, 2016 in Criminal Sessions Case No. 214 of 2014 JUDGMENT OF THE COURT 30 th Nov. & 7 th Dec. 2018 MWANGESI, J.A.: The app~llant herein was charged in the High Court of Tanzania at Mwanza with the offence of murder contrary to the provisions of sections 196 and 197 of the Penal Code Cap. 16 R.E. 2002 (the Code). According to the information lodged in Court, on the 10 th day of September, 2013 at 1 , .. about 16:00 Hours at Bugogo village within the District and Region of Geita, the appellant murdered one Tambala s/o Lukumburwa. When the case was called on for. preliminary hearing, the appellant through his learned counsel Mr. Pauline Michael, offered a plea of guilty to a lesser offence of manslaughter contrary to sections 195 and 198 of the Code, an offer which was not resisted by the prosecution. And, subsequent to the unequivocal plea of guilty by the appellant to the fresh charge of manslaughter as well as the facts of the case which was read over to him by the learned State Attorney, the learned trial Judge convicted the appellant on his own plea of guilty. He was ultimately sentenced to imprisonment for a term of ten years, which is the subject of the appeal before the Court. The appellant has thus come to the Court, to challenge the sentence arguing that it was manifestly excessive. Before moving to consider the merits of the appeal, we hereby retell the brief facts of the case. They were to the effect that, the appellant and the deceased were living in the same village of Bugogo i_n Geita District. On the 10 th day of September, 2013 at about 16:00 Hours, the deceased and his mother were drinking local brew commonly known as "moshi" in a pombe shop owned by one Elizabeth Manyara. After the deceased had got 2 drunk, he started to cause some disturbances to other customers by uttering unpleasant words to them. As a result, the chairman of the village ordered the appellant who happened to be a commander of local vigilante group known as sungusungu, to remove the deceased from the pombe shop premises. The attempt by the appellant to execute the order of the village chairman was resisted by the deceased. In the course of forcing the . deceased to leave the area, the appellant seriously beat the deceased with a stick on different parts of his body the head inclusive. Ultimately, the deceased left the area complaining of serious pains. On the following day, it was reported that the deceased was no more. And, according to the report after post-mortem examination, the cause of death to the deceased was due to shock in the nervous system resulting from sharp pains. On the basis of the foregoing facts which . as earlier indicated, were wholly admitted by the appellant as well as the post-mortem examination report and the sketch map of the scene of the crime, both of which were admitted as exhibits Pl and P2 respectively, the learned trial Judge, entered conviction to the appellant on 'the charged offence and imposed the impugned sentence. 3 According to the· grounds of appeal which were lodged by the appellant's counsel on the 16 th November, 2018, which are the ones which he adopted during the hearing of the appeal after. abandoning those which had been lodged earlier by the appellant, the appeal is premised on three grounds namely: First, that the sentence imposed by the trial Court was manifestly excessive regard being to the circumstances in which the offence was committed. Second, that the trial Court erred in its decision by not considering the mitigating factors which were advanced on behalf of the appellant by his learned counsel. Third, that the trial Court erred in its decision by taking into consideration extraneous matters which were not contained in the facts on record. On the date when the appeal was called on for hearing, the appellant enjoyed the services of Mr. Emanuel Sayi, learned counsel whereas, the respondent/Republic was represented by Ms Angelina Nchalla learned 4 Senior State Attorney, who was assiste<;J by Mr. Moris Mtoi, also learned State Attorney. In amplifying the grounds of appeal before us, Mr. Sayi, abandoned the first ground of appeal and proceeded to argue the remaining two. To elaborate the second ground of appeal, the learned counsel submitted that, while assessing the appropriate sentence for the appellant after he had pleaded guilty, the learned trial Judge did not consider the mitigating factors which had been advanced by his learned counsel. He argued that the mitigating factors by the appellant as reflected at pages 4 and 5 of the record of appeal, were about four. It was stated in the mitigation that the appellant was a first offender, he had pleaded guilty to the charge, which is a sign of his remorse and that, he had been in remand for a period of three years and one month before the case was called on for preliminary hearing. However, the learned counsel went on to submit, there was no indication by the learned trial Judge to illustrate that, he ever considered any of the mitigating factors presented on behalf of the appellant. He just stated in a blanket form at page 7 of the record of appeal that, he had considered the submission made by the learned counsel for the defence. 