19751030 TZHC Dodoma

IN THE HIGH COURT. OF TANZANIA : AT DODOMA

APPELLATE JURISDICTION . HIGH COURT CRIMINAL APPEAL NO. 160 OF 174 F. CR. REVEIO1'4 NO,. 54 OF. 1974 ,QRIGINAL CRIMINAL CASEIIOO 93 of.1973' OF THE DISTRICT COURT OF MI3OZI DISTRICT AT VWhWA BEFORE J W6 OGOLA DISTRICT MAGISTRATE LENMIARON 0 00.:.. ... .......... 1PPELLANT 'S . versus ' THE REPUBLtC RESPONDENT CHARGE Robbery c/s 285 of the Penal Code. SU D d , 14 E . NT MWESITMO, AG0 J. .. .. . . . ,, On 8/11/73before Mbozi, District Court presided over. S. W. Ogola, District Magistrate, five people, namelly Lerni sb Aron, Salu s/o Ulaya, Ibrahim s/o Haloli, Nicodem 's/ô Matheyo and John s/a Willson we'e convicted of three ,counts, fit .obbcrr with vio1nce c/ss 285 and 286 of the Penal Code, secondly, wrongful confinement • contrary to section 253 of the Penal. Code and thirdly being in unlawful ossession,of'G.oernment store contr.ry to sect.on 312(a) of the Penal Code. .... . On the 1st count each was sentenced to three years' imprisonment while on the 2nd count each. was sentenced to one year's imprisonment and on the 3rd.count each wa alsO sentéhced to one year' s imprisonment and the trial magistrate ordered those sentences to run consecutively in respect of the 1st .and2nd accused persons for the purported reason " that those, people did not pray for leniency whereas in respect of the 3rd, 4th and 5th accused persons he ordered their sentences to run concurrently for the

asserted reason that those people had pleaded for mercy and that they had advanced convincing factor's for mitigation. Aggrieved by that decision Lemi s/o Aron, now appels to this court against both conviction and sentence saying among other things that :"he never co-operated.'nor:corresponded with adcused No.2, 31 and 4.' As pointed out by Mapigano, J. in his minute when admitting the appeal the main question is that of a possibility of a mistiken identi- fication d on this question the Learned State 'Attorney Mr.' 'Kinabo who appeared for the Republic in this appeal argued at leng4 to the effect that there was adequate identification for the reasos n that the ctmplainant and his sons had known the appellant and the other convicts who have n'ot' ajpealed prior to that date df the attack and the subsequent robbery and that on the date in question ample time had passed when that harassment was going. or Over and above tht the coinp1ainant and his other sçn trucked the culprits when the latter were already ahead of them with one of the two aons, KulaLa s/a Morogoro. I am satisfied that the appellant and the other,convicts were properly identified as the people who attacked and robbed from the complainafltard his sons as clearly elaborated in the proceedings of the trial court. .....2 I - 2 - Thus convictions on the 1st coUnt must be allowed to stand. As regards the 2nd count it

was deposed before the trial court which then found it as a fact that those very culprits led away one of the-:two Sons of the complainant and -hañdáuffed him and restrained him for quite some time before they later on'released him. That finding of fact was clearly based on.the evidance of the victim himself (Kulala s/o Morog&o) and that of his fath-r the main complainant in the case and the evidehce of the other son also landed suppott to the same effec.. The only question which, if anythinc, might attract some attention is whether that act constituted wrongful confinemen€ under the provi- sions of the quoted law. section 253 of the Penal Code0 That section unfortunately, presumably because of the, sImplicity of the terms used therein does not offer any definition of a 'Wrongful confinement" but straight away proceeds to prescribing puIishment for such : , an offence.. One might think that the Legislature felt'that the meaning of those words was so clear that no need arose of putting a section or a provisc in that section for the definition of that expression0 To. my understandin, "wrongul confinemert" may be defined as a restraint of a person by, another by eitherñioral on. physical force which may be in a;fcrm of threats of, violence or -actual usage.of violence upon the restrained victim withou sanction t of. 'the:or law contrary to the provisions of the law of the land0 In

the instant case the:gangsters handcuffed their viç.im, Kulala s/o Morogoro', whom immediately thereafter they led •away and icept him under their physical control and stipervi.sion f or quite some time, before they released him to resume his normal liberty0 Applying the. definition I have formulated above, it i my'firm view, that in that situation Ku'1ala s/o Morogoro was wrongfully confined by the appellant who in so doing' ac€èd jointly with the other convicts who, very understandably have hot taken the trouble to lodge any appeals against their convictions0 Consequently their convictions on that,cdunt were well-founded in law and I.would'accordingly uphold them and order thatthey be left Un- distrubed0 . They were all principl offenders as'defined by section 22 of the Penal Code, Likewise'by the application'of the i nterpreta:tidr of seç,Uon 22cf the Penal Code the 'possession of that one pair of ..hahdcuffs J' one of them physically and having' 'used it jointly as clearly depi'd€ed by evidence before the trial court f or restraining.their victim as a technically T. joint possession by all of'.them0 They"had and. 'indeed effectd a common intention of using it.foroverpowér'ingan.,confining"th'eir vIctim. Physically it would ,not be possible or practicable 'far all of them to handle that single pair of handcuffs but as long as their common intention, which car be infered from

