YOHANA BALICHEKO v REPUBLIC 1994 TLR 5 (CA)

 

YOHANA BALICHEKO v REPUBLIC 1994 TLR 5 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Kisanga JJA, and Omar JJA

CRIMINAL APPEAL NO. 119 OF1987 B

28 July, 1988

(Appeal from the conviction of the High Court of Tanzania at Mwanza, Kaji, PRM,

Ext Jurisdiction) C

Flynote

Criminal Practice and Procedure - Sentencing - Sentence for manslaughter - Whether

Court of Appeal may interfere with sentence imposed by the trial court. D

-Headnote

The appellant was charged with murder, but ultimately found guilty of manslaughter

only and sentenced to 10 years imprisonment. In passing sentence on the appellant

the Trial Court considered the fact that the appellant was 41 years of age, he was a

first offender, and had been E remanded for four years, and that he was highly

provoked by the misconduct of his deceased wife. On appeal:

Held:

(i) As a general rule this court will not readily interference with a

sentence imposed by the High Court unless satisfied that the sentence was manifestly

excessive, or that the sentencing F court failed to consider a material circumstance,

or that it otherwise erred in principle.

(ii) In the circumstances of the case the sentence imposed, although heavy,

was not manifestly excessive to warrant interference by this court.

Case Information

Appeal dismissed. G

Cases referred to:

1. R v Wilson Munsha 5 NRLR 87

2. R v Lukanfubila [1970] HCD n 175

3. Silvanus Leonard Nguruwe v R [1981] TLR 66

Rugarabumu, for the appellant, Swai, for the respondent.

[zJDz]Judgment

Kisanga JA: delivered the following considered judgment of the court:: This appeal

arises from the decision of Mr S N Kaji, Principal Resident Magistrate exercising

extended jurisdiction, in which he H convicted the appellant for manslaughter and

sentenced him to ten years' imprisonment. The appellant had been charged with

murder, but at the conclusion of a full trial the learned Principal Resident Magistrate

found him guilty only of the lesser offence of manslaughter and proceeded to

sentence him as above. The appeal is against sentence only.

It is important to set out, although very briefly, the background of this matter. The

appellant was the husband of the deceased. The two had been husband and wife for

quite some time and had had I

1994 TLR p6

KISANGA JA

A seven children between them, five of whom are living. The deceased was given to

heavy drinking, and this appears to be the source of the appellant's quarrel with her

on many occasions. On the day of the incident the deceased returned home at night

from a drinking spree; she was drunk. She had B been away for a considerable time

leaving the young children at home unattended and without food. Upon her return

home the appellant beat her up severely, using a stick, by way of punishment for

disobeying his orders to stop drinking. In the course of such beating he inflicted on

her what the medical witness described as `huge wound on the head' involving a

depressed fracture of the skull C and a raptured main artery which caused

intracranial haemorrhage leading to her death.

In passing the sentence the learned Principal Resident Magistrate duly took into

account a number of mitigating factors nearly all of which had been put forward by

the appellant. This is what he said,

D `The accused is 41 years old. He is a first offender. He has been in remand for

about four years. He was very highly provoked by the misconduct of his wife (the

deceased). It was only too bad that he used excessive force.

He is hereby sentenced to 10 (ten) years imprisonment.'

E Mr Rugarabamu the learned advocate who argued this appeal submitted that the

sentence was manifestly excessive and urged us to reduce it. Counsel took the view

that the severity of the sentence meeted out was out of proportion to the seriousness

of the assaults inflicted. In this F connection he referred us to the case of R v Wilson

Munsha (1), cited by Brian Slattery in his book titled A Handbook on Sentencing at

56. The relevant law report was not available in the Mwanza High Court Library and

so we had to rely on what the learned author said. According to him the court in G

that case held that:

`One criterion in deciding whether a case of manslaughter calls for a

substantial sentence is to ask oneself whether if the injuries inflicted had not turned

to be fatal, any charge, or any serious charge would have been brought against H the

accused. If the answer is no, then only a light sentence is called for. If the answer is

yes, a substantial sentence is called for.'