5 To fortify his argument, the learned counsel referred us to the decisions in Swalehe Ndungajilungu Vs Republic [2005] TLR 90, as well as Charles Mashimba Vs Republic [2005] TLR 94. The challenge of the learned counsel for the appellant to the learned trial Judge in the third ground, was founded on the contention that, he considered extraneous matters in assessing the appropriate sentence for the appellant. His contention basically focused on the statement of the trial Judge that, "the accused used excessive force to the deceased", while such contention is nowhere to be traced in the facts of the case as presented by the learned State Attorney in Court. Basing on the grounds adumbrated above, Mr. Sayi submitted that there was justification for this Court to find that, the failure by the learned trial Judge to consider the mitigating factors which were presented on behalf of the appellant, and instead thereof considering extraneous matters, resulted to imposing excessive sentence to the appellant. In that regard, he invited us to interfere with the sentence of the trial Court by reducing it to a reasonable one upon considering the mitigating factors which were advanced on behalf of the appellant. 6 ' In rebuttal to what was submitted by her learned friend in the second ground of appeal, Ms Nchalla, resisted the appeal by arguing that the sentence which was imposed to the appellant by the learned trial Judge, was fair and justifiable regard being to. the nature and the circumstances under which it was committed. While the learned Senior State Attorney was at one with her learned friend that, in failing to specifically show that he considered the mitigating factors of the appellant had to be presumed that the learned trial Judge, did absolutely not consider the mitigating factors, such fact notwithstanding, the sentence imposed was fair. This being the first appellate Court, the learned Senior State Attorney urged us to step into the shoes of the trial Court, and confirm the sentence which was imposed. With regard to the third ground of appeal in which, it was complained by the appellant that the trial Judge considered extraneous matters while sentencing the appellant, the learned Senior State Attorney argued that, there were no such extraneous matters considered by the Judge. The word "excessive force" used by the Judge in his sentence, was implied from the way in which the appellant occasioned death to the deceased. To that end, 7 Ms Nchalla implored us to find no merit in the appeal and as such, it be dismissed in its entirety. The first issue which arises from the third ground of appeal above, is whether in assessing the sentence for the appellant the learned trial Judge considered extraneous matters. This ground was pegged on the statement made by the Judge that, the appellant used excessive force. Having closely considered the facts of the case, we are convinced to buy the assertion by the learned Senior State Attorney that, the Judge was justified to imply so. This was so from the fact that the appellant had just been assigned by the chairman to remove the deceased from the pombe shop premises. However, in executing the order, the appellant continuously beat the deceased on different parts of the body including delicate parts like the head and chest, culminating to his dea.th. Under the circumstance, there was nothing to fault the trial Judge in stating that, excessive force was used by the appellant. We therefore dismiss the third ground of appeal. As regards the second ground of appeal, the issue is whether the sentence of imprisonment for a term of ten years which was imposed to the appellant after he pleaded guilty to the offence of manslaughter, was manifestly excessive. To begin with, as it was agreed upon by the learned 8 counsel for both sides, the learned trial Judge omitted to consider the mitigating factors of the appellant while imposing the sentence. To appreciate the situation, we take the liberty to reproduce the mitigating factors of the appellant as reflected at pages 4 and 5 of the record of appeal, where Mr.· Michael, learned defence counsel, was recorded to state that: ''I pray for lenience to the accused on these reasons: 1. The accused is a first offender. The accused has confessed and have (sic) not disturbed the Col/rt in terms of time and costs. 