WILSON FANUEL v REPUBLIC 1993 TLR 267 (CA)

 

WILSON FANUEL v REPUBLIC 1993 TLR 267 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

CRIMINAL APPEAL NO. 124 OF 1993 G

8 November, 1993

(From the sentence of the High Court of Tanzania at Arusha, Mroso, J.) H

Flynote

Criminal Practice and Procedure - Sentencing - Powers of the Court of Appeal to

interfere with sentence.

-Headnote

The appellant was convicted of manslaughter on his own plea of guilty and was

sentenced to six years imprisonment. He appealed against that sentence as being

excessive. I

1993 TLR p268

A Held: It is trite law that an Appellate Court will not interfere with a sentence just

because it would not have imposed that sentence if it were the Trial Court.

Case Information

Appeal dismissed.

B Case referred to:

1. Silvanus Leonard Nguruwe v Republic [1981] TLR 66.

Mrs. Sumari, for the Republic.

[zJDz]Judgment

C Ramadhani, J.A., read the following considered judgment of the Court:

The appellant, Wilson Fanuel, pleaded guilty to and was convicted of manslaughter

contrary to s 195 of the Penal Code. He was then sentenced to a term of

imprisonment of six years. This appeal is D against that sentence.

The appellant appeared in person with a four ground memorandum of appeal. He

submitted that the punishment meted out is excessive, that he had readily pleaded

guilty and so saved the Court from conducting a full trial, that he killed his own son

in the course of chastising the deceased and that he E is now remorseful for what he

has done. The appellant pleaded for leniency at the hearing of the appeal for two

reasons. First, he said his family of five kids, a wife and an aged and blind mother is

suffering greatly because of his incarceration. Secondly, he reiterated that he had

acted inadvertently and that he had not intended to kill his son.

F Resisting the appeal on behalf of the respondent Republic was Mrs Sumari,

learned State Attorney. She supported the punishment awarded to the appellant and

pointed out that the appellant was just repeating what he had told the learned Trial

Judge (Mroso J) who had duly taken the G mitigation into account when sentencing.

The learned State Attorney agreed with the learned Trial Judge when he said:

`But I must deprecate most strongly the brutal manner in which accused

chastised his young son of ten years to the H point of causing his death. I have to

impose a deterrent sentence on him and to any potential offenders of his like.'

The deceased had the habit of stealing. That fateful evening the appellant tied the

deceased to a post and flogged him with a stick until he lost consciousness. Upon

regaining it, the deceased asked for I and was given some water to drink. That was

the end of him.

1993 TLR p269

The appellant buried the deceased without reporting the incident to any authority.

The body was A exhumed and a post mortem was conducted about a week later. The

cause of death could not be determined but it was established that the beating was

administered on the buttocks. However, and as properly pointed out by Mrs Sumari,

the deceased met his death at the hands of the appellant. B Undisputably the

appellant over reacted to a delinquency of a boy of tender years.

It is trite law, which we have reiterated in Silvanus Leonard Nguruwe v R (1) that an

Appellate Court will not interfere with a sentence just because it would not have

imposed that sentence if it were the Trial Court. The sentence of six years for such

manslaughter as this one in this appeal, is not C manifestly excessive. At the same

time we cannot say that the learned Trial Judge considered matters which he ought

not to have considered or that he had used a wrong principle. D

So however sympathetic this Court may be to the said situation in which the

appellant is we are bound by the confines of the law.

The appeal is dismissed. E

1993 TLR p269

F