IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 195 OF 2004
SAMSON KITUNDU …..…………………..….…
APPELLANT
VERSUS
THE
REPUBLIC ….……..………..……….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Tabora)
(Mwita,
J.)
dated
the 13th day of May, 2002
in
Criminal
Appeal No. 22 of 2000
-------------
JUDGMENT
OF THE COURT
6 & 16 March
2007
RUTAKANGWA,
J.A.:
The
appellant and three others were charged before the District Court of Igunga
with the offence of Robbery with violence c/ss 285 and 286 of the Penal
Code. The particulars of the charge show
that on 15th December, 1999 they did steal various shop merchandise
with a total value of TShs. 300,840/= the property of one Lucas Mayula and that
at the time of “such stealing did use actual violence by beating him using iron
bars and tie him down in order to overcome his resistance to the said theft so
as to obtain the goods stolen”.
When the
charge was read out and explained to the appellant and his co-accused, all of
them except one said:
“IT IS TRUE”.
The District Court entered pleas of guilty in respect of
the appellant and his co-accused who accepted the charge. Then the Public Prosecutor (P.P.) went
through the normal routine, taken as a precautionary measure, of narrating the
actual facts of the case.
The facts
show how the appellant and his colleagues attacked Lucas Mayala at his shop
armed with iron bars and stones, beat him up, stole cash TShs. 20,000/= and a
lot of shop goods and then vanished. The
appellant together with his colleagues were, however, arrested on 17/12/1999
and they confessed to one No. B.6626 D/Sgt. Mhoma to have participated in the said
robbery. All of the stolen goods were
recovered. The facts show that they were
produced in court in the presence of the accused persons and the appellant’s
written confession was tendered as exhibit P1.
The appellant and two others accepted the facts to be wholly
correct. They were accordingly convicted
as charged.
As the
learned Senior District Magistrate who convicted the appellant was skeptical about
the convicts’ ages he did not impose any sentence immediately. He, instead, ordered that they be medically
examined first. The good magistrate did
so because while it was shown in the charge sheet that the appellant was 18
years old, his age was put at 15 years in exhibit P.1. The examining doctor opined that the
appellant was about 18 years judging by his voice and growth of pubic
hairs. With this assurance the
appellant and his colleagues were sentenced “to fifteen years imprisonment each
with twelve strokes of corporal punishment.”
Apparently,
the appellant was aggrieved by the conviction and sentences. He appealed to the High Court at Tabora
against both. As the High Court (Mwita,
J.) was satisfied that the appellant had been convicted upon his own unequivocal
plea of guilty the appeal against conviction was rejected under s. 360 (1) of
the Criminal Procedure Act, 1985 (the C.P.A. hereinafter). Again the issue of the appellant’s age was
the bane of the learned appellate judge.
He ordered that additional evidence be taken to ascertain the age of the
appellant. The ball was thrown in the
appellant’s court. He had to produce
evidence to prove his age. It proved to
be an impossible task as he was in prison.
He failed to do so. All the same
he insisted that he was born in 1984.
The Republic insisted that the appellant had failed to prove that he was
not 18 years when he committed the offence.
The learned judge sided with the Republic, and dismissed the appeal
against the prison sentence. Hence this appeal.
In this
appeal, the appellant is contending that he was wrongly convicted as his plea
was equivocal. He was “under distress of
police officers” when his plea was taken. Furthermore, he is complaining that
even if it is held that he was properly convicted, the Court should allow his
appeal against the prison sentence as he was under 18 years at the time of
conviction. On the latter contention he
found support from an unexpected quarter.
Mr.
Rweyongeza, learned State Attorney, represented the respondent Republic. He urged us to dismiss the appeal against
conviction. He submitted that going by
the proceedings before the District Court it is patently clear that the plea of
guilty by the appellant was unquestionably unequivocal. As such, the appellant had and still has no
right of appeal in terms of s. 360 (1) of the C.P.A.
On the
issue of sentence, Mr. Rweyongeza came out in full support of the
appellant. He argued forcefully that it
was the duty of the prosecution to prove beyond reasonable doubt that the
appellant was 18 years or above at the time he committed the offence for
purposes of sentencing under the Minimum Sentences Act, 1972. He accordingly argued that it was wrong for
the High Court to shift this burden to the defence. As the prosecution itself tendered
conflicting evidence on the age of the appellant (i.e. Exh. P.1 and the PF3),
the doubts ought to have resolved in the favour of the appellant. On this premise he urged us to hold that the
appellant was 15 years old when he committed the robbery. At that age, he was a
young person in terms of s. 2 of the Children and Young Persons Act, Cap. 13 of
the Revised Laws Edn. 2002, who could not appropriately be sent to prison in
terms of s. 22 (2) of the same Act. If
we accepted his argument, he pressed us to quash and set aside the prison
sentence and impose any other sentence befitting a young person.