theIr common conduct and activity against thetr victim was to use it and one of them possessed it that possossion as far as the commissio-i of the offence on the 2nd count is concerned was a joint possession. Therefore, their convictions on the 3rd count was sizrii3arly well established in law, The appellant thus -also' lose's' his appeal . against co'zviction on this 3rd c'oirnt., Turning to the questibn of -e€ences imposed clearly that for ,the 1st' count is'badin 'laW 'as:it 'of'feñde'd the clear provisions of the Minimum Sentences Act' No01 of 1972. As rightly pointed out by learned Sate Attorney, Mr0 Kinabo for.'robbery with violence, the mahd'tory minimum sentence is seven years', imprisonment0' Thus the sentence of three years imprisonment, on the 1st count was illegaL, • 0 0 0 0 0 3 f. -•' 3.:. I would accordingly set it aside and sübstiJtute thereof a sentence of seven years imprisonment against the appellant and all the...bter orivict' who have not .appdâled but in respe"ct of the question of sentence revisionaty poceeciings have been opened against them vide Criminal ,Revisioh No. 54 of 1974 enclosed in this appeal. As the sentence of seven years' imprisonment is the mandatory minimum there is no legal requirment of giving, them a chance of being heard for such an exercise as I hvé already sounded in a nuniber of my other L question would not affect the durati.ori .

of the mandatory minimum sions sentence y unless the same was to be énhancéd to a longer period. on simi- 1 ar As concededly submitted by the learned State Attorney who expressed no dissatisfaction on the sentences on the 2nd and 3rd counts I am also of the view that those sentences unde.r the dircUmstances of the case are fair and reasonable. They will thus be left undisturbed 'Inally there is the point arising from the comment of the learned trial District Magistrate who after pronouncing the sentences said : "The sentences in all th±ee counts shall run consecutively to the 1st and 2nd accused as they never prayed for leniency. They shall serve five years altogether. The other accused from 3rd, 4th and 5th aused each have a big family depending on them. They prayed for lënieñcy. .. This co•ut considers that they should be granted leniency0 The sentences in all three counts shall run concuLrently to the .thitd aàcused, fourth 'acüsed and fifth accused bo that they shall, serve three years t1 . on .ts'order. the learned Stath Attorney rightly pointed out that it was wrong. He further eleaborated that it has been held by this court in several cases, ti ough he did not mention any of them, that where the offences are comrnittwi... c.e transaction and accused person is a first offender the sentences shall be ordered to run concurrently unless there re exceptional circumstances and

added that failure to. ask'fd lenien&y cannot be said to constitute special circumstances. He asked the court to set.aside that.order and substitute anoter to the effet that 'th'sentences shc1dri2n concurrently In respect of all the five convicts, appellant inclusive. In the view of this court the test applied and adopted by the learned District Magistrate in determing who should be awarded con- current sentences and who should get consecutive sentences is not only novel but goes to offend the well-settled principles with regard to sentencing. On the subject. of what-sentences should be ordered to run con- currently as opposed to, those which should run consecutively there are not only a few cas.:l.aW authorities but I wouldventure to say that there are numerous dec±'siohs'on this subject - matter. To mention but just a few of them there are such cases as Robert - s/o Nyaga - rigare v3.R (1967) H.C.D. ?jR. Vs. Raphael Lameck .(1967) H.C.D27;Chiko,fldaThu...Chinigtang!iVS.'R. (1967) 'HOC.D 403; Juma s/o .... Abdallah vs''R, ('1968) H.C.D. 36; Nusa s/o Bakari V. R (1968) H.C.D. 239; Ali Mohamed v. R. (1968) H.C.D. 63; Samson sLo John v. R. (1969) H.C.D. 66; R. Vs. Saidi Abdalla Riyami (1969) H.COD.Q 107; Aboul Iddi Milani v. R. (1969) H.C.D. 115; Kainuhanda v. R. (1071) H.C.D. 45; Godfrey Peter Jailos vs. R. (1971) H.C.D. 468;'Irael v fl (1972) H.C.D. 107 and Mohamed v. R. (1972) H.C.D.

102. From reading this chain of authorities two principles emerge very clear1y. . . . . .4 4 - F' Concurrent setitence are appropriate for similar offences committed in. short period as part.of.a.single plan - Joseph A. Kashamakula v. R. (1,70) .HC.D. 201 Late Hamlyn Judge0 Offences committed in the same transaction should carry concurrent setences i an'dbefre any departure .is.:made from this principle the trial magistrate must he satisfied that there are very exceptional circumtances which, warrant such sentences to be ordered to run consecutively. • When one is faced with such a problem in sentencing the best approach is to arrive at an appropriate punishment for the entire transaction and award concurrent terms to meet separate counts taking into considerabon the effect of the sentence awarded for the graviest of such counts which in effect will be the sentence the aoused person will serve when ordered to serve thera coricorrently. In the instant case the trial District Magistrate advanced no reasons why he ordered the sentences. to run consecutively and worse still he advanced an unsustainable reason'for awarding concurrent senterces for. some' ofr.:the accused persons and consecutive sentences for the Other..accüsed.,pesos though all of"them were convicted of offences which..sten'inled froxti the :same stream of transaction and facts0 The mere fact that an accused pe'rsón

has pleaded some factors for mitigation is no good cause fc:;r taking it as very exceptional circumstances entitling him to. concurrent sentences and denying the' silent co-convict the same privilege. For the foregoing reasons and.bearing in mind the abundant autho- rities cited abOve I would fe. impelled in lab. to set aside that part of the order of the trii agis'atc ;; -iic -. tated that the sentences on the 1st' and' 2nd accused persons would run consecutively and in substitution thereof I now order that the sentences in respect .of each of the five accused person's including' the appellant shall run concurrently. - In the final resiiltt1refore, save 'for' the alteration of the order as to duration of tho ccntences as ampl' indicated above, 'this appeal fails in its entirety and it is as such accordingly dismisd. - D elivered in open court at Dodoma this 30th day of Octob er, 1975. (41/ E. A MWESIUMO .............................' ' ', AG. JUDGE I. •