Marcos Elias vs Republic (Criminal Appeal No 460 of 2016) [2018] TZCA 549 (6 December 2018)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUSSA, J.A.. MWANGESI. J.A.. And NDIKA, J.A.l CRIMINAL APPEAL NO. 460 OF 2016 MARCO ELIAS .............................................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Mlacha, J.) dated the 31s t day of October, 2016 in Criminal Sessions Case No. 215 of 2014 JUDGMENT OF THE COURT 30th Nov. & 6th Dec. 2018 NDIKA, J.A.: Before the High Court of Tanzania at Mwanza, the appellant, Marco Elias, was convicted of manslaughter contrary to sections 195 and 198 of the Penal Code, Cap. 16 RE 2002 upon his own plea of guilty. It was alleged by the prosecution that the appellant, on 27th December, 2011 at Nyangalamila Village within Geita District in the Region of Geita, unlawfully killed one Marco s/o Lutobeja. He was sentenced to eight years' imprisonment. This is his appeal against the sentence. i

Briefly, the facts that were read out by the prosecution and accepted by the appellant after his plea of guilty was recorded were as follows: on 27th December, 2011 at night the appellant went to a disco party in the company of the deceased and two other people. While there, a brawl erupted between him and the deceased as they tussled over a woman each one of them wanted to dance with. In the course of the fight, the appellant initially hit the deceased with a padlock on his buttocks and then drew a knife with which he stabbed the deceased in his left ribs. The deceased fell down as the appellant fled the scene. The deceased was administered with first aid but he died shortly thereafter. According to the post-mortem examination report (Exhibit P.l) he died due to severe haemorrhage. The appellant was subsequently arrested and interrogated by WP 2278 D/Cpl. Ester. He made a cautioned statement dated 3r d January, 2012 (Exhibit P.2) in which he confessed to killing the deceased unintentionally. He repeated his confession in an extrajudicial statement made on 10th January, 2012 (Exhibit P.3). A sketch of the crime scene drawn by C.8178 Sgt. Julius was admitted as Exhibit P.4. 2

After considering the facts of the case along with the contents of Exhibits P.l - P.4 that the appellant had admitted as correct, the learned trial judge concluded that the appellant's plea of guilty was unequivocal and, accordingly, convicted him of manslaughter. In the sentencing hearing that followed, the prosecution indicated that the appellant was a first offender but urged that a deterrent sentence be imposed on him to put off recurrence of similar killings in the area concerned. In mitigation, Mr. Pauline Michael, learned defence counsel, prayed for a lenient sentence on the grounds that the appellant was a mere first offender; that he readily confessed to the killing and spared the trial court and the parties time and costs; that he had been in remand since 27th December, 2011, meaning that he had been a remandee for four years, ten months and twenty-two days; that he was remorseful and regretted the killing; and finally, that he stabbed the deceased in self-defence as the deceased had overpowered him in the course of their fight. In sentencing the appellant to eight years' imprisonment, the learned trial judge stated that:

"I have considered the submissions of the State Attorney and that of the Defence Counsel. The circumstances call for a heavier punishment. The accused stabbed the deceased with a knife in circumstances which did not call for the use o f such a weapon. He should be punished [as] a lesson to him and other boys who are quick to apply the knife in ordinary quarrels." Feeling aggrieved by the sentence, the appellant filed this appeal on five grounds, which can be condensed into two main complaints: one, that the sentence was excessive having regard to the fact that the appellant was provoked by the deceased; and two, that certain mitigating factors were not duly considered in sentencing such as his antecedents, plea of guilty and remorse for the killing, his apparent youth and that he had dependent parents. Mr. Anthony Nasimire, learned counsel for the appellant, argued the grounds of appeal generally. He faulted the learned trial judge for considering the mitigating circumstances of the appellant generally rather than individually. Having revisited all the mitigating factors raised at the trial, Mr. Nasimire placed particular emphasis on the fact that the appellant was remorseful from the very beginning as he clearly confessed to the

unintentional killing vide the cautioned statement and the extra-judicial statement (Exhibits P.2 and P.3) and then pleaded guilty at the trial. He also recounted that the deceased's act of provocation contributed to his death. Mr. Nasimire relied on a recent decision of the Court in Boniface Yustas v. Republic, Criminal Appeal No. 459 of 2015 (unreported) where reference was made to an earlier decision of the Court in Raphael Peter Mwita v. Republic, Criminal Appeal No. 224 of 2016 (unreported) that disapproves generalized consideration of the mitigating factors. While attributing what he called "excessive sentence" to the trial court's wrong approach in sentencing, he urged us as the first appellate court to intervene and reduce the sentence to an appropriate level. Accordingly, he prayed that the appeal be allowed. Mr. Lameck Merumba and Ms. Lilian Meli, both learned State Attorneys, teamed up to represent the respondent. In his submissions, Mr. Merumba ardently supported the sentence even though he conceded, on the authority of Boniface Yustas (supra) and Raphael Peter Mwita (supra), that the trial court ought to have considered the mitigating factors specifically. He thus urged us as the first appellate court to step into the