We have
gone through the record of proceedings before the District Court on the date
the appellant was formally arraigned. We
have found ourselves constrained to go along with Mr. Rweyongeza on his
contention that the appeal against conviction has no merit at all. In so saying we are aware that there is
always a presumption of innocence on the part of the accused in all criminal
cases and therefore a conviction should not be hurried by forcing a plea of
guilty.
It was Lord
Reid who in S [an infant] vs Manchester City
“… The desire of any court must be to ensure so
far as possible that only those are punished who are in fact guilty. The duty of a court to clear the innocent
must be equal or superior in importance to its duty to convict and punish the
guilty. Guilt may be proved by
evidence. But also it may be confessed. The court, will however, have great concern
if any doubt exists as to whether a confession was intended or as to whether it
ought to have ever been made …”
The ‘confession’ which Lord Reid had in mind is a plea
of guilty. The above observation by Lord
Reid was followed by the erstwhile Court of Appeal for East
Africa in the case of David
K. Gatihi v. R, Criminal Appeal No. 118 of 1972 wherein Duffus, P. said:
“The
courts are concerned not to convict an accused person on his own plea unless it
is certain that the accused understands the charge and intended to plead guilty
and that he has no defence to the charge …”
In D.P.P. v. Paul Reuben Makujaa (1992)
T.L.R. 2, the High Court of Tanzania (Msumi, J. as he then was) said:
“Whenever
there is an indication that accused intends to plead guilty, court should take
effort to carefully explain to him each and every ingredient of the offence and
a plea of guilty should only be entered if his reply to such explanation
clearly shows that he understood the nature of the offence and he is without
qualification, admitting it …” at p. 4.
We have
found it worthwhile to deal with this issue to this extent to emphasize the
importance of the duty imposed upon trial courts to be wary of entering pleas
of guilty without being absolutely certain that the accused’s plea is nothing
but a clear admission of guilt to the offence he or she is charged with.
With these
authorities in mind, after going through the charge and its particulars and the
facts given by the P.P., we are satisfied that they clearly revealed and
established the essential ingredients of the offence of robbery with
violence. We are equally satisfied that
the appellant’s admission of the said facts amounted to an unequivocal plea of
guilty. Also, we have found nothing,
either from the record of proceedings in the trial court or from the grounds of
appeal before us which would bring this case within the ambit of the four
special circumstances spelt out by Samatta, J. (as he then was) in Laurence Mpinga v. R. [1983] T.L.R. 166,
under which an appeal can be entertained from a plea of guilty. This appeal against conviction, therefore, is
barred by s. 360 (1) of the C.P.A. It is
accordingly dismissed.
On the
issue of sentence we are again in full agreement with Mr. Rweyongeza. Indeed the prosecution tendered conflicting
evidence before the District Court and the High Court regarding the age of the
appellant. As correctly argued by the
learned State Attorney if there was any reasonable doubt concerning the age of
the appellant, such doubt ought to have been resolved in the favour of the
appellant. After all, the facts given by
the P.P. and accepted by the appellant and which formed the basis of the
unequivocal plea of guilty, showed in black and white that the appellant was 15
years old at the time of conviction. This
is the age which the courts below ought to have considered in determining the
appropriate sentence.
At 15
years, the appellant was a young person in terms of s. 2 of the Children and
Young Persons Act, Cap. 13. Under s. 22
(2) of this Act no young person shall be sentenced to imprisonment unless the
court considers that none of the other available sentences under our laws was
suitable. Although the offence of
robbery falls within the ambit of the Minimum Sentences Act, 1972, it is
specifically provided in this Act, that its provisions shall not apply to
persons under the age of 18 years. It
goes without saying, therefore, that the appellant was wrongly sentenced under
the provisions of the Minimum Sentences Act, 1972.
Since the
sentence imposed on the appellant was illegal, it is hereby quashed and set
aside. The appellant, it is noted, has
already served almost half of the sentence imposed. To us, it will be adding insult to injury to
impose any other sentence on him. We
accordingly impose a sentence which will result in his immediate release from
prison unless otherwise lawfully held. The
appeal succeeds to that extent.
DATED at MWANZA this 16th day
of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
%20(10).png)
%20(28).png)
){kind=link}
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.