D P P v PAUL REUBEN MAKUJAA 1992 TLR 2 (HC)

 D P P v PAUL REUBEN MAKUJAA 1992 TLR 2 (HC)

Court High Court of Tanzania - Tanga

Judge Msumi J

10 February, 1992

Flynote

Criminal Practice and Procedure - Pleas - Equivocality and unequivocality of pleas; B

Statutory Interpretation - Whether section 63 (2) (a) of the Road Traffic Act creates a

mandatory minimum sentence of two years imprisonment for offences committed

under section 40.

-Headnote

On pleading guilty to a charge of causing death by dangerous driving c/s 40(1) and C

63(2) (a) of the Road Traffic Act the respondent was convicted and fined Sh. 6,000/=

in the District Court of Tanga. The DPP appealed to the High Court on the ground

that the sentence was not only manifestly inadequate but also violates section 63(2)(a)

of D the Road Traffic Act which has prescribed a minimum sentence of two year

imprisonment. The respondent contended that the plea was equivocal hence the

conviction was not lawfully sustainable.

Held: (i) Under section 63 (2)(a) of the Road Traffic Act the mandatory minimum E

sentence of two years imprisonment applies only when the Court has opted for a

custodial sentence as opposed to other types of punishment;

(ii) before accepting a plea of guilty by the accused the court must be satisfied that the

F accused's reply is nothing but a clear admission of guilt;

(iii) the plea of the respondent was equivocal.

Case Information

Appeal dismissed. G

[zJDz]Judgment

Msumi, J.: On his plea of guilty, respondent was convicted of causing Death by

Dangerous Driving Contrary to Sections 40(1) and 63(2)(a) of the Road Traffic Act. He

was sentenced to a fine of shs. 6000/= or three months jail. Dissatisfied with the H

sentence the Director of Public Prosecutions is presently appealing against it. And in

apparent ignorance of the existence of the appeal by the Director of Public

Prosecutions, respondent filed appeal against his conviction. He is arguing that his

pleas was not unequivocal. Since the appeal of the Director of Public Prosecutions

cannot be I deliberated upon without somehow the court considering whether or

not respondent's pleas was unequivocal, notwithstanding its

1992 TLR p3

MSUMI J

irregularity, the appeal by respondent was also allowed to be argued upon. A

In the petition of appeal by the Director of Public Procesutions it is argued that the

sentence of a fine of shs. 6000/= or three months jail in default is manifestly

inadequate and it is also illegal since the law provides for a mandatory minimum

sentence of three B years for the offence. As for the belated appeal of the

respondent the Republic is submitting that respondent's plea was unequivocal hence

the conviction is legally sustainable. But without prejudice to this argument the

Republic is praying for order of retrial in case the court finds that respondent's reply

to the charge did not amount to C admitting the guilt, but also the facts narrated by

the public prosecutor to the court are inconsistent with the alleged offence. To be

specific, the learned counsel pointed out the fact that whereas the charge sheet alleges

that respondent drove on the extreme left of the road and thereby knocked down

deceased, the sketch map of the scene of the D accident produced by the prosecution

in support of the facts of the case shows that in fact deceased was knocked down in

the middle of the road.

The argument that there is statutory minimum sentence of two years imprisonment

for the offence of causing Death is based on the wording of Section 63(2)(a) of the

Road E Traffic Act which, as far as material, says:

63 - (2): Any person who is convicted of -

F (a) an offence under Section 40 shall be liable to a term of imprisonment of not

less than two years but not exceeding five years and the court may in addition thereto

impose a fine not exceeding one hundred thousand shillings ..... (emphasis supplied).

G

With respect the correct interpretation of this provision does not support the

Republic's view that the Section has created a mandatory minimum sentence of two

years imprisonment for the offence committed under Section 40. It is common view

that the phrase "shall be liable" when statutory used in the prescription of penalties

does not H have compulsory effect. In simple language, what it actually means is

that besides other forms of punishment authorised by law, court may impose the

prescribed sentence which is usually the maximum. The erroneous view held by the

Republic appears to I have been caused by the words "not less than two years"

appearing

1992 TLR p4

MSUMI J

in the Section. It is true that these words set a mandatory minimum sentence of two

A years imprisonment. However, this sentence becomes mandatory only after the

court has opted for a custodial sentence as opposed to other types of punishments. If

after convicting the accused the court decides to send him to jail, then the term of

such B imprisonment should not be less than two years and not exceeding five years.

It is not true that in every case where accused has been convicted of causing Death by

Dangerous Driving, he must be sentenced to a minimum of two years imprisonment.

It is quite lawful for the court to impose a sentence other than imprisonment as it did

in this case. C

The second limb of the argument against the sentence is equally not tenable. The

learned trial magistrate fully rationalized the sentence he has imposed. Quite

correctly the magistrate took into account; as mitigating factors, the fact that

respondent was a first offender, he promptly pleaded guilty and the heavy family

commitments he has. D Taking those factors in consideration the sentence of shs.

6000/= or three months jail cannot be impugned for being manifestly inadequate.

As regards respondent's plea, it is evident that it is not unequivocal. His statement in

E mitigation clearly shows that he did not grasp the nature of the offence at the time

when he pleaded guilty to it. It does not appear that all the ingredients of the offence

were fully explained to the respondent before his plea was taken. Whenever there is

indication that accused intends to plead guilty, court should take effort to carefully

explain to him F 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 has understood

the nature of the offence and he is without qualification, admitting it. Except when it

is absolutely satisfied that accused reply is nothing but a clear admission of the guilt,

court should be warry of G entering a plea of guilty where the nature of the offence

is such that may likely lead the accused to think that his alleged offensive conduct is

the actus reus of the offence without the other necessary ingredients such as culpable

knowledge. Thus in the present case it is evident that what the respondent admitted

was the fact that he caused the H death of the deceased. From what he said in

mitigation it is clear that he is refuting the allegation that he caused the death of the

deceased because his manner of driving at the material time was either dangerous or

reckless. To the contrary he is contending that there was no way he could avoid

knocking down the deceased. This contention I appears to be supported by the

sketch map of the scene

1992 TLR p5

of the accident which shows that deceased was knocked in the middle of the road A

and not on the extreme left as alleged in the particulars of the offence. It appears what

happened in this case is similar to what transpired in the Republic v Himo [1971] E.A.

351 where George, C.J., as he then was, said:

B In the first place one ought to examine with much care a plea of guilty to a

charge of Causing Death by Dangerous Driving. The accused may intend to do no

more than to admit that he was responsible for the accident which caused the death.

This observation underscores the earlier warning that as a general principle, court C

should be chary of accepting plea of guilty in this type of cases.

I agree with the learned State Attorney that in the event the plea is declared

equivocal, an order should be made for retrial. I think it is clear for the interest of

justice that D prosecution is given opportunity to prove their allegation against the

respondent. In conclusion this appeal is dismissed. However, the conviction is

quashed because the plea of the respondent was not unequivocal. The case is referred

to the District Court of Tanga for retrial. E

Appeal dismissed.

1992 TLR p5

F