shoes of the trial court and arrive at an appropriate sentence in view of the circumstances of the case. It was his submission that the circumstances of the case militate against reduction of the sentence. In this regard, he argued that the killing was unfortunate but brutal; the weapon used was lethal; and that it was wrong in the first place for the appellant to be armed in public place. All these facts constituted aggravating circumstances. He concluded by urging us to dismiss the appeal. Rejoining, Mr. Nasimire emphasized that the law was against generalized treatment of mitigating factors. He then disputed the contention that there were any aggravating circumstances in the case. To him, the use of a knife by the appellant was not in itself an aggravating circumstance. Having heard and considered the learned submissions of the parties on the suitability of the impugned sentence, we find it pertinent, at first, to recall what this Court held in Robert Nicholaus v. Republic, Criminal Appeal No. 195 if 2010 (unreported) on some principles guiding sentencing thus: 'We admit that sentencing is a difficult and controversial area of the law where rights 6

and obligations of the person have to be balanced against the requirements of the society in which the offender lives. There is no shortage o f authorities on sentencing which give guidance to the courts in sentencing, but the first rule of thumb is that sentencing is the domain of the trial court and an appellate court should rarely interfere with the discretion of the trial court in sentencing. The second rule of thumb is that in sentencing there are always aggravating circumstances which may agitate for a stiff sentence, and mitigating factors which call for leniency in sentencing. "[Emphasis added] It is settled that an appellate court will not interfere with the discretion of the trial court in sentencing except in such cases where it appears that in assessing the sentence the trial court acted on a wrong principle, or overlooked some material factors or imposed a sentence which is either patently inadequate or manifestly excessive: see, for instance, R. v. Mohamed Ali Jamal (1948) 15 EACA 126; and James Yoram v. R. (1951) 18 EACA 147. See also Katinda Simbila @ Ng'waninana v. Republic, Criminal Appeal No. 15 of 2008; Willy Walosha v. Republic,

Criminal Appeal No. 7 of 2002; and Edward Mange v. Republic, Criminal Appeal No. 51 of 2015 (all unreported). At this point it is clear that the complaint in the instant case is that the trial court arrived at the impugned sentence on the basis of a generalized consideration of the appellants' antecedents and mitigating factors. Both learned counsel agree that the trial court did not consider the mitigating circumstances explicitly and that, on the authority of Boniface Yustas (supra) and Raphael Peter Mwita (supra), the saidapproach wasimproper. We recall, in particular, that the Court criticized that approach in Raphael Peter Mwita (supra) as follows: " 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 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 first offender as was put by the defence counsel. This was ; in our view, among the 8

important legal mitigation to be considered by the trialjudge.... "[Emphasis added] Nonetheless, while we accept the criticism by both learned counsel of the trial court's approach, we think that even if the learned trial judge had considered the appellant's antecedents and mitigating factors explicitly and in detail, he would not have arrived at a lesser sentence because there were aggravating circumstances that militated against that course. In this regard, we agree with Mr. Merumba that the killing in this case was vicious, that the weapon used was lethal and that the appellant being a reveller at a disco party ought to have not been armed with a knife in the first place. We wish to observe that the trial court did not make any specific reference to the contents of the post-mortem examination report (Exhibit P.l) when assessing sentence. In our opinion, that report ought to have been looked at as it bears out the extent of the appellant's savagery against the deceased. It indicates that the deceased's body had multiple cuts: four deep cuts on the head that fractured the skull and penetrated the brain as well as one cut on the neck deep to the spinal cord. From these deep and deadly cuts, it is reasonable to infer that the appellant applied substantial force against the deceased. Even if he stabbed the deceased in response to 9

the latter's provocation, the force that he used was plainly disproportionate and unwarranted. In the light of the foregoing analysis, we find that the sentence of eight years' imprisonment imposed on the appellant is appropriate; it is his . cross to bear for unlawfully and brutally ending the life of the deceased. Accordingly, this appeal is dismissed in its entirety. DATED at MWANZA this 30th day of December, 2018. K. M. MUSSA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL