Juliana Mocha vs Repubic (Criminal Appeal No. 364 of 2013) [2014] TZCA 2200 (19 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: RUTAKANGWA. J.A.. BWANA. J.A.. and MANDIA. J.A.) CRIMINAL APPEAL NO. 364 OF 2013 JULIANA MOCHA.................................................................APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Mwambeaele, J.l dated the 22n d day of October, 2013 in Criminal Sessions No. 17 of 2013 JUDGMENT OF THE COURT 14th & 19th May, 2014 BWANA. J.A.: The appellant, Juliana Mocha, was charged with and convicted of the offence of Manslaughter contrary to section 195 of the Penal Code, Cap. 16. She pleaded guilty to the offence and was sentenced by the High Court at Sumbawanga to ten (10) years imprisonment. She has now appealed to this Court against the sentence, claiming that it is excessive, given the circumstances of the case. Before us she was represented by Mr. Mika Mbise, learned counsel

while Ms. Scholastica Lugongo, learned State Attorney, appeared for the respondent Republic. The facts of this case are as follows. The appellant and the deceased were wife and husband. They had four issues of their marriage. The appellant used to work as a labourer and earn some money for the upkeep of the family. On 29th December, 2012, the appellant went to work so that she could earn some money and spend it on milling maize and get flour for family use. Around noon when she returned home she found the maize she had intended to take to the grinding machine, was not there. Likewise, her husband, the deceased was not there. She suspected he could be the one who took the maize, went to sell it so that he gets money to buy local brew. She traced and found him drinking some local brew at a "pombe" shop of one Jofrey Mtaita. She inquired about the maize but the deceased denied any knowledge of its whereabouts. At around 20.00hrs the deceased returned home and picked up a quarrel with the appellant as to why she had followed him and asked about the missing maize. According to the deceased, that was a sign of disrespect to him and a fight ensued between the two. The appellant called for help and some neighbours came up and helped to stop the fight.

Moments after they had left, another fight ensued with the deceased slapping the appellant. In retaliation, she took a stool, commonly known as "kigoda", hit with it the deceased on his head thereby inflicting a serious injury. That led to the deceased to fall down and a lot of blood oozing from the said injured part. Seeing what had happened, the appellant got frightened and called for help. Neighbours showed up once again and suggested that he be taken to hospital but the deceased refused. Given the seriousness of the wound, the following day, the said neighbours managed to convince the deceased to be taken to hospital. He was then rushed to a nearby Miangalua dispensary where he died moments later. The incident was reported to the police and the appellant was arrested. An autopsy carried over the body, established that the cause of death was due to severe haemorrhage. In her mitigation the appellant raised the following points and requested the court to consider them in its sentence. She therefore, prayed for lenience: • That she was a first offender; that the deceased was the cause of his death by starting a fight.

• That the deceased catapulted his death by his refusal to be taken to hospital the very day of the injury. • That being a mother of four children and after the death of their father, the said children will miss parental care if the appellant was given a severe prison sentence. • That by the time the case came up for hearing before the High Court, she had already been under custody for about ten months. In meting out the sentence, the trial judge is on record as having taken into consideration the mitigation by the appellant. He made particular reference to the appellant being a first offender; she readily pleaded guilty to the killing of her husband; she had been in custody for a period of ten months and had four children to take care of. All considered, the trial Judge still meted out the sentence of ten years imprisonment. The appellant's advocate considers that sentence to be harsh in the circumstances of this case, hence this appeal against sentence. Sentencing, we must observe at this stage, is a balancing act. It is not mechanical particularly with regard to those offences which are not governed by the mandatory minimum provisions of the law. The sentencing court therefore, takes into consideration all factors relevant to the case. On one side it should

consider the prosecution views on the case before the court. Views such as the seriousness of the offence; the prevalence of similar offences; societal feelings on the kind of crimes, ejusdem generis. On the other side, before sentencing the convict, the court must consider his/her mitigation including particular circumstances that led to commission of the crime. We are aware, as was stated in the case of Musa Ally Yusufu v. Republic, Criminal appeal No. 72 of 2006 (unreported), that the guiding principle is that an appellate court must not interfere with a sentence which has been assessed by a trial court unless the said sentence has glaring irregularities. Those irregularities include, but not restricted to:- • If the sentence is illegal. • If the sentence was imposed following a wrong principle. • If the sentencing court failed to take into account important mitigation factors. • If the sentence is excessively high or low given the circumstances of each case and as the law governing a given offence provides. In the circumstances of this case, the following salient features are not controverted. • That it is the deceased who started the fight against his wife.

• That after being injured the deceased resisted to be taken to hospital for immediate medical attention until the following day when he had already lost a lot of blood. • That in so far as the appellant is concerned, the appellant:

• Pleaded guilty to the offence thus as stated in John Mbua v. Republic, Criminal appeal No. 257 of 2007: "It is generally if not universally recognized that an accused person who pleads guilty to an offence with which he is charged qualifies for the exercise of mercy from the court."(Emphasis provided). ,The appellant is a first offender and did show contrition for what she did to her husband.
• The appellant was the one who supported the family by working as a labourer.
• With the husband dead and the appellant in jail, the welfare of the four children to the marriage is at stake. All the above considered, we observe that the trial judge ought to have borne in mind as well and given due consideration to the important mitigation by the

appellant and imposed a sentence commensurate with the facts before him. It is against that background and for those reasons stated above, we agree with both Ms. Scholastica Lugongo, learned State Attorney and Mr. Mika Mbise, learned advocate for the appellant, that the sentence of ten years imprisonment imposed by the trial court was manifestly excessive in the circumstances of this case. Accordingly, we reduce the same to one which will result to the immediate release of the appellant from prison, unless she is otherwise held on another lawful cause. DATED at MBEYA the 15th day of May, 2014. E.M.K.RUTAKANGWA JUSTICE OF APPEAL SJ. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. F.J. Kabwe DEPUTY REGISTRAR COURT OF APPEAL