2. The accused has been in remand for 3 years/ one month and 9 days. The period has gave (sic) a lesson. The accused had no grudges with the deceased. He was Just assigned the Job by his boss/ the chairman. The deceased resisted. He was forced to beat him slightly. The aim was not to kill him. He died on a bad luck. 3. The accused has a wife and three children in school. They all depend on him. " On the other hand, in sentencing the appellant, the learned trial Judge put his words as follows: 9 '• ''I have considered the submission of the State Attorney and that of the defence counsel. Together with the good submission of the defence counsel, but I think the circumstance call for a heavier punishment. The accused used excessive force to the deceased. There was no base for beating the deceased with sticks in various parts of his body. I will impose a punishment which can be a lesson to other sungusungu commanders. I sentence the accused to suffer ten years in Jail. " In the light of what has been highlighted .above, we are inclined to join hands with the learned counsel for both sides that indeed, the learned trial Judge did not consider the mitigating factors of the appellant. The generalized statement by the Judge that, "I have considered the submission of the learned counsel for the accused", was in our view not enough. The law required him to consider the mitigating factors of the appellant on one by one basis. See for instance: Bernadeta Paul Vs Republic [1992] TLR 97, Mussa Ally Yusufu Vs Republic, Criminal Appeal No. 72 of 2006 and Raphael Peter Mwita Vs Republic, Criminal Appeal No. 224 of 2016 (both unreported). 10 It was categorically stated by the Court in Raphael Peter Mwita Vs Republic (supra) that: "Clearly, looking at the above quotation the trial Judge did not mention any antecedents or the mitigating factors which he said to have considered. He Just generalized that he had considered them. As it was rightly pointed out by both learned counsel, this was not a proper consideration of the mitigating factors. In both antecedents and mitigation/ for example/ it was stated that the appellant had no previous record of conviction or rather he was a first offender as was put by the learned defence counsel. This was in our view, among the important legal mitigation to be considered by the trial Judge ... " Nonetheless, despite the failure by the learned trial Judge to consider the mitigating factors of the appellant, in the view of the learned Senior State Attorney, the same did not diminish the appropriateness of the sentence of ten years' imprisonment, which was imposed to the appellant by the trial Judge. In that regard, this being the first appellate Court, we were invited by Ms Nchalla, to step into the shoes of the trial Court, consider the mitigating factors which were presented on behalf of the 11 , .. appellant, and confirm the sentence which was fairly imposed to the appellant by the trial Judge. Principally, in the administration of criminal justice, sentencing is a domain of the trial court which however, is subjected to the overriding principle that, it has to exercise such powers judicially. In a number of decisions, the Court has named situations where an appellate court can interfere with the sentence imposed by the trial court. See: Swalehe Ndugajilungu Vs Republic (supra), Samwel Kijengwa @ Vose Vs Republic, Criminal Appeal No. 208 of 2005, Nyanzala Madaha Vs Republic, Criminal Appeal No. 135 of 2005 and Abdallah Abdallah Njugu Vs Republic, Criminal Appeal No. 495 of 2007 (all unreported). Some basic factors which can call for interference of the appellate Court with the sentence imposed by the trial court, were listed in the case of Abdallah Abdallah Njugu Vs Republic (supra), they include: 1. Where the sentence is manifestly excessive or manifestly inadequate. 2. If the sentencing was based on a wrong principle. 12 , . .. 3. Where the sentencing Judge/magistrate overlooked a material factor. 4. In a situation where the sentence was based on irrelevant considerations. 5. Where the sentence is plainly illegal. 6. Where the period which was spent by the appellant in remand was not considered. With the above named factors in ·mind, and after having considered the mitigating factors which were raised on the .part of the appellant as named above that, the appellant was a first offender, had readily confessed to the charged offence, and that he had been in remand for three years, and the antecedents which were presented by the learned State Attorney that, the appellant was barbaric and abused his authority in that, he ought to have sought the assistance of other people in assisting . \ him to perform the task wl:lich he had been asked by his boss, we think the necessity to interfere wit;h the sentence that was imposed by the trial • -- .. e' Judge does not arise. We are settled in our mind that, even though the learned trial Judge did fail to consider the mitigating factors of the 13 appellant, the sentence which he imposed of going to jail for a period of ten years was fair. To that end, we accordingly dismiss the appeal. Order accordingly. DATED at MWANZA this 6 th day of December, 2018. K. M. MUSSA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true cop • *•• ·b~•~,,, E. SI ~ DEPUTY STRAR .~ i COURT PPEAL 14