The appellant, Willy Walosha, was charged with the murder of one Masaba s/o Ndege. When he was called upon to plead to the charge, he chose to plead guilty to the lesser offence of manslaughter. The Director of Public Prosecutions, who was represented in court by Mr. Mwampoma, learned State Attorney, accepted the plea. The court then proceeded to convict him of manslaughter upon his own plea of guilty. Before sentencing him the court, Lukelelwa, J., took down mitigating circumstances which were pleaded by Mr. Mahuma, then learned advocate for the appellant.
The mitigating circumstances which were pleaded by Mr. Mahuma on behalf of the appellant were the following:-
The appellant, then accused, was a first offender; he had been in remand custody for 4 years and 9 months; he was the only child to his parents, was living with his mother, his father having died; he had a school age son; he was the bread-earner for his family. The killing resulted from a fight and the deceased was overpowered. He suffered from chest pains because of the long period he had stayed in remand custody.
It was not pleaded but it was also a fact that the appellant had readily pleaded guilty to manslaughter, a factor which is considered to be an indication of remorse.
In assessing sentence the presiding judge, said he had in particular taken into consideration the fact that the appellant was a first offender; he had been in remand custody for four years and that he had chest pains. The judge said he had also taken into consideration all the other mitigating factors which had been pleaded. He then proceeded to pass a sentence of twenty years imprisonment on the appellant.
The appellant felt aggrieved by that sentence and, through Mr. Rugaimukamu, learned advocate, he filed three grounds of appeal. In all the three grounds the substantive complaint is that, considering the mitigating factors, the sentence which was handed down by the learned judge was plainly excessive. Mr. Rugaimukamu in fact argued the three grounds together.
Mr. Mbago, learned Principal State Attorney for the respondent Republic, on the other hand contended that the sentence may have been high but not excessive. The judge had considered the mitigating factors and meted out a sentence which was not a day too long and that this Court ought not to interfere with it.
In arguing the appeal Mr. Rugaimukamu contended first, that the trial judge did not fully consider the circumstances in which the death of the deceased occurred, that all that is known is that the stabbing of the deceased by the appellant occurred during a fight between the two. It is not known what brought about the fight, which means that the deceased may well have been the aggressor. Secondly, Mr. Rugaimukamu pointed out that the trial judge imported into the record facts which were not narrated by the prosecutor, which wrongly suggested that the appellant was the aggressor. Thirdly, the judgefs use of emotive words like gsenseless use of lethal weaponh before sentencing the appellant suggested a biased approach in the sentencing exercise. Fourthly, the fact that the appellant had pleaded guilty to manslaughter, was a first offender and had spent nearly five years in custody should have entitled him to a lenient sentence instead of the excessive sentence of 20 years imprisonment. He cited a decision of this Court in Bernadeta Paul v. Republic [1992] TLR 97 and Public Prosecutor v. Suleiman bin Ahmad [1993] 1 ML R 74 (HC) in support of that proposition.
We wish to consider briefly Mr. Rugaimukamufs arguments. We agree that apart from the undisputed fact that the appellant stabbed the deceased during a fight, the facts which were narrated to the presiding judge after the plea of guilty to manslaughter were silent on what prompted the fight between the appellant and the deceased and on why the appellant stabbed the deceased. There is no indication in the record, therefore, as to who the aggressor was. It is also worth noting in that regard that even in the dying statement of the deceased there is no hint who the aggressor was or what caused the fight. The appellant may have been the aggressor but it is just as likely that the deceased was the aggressor. So, we would agree with Mr. Rugaimukamu that there was no basis for the High Court to imply that the deceased was an innocent victim or that the appellant had made a senseless use of a lethal weapon. The judge was assuming facts which were not before him.
It is an established legal principle 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 proceeded on a wrong principle in assessing sentence or acted on wrong considerations or failed to take into account material factors. See James s/o Yoram v. R (1951) 18 EACA, 147. In that case the Court of Appeal for Eastern Africa said:-
A Court of Appeal will not ordinarily interfere with the discretion exercised by a trial judge in a matter of sentence unless it is evident that he has acted upon some wrong principle or overlooked some material factor.
In an earlier case of the same court R v. Mohamed Ali Jamal (1948) 15 EACA 126 similar views had been expressed but in addition the Court said that an appellate court would interfere with a sentence of a trial court if it imposed a sentence which was either patently inadequate or manifestly excessive.
The principles expressed in the above two cases were adopted with approval in several cases of this Court, among them the case of Bernadeta Paul v. R [1992] TLR 97, which was cited by Mr. Rugaimukamu. In that case a mother who had caused the death of her infant child and spent nearly five years in remand custody was, on conviction, sentenced to four years imprisonment. This Court set aside the sentence and substituted for it such sentence as would result in her immediate release from prison. That was because it was found that the trial court had not really taken into account the mitigating circumstances which included the fact that the appellant in that case had pleaded guilty to the charge, was a first offender and had spent nearly five years in remand custody.
In the appeal before us, the trial judge not only did he import into the case prejudicial factors, he failed to take properly into consideration material factors which normally entitle an offender to leniency. There were no known aggravating circumstances which would have influenced the judge to impose the sentence of 20 years imprisonment on the appellant. That sentence was, therefore, in the circumstances, manifestly excessive. t follows from what we have discussed that we allow this appeal by setting aside the sentence of twenty years imprisonment and substituting thereof a sentence of ten years imprisonment.
Before we part with this appeal we wish to observe that this is the fourth appeal coming before us in these sessions on similar grounds. It appears to us that, with respect, although ostensibly a judge may say that he has taken into consideration mitigating circumstances in assessing sentence, it is not always apparent that he has in fact done so. For example, first offenders who plead guilty to the charge are usually sentenced leniently, unless there are aggravating circumstances. Also, the period an offender has spent in remand custody before they are sentenced is also usually taken into consideration to reduce the sentence which the offender would otherwise receive. We expect judges will in future demonstrate more clearly, when assessing sentence, that they have properly taken into account both mitigating and aggravating circumstances of each individual case.
DATED at DAR ES SALAAM this 16th day of July, 2004.