The thrust of Mr Rugarabamu's submission was that the circumstances of the present

case involved I a purely domestic affair in which the appellant was chastising his

wife for some family miscon-

1994 TLR p7

KISANGA JA

duct, and in which death was not reasonably foreseeable. In those circumstances,

counsel argued, A the appellant was really punished not for the dangerousness of his

assaults on the deceased but rather for the gravity of the consequences of such

assaults, namely, the resultant death which was not reasonably foreseen; and that was

wrong. B

In further support of the submission that the sentence was manifestly excessive Mr

Rugarabamu again referred us to a decision of the High Court in the case of R v

Lukanfubila (2) in which the accused had raped a young girl aged about 10 years

following which the victim bled profusely for several days and eventually died. The

accused was convicted of manslaughter and sentenced to C only five years'

imprisonment. Thus Mr Rugarabamu's point is that by comparison, the sentence of

ten years' imprisonment in the present case was manifestly excessive.

Mr Swai, the learned State Attorney appearing for the respondent Republic resisted

the appeal and D submitted that the sentence was not manifestly excessive,

especially bearing in mind that the maximum punishment for manslaughter is life

imprisonment. Referring to the decision of this Court in the case of Silvanus Leonard

Nguruwe v R (3), he submitted that the circumstances in the present case do not

warrant interference by this Court. E

As a general rule this Court will not readily interfere with a sentence imposed by the

High Court. As observed in Nguruwe's case cited above, we would not interfere

merely because we think that if we had tried the case ourselves we might have

imposed a somewhat different sentence. This court will F 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. Mr

Rugarabamu's main G contention is that in assessing the sentence, the trial court

proceeded on a wrong principle in that it sought to punish the appellant not for his

assaults on the deceased but rather for the consequences of such assaults which

consequences were not reasonably foreseeable. But with due respect to the learned

counsel, the facts of the case do not support this argument. There was overwhelming

H evidence that the appellant assaulted the deceased viciously. He repeatedly

assaulted her that night using a weapon, namely, a stick. He renewed the assaults on

the following morning. During these assaults the deceased suffered great pain, cried

bitterly and pleaded for mercy requesting the I appellant not to kill

1994 TLR p8

KISANGA JA

A her but in vain. Even when neighbours tried to intervene, he repelled them and

inflicted a vicious assault on one of them (PW3) which sent him to the ground

causing him to break his watch. These were clearly vicious and merciless assaults on a

defenceless woman. Among the visible injuries B inflicted on the deceased during

the assaults was a huge wound on the head involving a depressed fracture of the skull.

Obviously that was a serious injury. Thus it seems plain that the appellant was duly

punished for his vicious, merciless and dangerous assaults, and for the serious injuries

he inflicted on the deceased. Indeed the court had a duty to impose heavy

punishment to meet the C gravity of such vicious and ruthless conduct of the

appellant. Viewed in that light, therefore, it becomes difficult to sustain Mr

Rugarabamu's submission that the appellant was punished merely for the

consequences of his assaults rather than for the dangerousness of those assaults.

D Mr Rugarabamu also referred to one mitigating factor or circumstance which the

appellant had raised and filed as an additional ground of appeal namely, that the

deceased left behind five children who it is his duty now to look after. The appellant

did raise that matter before the sentencing court, E but in passing sentence the court

made no reference to it. It is not clear whether the court overlooked it or whether it

had it in mind but thought that it was not material. To give the benefit of that doubt

to the appellant, we proceed on the basis that it overlooked it. However, it seems

unlikely that had the court duly considered that circumstance, it would have come to

a different conclusion, having regard F to the viciousness and the dangerousness of

the appellant's assaults on the deceased.

Looking at the case as a whole, it can be said with some justification that this was a

bad case of manslaughter, verging on murder itself. When the deceased repeatedly

cried bitterly saying that the G appellant was killing her and pleaded for mercy but

the appellant continued to assault her with the stick that night and renewed the

assaults on the following morning, that was very close to establishing malice

aforethought on the part of the appellant. For, at least it must have been apparent H

to him that the assaults were dangerous to the life of the defenceless woman. In all

the circumstances of the case we think that the sentence of 10 years' imprisonment,

although on the heavy side, was not so manifestly excessive as to warrant interference

by this Court. In the result the I appeal is dismissed.

1994 TLR p9

A