BERNADETA PAUL v REPUBLIC 1992 TLR 97 (CA)

 

BERNADETA PAUL v REPUBLIC 1992 TLR 97 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas JJA

13 May 1992

Flynote

Criminal Practice and Procedure - Sentencing - Mitigation - Conviction on plea of

guilty - B In remand for five years and first offender - Whether sentence of 4 years

imprisonment proper.

-Headnote

The appellant was convicted on her own plea of guilty, of killing her 8 day old baby.

C In sentencing the appellant the High Court considered only two mitigating factors

- that she was a first offender and that she had been in custody for almost five years.

The sentence imposed on the appellant was 4 years imprisonment against which she

appealed. It was argued on appeal in favour of the appellant that the fact that she D

readily pleading guilty to the offence was not considered as a mitigating factor.

Held: (i) 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 E the judge has acted upon some wrong principle or has imposed a sentence

which is either patently inadequate or manifestly excessive;

(ii) had the learned judge taken into account appellant's plea of guilty to the

offence with which she was charged the judge would no doubt have found that the

appellant F was entitled to a much more lenient sentence than the sentence of 4

years imposed.

Case Information

Order accordingly.

Maruma, for the appellant. G

Lundu, for the respondent

[zJDz]Judgment

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,

1992 TLR p98

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

1992 TLR p99

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

1992 TLR p100

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 E

otherwise lawfully held in connection with another matter.

F Order accordingly.

1992 TLR p100

G