Simon Bahati @ Maguta vs Republic (Criminal Appeal No. 107 of 2010) [2014] TZCA 2216 (1 March 2014)

., ':·•:..-~ "'*'· . ·/ ·' , IN THE COURT OF APPEAL OF TANZANIA AT T.A.BO'RA · (CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRI, J.A.) CRIMINAL APPEAL NO. 107 OF 2010 SIMON BAHATI @ MAGUTA ...................................... APPELLANT . VERSUS ' THE REPUBLIC •••• ~ .•.••..•.•.••.•....•.•.••••.• ~ •••••••••••••••••••• RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Kaduri, J.) Dated the 8 th February, 2010 . in . ,_ Criminal Sessions Case No. 60 of 2009 I I I I I ■ I I I ■ I I I I I I I I JUDGMENT OF THE COURT 28 th February & 3 rd March, 2014. MJASIRI, J.A This is an appeal against sentence only. In the High Court of Tanzania at Tabora, the appellant Simor. Bahati@Maguta was charged with the offence of murder contrary to section 196 of the Penal Code, Cpp 16 R.E. 2002. It was alleged by the prosecution that on February 2, 2008 on about 22.00 hours in the· Bukombe District in · Shinyanga region he 1

a,· () murdered one PendoMaganga. Briefly the facts of the case as presented during the trial and agreed upon by the appellant are as follows:- The appellant and the deceased booked a room at a guest house known as 'SSM' which is located at Masumbwe Village, Bukombe District in Shinyanga Region. The duo proceeded to have sex. However when the deceased wanted to leave the guest house, the appellant refused to let her go as he wanted to continue with the act. When the deceased insisted on leaving, the appellant was furious and he attacked her on various parts of her body especially her head and face leading to severe head injuries, bleeding, fracture of the neck and ultimately her death. He ran away leaving the dead body in a ditch. After the prelim_inary hearing, the appellant offered a plea of guilty to a lesser offence of manslaughter. The offer was acceptable to the prosecution and after the appellant admitted to the facts read out in Court the appellant was convicted of the lesser offence of manslaughter. He was sentenced to twenty five (25) years imprisonment by the High Court (Kaduri, J). The appellant is now appealing against sentence. 2

At the hearing of the appeal, the [~ppellant was represented by Mr. Musa Kassim, learned advocate, and the respondent Republic had the services of Mr.lldephoneMukandara, learned State Attorney. The appellant presented two grounds of appeal. However, Mr. Kassim abandoned the second ground of appeal thus remaining with the· first ground which states thus:- "That, the learned trial judge erred in law and in fact to impose excessive Jail sentence of 25 years imprisonment to the appellant without taking into account his mitigation factors. " On his part, Mr. Kassim complained that the trial Judge failed to consider mitigating factors raised by the appellant.He submitted that by pleading guilty, the appellant showed clear remorse, and regretted the whole unfortunate incident. The appeJ.iant was only 30 years old, was a first offender and hadalreadyspent one year in custody. He relied on the case of Tabufikwa V. Republic[1988] TLR 48.He therefore urged the court to reduce the sentence as it was manifestly excessive. 3

. Mr. Mukandara on his part submitted that the sentence was not severe at all given the circumstances of the case. He made reference to the post-mortem report demonstrating severe and aggravated injuries. He also stated that even though the appellant was thirty years o!d, the victim was only 18. In relation to the mitigating factors, Mr. Mukandara submitted that the judge took the same into consideration. He made reference to page 13 of the record where the judge concluded as follows:- "Taking all the above into consideration the accused is sentenced to 25 years imprisonment." We on our part need to determine whether or not we can interfere with the sentence meted out by the High Court. We are fully aware that the offence of manslaughter attracts a maximum term of life imprisonment. In the case of Silvanus Leonard Nguruwe v. Republic[1981] TLR 66 it was stated thus:- 4

t ''Before the Court can interfere with the trial High Court's sentence, it must be satisfied either that, the sentence imposed was manifestly excessive, or that the trial Judge in passing the sentence ignored to consider an important matter or circumstances which he ought to have considered or that the sentence imposed was wrong in prir,ciple. , ✓ In considering sentencing, this Court has often made reference to the principles laid down by Brian Slatteryin his Handbook on Sentencing. See Charles Mashimba v. Republic [2005] T.L.R 90, EvanceRichard@Mtaboyelwa v. Republic, Criminal Appeal No. 145 of 2012, Patrick Matabaro@Siima and another v. Republic, Criminal Appeal No. 333 fo 2007 and Mankalangalewe v. Republic, Criminal Appeal No. 333 of 2007 and Mankalangalewe v. Republic, Criminal Appeal No. 28 of 2013 CAT (all unreported). Slattery states as under at page 14:- "The grounds on which an appeal court will alter a sentence are relatively few, but and actually more 5

' numerous than is generally realized or stated in the cases. Perhaps "the most common ground is that a sentence is ''manifestly excessive"; or as it is sometimes put so, excessive to shock. It should be emphasized that manifestly is no{ mere decoration and a court will not alter a sentence on appeal simply because it thinks it is severe. A closely related ground is when a sentence is ''manifestly inadequate';Asentence will also be overturned when it is based upon a wrong principle of sentencing. An appeal Court will also alter a sentence when the trial Court overlooked a material factor. Such as that the accused is a first offender, or that he has committed the offence while under the influence of drink. In the same way it will quash a sentence which was obviously based on irrelevant considerations. Finally an appeal Court will alter a sentence which is plainly illegal, as when corporal punishment is imposed f(!r the offence of receiving stolen property'~ 6

It is settled law that an appellate court should not interfere with the discretion exercised by a trial court in sentencing an offender unless it is apparent that the trial court failed to take into account material factors. In YohanaBalicheko v. Republic [1994] TLR 5 at page 7 this Court made the following pertinent observations:- "This Court will interfere only in limited circumstances including where we are satisfied that the sentence was manifestly excessive or that the sentencing court failed to consider a material circumstance or that it misdirected itself in some particular or that it otherwise erred in principle" See also: Mohamed Ratibu @ Saidi V. Republic, Criminal Appeal No. 11 of 2004 CAT (unreported). Looking into the circumstances of this case it is evident from· the facts on record (which was admitted by the appellant) that a misunderstanding ensued between the appellant and the deceased. Whilst 7

.. I initially they were willing partners. who checked into a guest house, for their· own leisure, the appellant was not willing to respect the wishes of the deceased, when she was no longer willing to continue with the act. This led into a fight and ultimately the death of the deceased. The post- mortem report demonstrated extreme brutality on the part of the appellant given the nature of the multiple injuries sustained by the deceased. The summary report provides as follows:- "Dead body found outside the shallow well while naked with multiple injury, two(2) wounds(lacerated ones) R! ten1poral area with, other wound on the occipital bone. The cause of death was severe head injury and bleeding external and fracture of the neck." However we agree with Mr. Kassim that it is not clear from the record that the trial judge took into account the mitigating factors raised by the appellant. A general conclusion was reached by the trial judge without making specific reference to the miti,;3ating factors. 8

Given that the appellant is a first offender, readily pleaded guilty to the offence and was only thirty(30) years old when he committed the offence, ahd had served one year in remand prison and four years imprisonment after conviction, we find that a sentence of (25) years is manifestly excessive. For the foregoing reasons, we feel compelled to interfere with the sentence of twenty five (25) years imprisonment. We therefore allow the appeal and substitute the sentence of twenty five years with one of seventeen (17) years imprisonment. DATED at TABORA this 1 st day of March 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL ·. I certify that this is a true copy of the original. ~l!iiL= P,?BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPE 9