Omar, Ramadhani and Mnzavas, J.A.: The appellant, Benadeta Paul, had an affair with one Godfrey on 20/11/84. The embrace culminated to pregnancy and on H 20/8/85 she delivered a full-term baby boy in hospital where she had been sent by her parents. Apparently the parents did not suspect her to be in the family way, neither did she tell them of her condition.
She remained in hospital for only one night and was discharged home. On arriving I home the parents who had, as already mentioned,
OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
been taken completely unaware started asking her as to who was the father of her A child. The appellant replied that she did not know the whereabouts of the putative father. It would appear from the facts narrated to the trial court that parental pressure reached to such an extent that eight days after delivery of the infant the appellant decided to kill the baby and did so by administering a coffee pesticide to it. B
From the facts in support of the charge after the baby had died the appellant tried to take her own life by drinking the same pesticide. Immediately after the killing of the baby the appellant was arrested and charged with infanticide c/s 199 of the Penal Code. C
She pleaded guilty to the charge and, on her own plea of guilty, she was convicted as charged. In sentencing the appellant the High Court, (Munuo, J.), remarked:
D The accused is a first offender. She has been in custody since September, 1985, almost five years now. I sentence the accused to 4 years imprisonment.
Mr. Maruma, learned defence course, who also defended the appellant in the High E Court has no quarrel with the conviction, based as it was, on appellant's unequivocal plea of guilty. He has however appealed to this Court on behalf of the appellant against the sentence imposed.
Arguing against the sentence of 4 years imprisonment the learned defence counsel F submitted that in imposing the sentence the learned judge only took into account (as mitigating factors) that the appellant was a first offender and that she had been in remand for almost five years. It was submitted that the fact that the appellant readily pleaded guilty to the offence was not considered as a mitigating factor nor it was argued, the G possibility that at the time she committed the offence she was mentally confused due to constant harassment by her parents who wanted to know the paternity of the child.
It was the learned defence counsel's submission that had the learned judge taken into H account these other mitigating factors she would have found that custodial sentence was not the proper punishment. The court was invited to allow the appeal, set aside the sentence of imprisonment and order the release of the appellant from custody.
In rebuttal Mr. Lundu, learned state attorney, supported the sentence on the ground I that "the nature of the offence called for a
OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
severe punishment". The learned counsel was of the view that the sentence of 4 years A was "rather lenient". It was submitted that there was nothing wrong for parents to question their daughter as who was the father of the child; and that there was nothing wrong for parents to question their daughter as who was the father of the child; and that such inquiries by parents could not be said to amount to harassment of the daughter B to the extent of making her mentally confused and driving her to commit infanticide. The Court was asked to dismiss the appeal.
Dealing with the question of reduction of sentence imposed by a trial judge the Court of Appeal for Eastern Africa had this to say in R. v Mohamed Ali Jamal, 1948 15 C E.A.C.A. 126:
An appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where it appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is either D patently inadequate or manifestly excessive.
In a later case - James s/o Yaram v R. (1951) 18 E.A.C.A. 147, the same court also said: E
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 principal or over-looked some material factor. F
Coming to the present case it is clear from the record that in imposing the sentence of 4 years imprisonment the learned trial judge overlooked the fact that the appellant pleaded guilty to the offence charged. G
In the case of Francis Chilema v R. [1968] H.C.D. 510 where the accused had pleaded guilty the court said inter alia:
It is generally, if not universally, recognised that an accused pleading guilty to an offence with which he is charged qualifies him for the exercise of mercy from the court. The H reason is, I think obvious, in that one of the main objects of punishment is the reformation of the offender. Contrition is the first step toward reformation, and a confession of a crime, as opposed to brazening it out, is an indication of contrition. Therefore in I
A such a case a court can, and does impose, a milder sentence that in would otherwise have done.
It is our considered view that had the learned judge taken into account appellant's plea of guilty to the offence with which she was charged she would no doubt have found B that the appellant was entitled to much more lenient sentence than the sentence of 4 years she imposed. This is especially so taking into account that the appellant had but for this conviction an unblemished record and, if we may also mention, she had been in remand for about five years with the serious charge of infanticide hanging on her. C
Taking all these factors into account we agree with Mr. Maruma, learned defence counsel, that this was a case that loudly cried for leniency.
As the appellant was sentenced to 4 years imprisonment of 16/2/90 she has now D already served more than two years of the sentence. We think that is more than sufficient punishment. The sentence of 4 years imprisonment is accordingly hereby set aside and in substitution therefore the appellant is sentenced to such term of imprisonment as would result to her immediate release from custody; unless she is Eotherwise lawfully held in connection with another matter.
F Order accordingly.
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