abubakar ndimbo vs republic 2014 tzhc 2200 20 may 2014

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO.42 OF 2013 Originating from Criminal Case NO. 1115 of 2011 at Kinondoni District Court ABUBAKAR NDIMBO .................................................. APPELLANT V REPUBLIC.................................................................RESPONDENT Date of last Order 14/4/2014 Date of Ruling 20/5/2014

JUDGMENT A.Shangwa. J. In this case, the Appellant Abubakar Ndimbo was charged and tried together with three Others in Criminal Case NO. 1115 of 2011 of the Court of the Resident Magistate of Kivukoni at Kinondoni. The charge against them was based on two counts. On the 1st count, they were charged with conspiracy to commit an offence C/S 384 of the Penal Code Cap 16 R.E.2002. On the 2nd count, 2 they were charged with obtaining goods by false presence c/ss 301 and 302 of the Penal Code Cap. 16 R.E.

2002. The appellant was found guilty on both counts. He was convicted and sentenced thereof. On the 1st count, he was sentenced to two years term of imprisonment. On the 2nd count, he was sentenced to five years term of imprisonment. The sentences were ordered to run concurrently. He was not satisfied with both conviction and sentence. So, he appealed to this court. In addition to the sentence which was imposed on him, the trial Magistrate ordered that his house should be attached and sold in order to compensate the complainant P.W .l ELIPIDI MUSHI, a retired soldier, a sum of Tshs. 20,000,000/= which he obtained from him by false pretences. 3 During the hearing of the appeal, the Appellant abandoned his appeal against conviction on both counts but maintained his appeal against sentence on both counts. He said, the sentence which was imposed on him by the trial court on both counts is severe and that in imposing such sentence, the trial Magistrate did not take into consideration the fact that he has a big family which is depending on him. The learned State Attorney for the Respondent, Ms. Honorina decided to be calm in the sense that she did not comment on whether or not the sentence imposed on the Appellant by the trial court is severe. She left it upon this court to consider which I proceed to do herein below. > The record of the trial court shows that in sentencing the

Appellant, the trial Magistrate observed that the offences which the Appellant committed were rampant in 4 Kinondoni District and that therefore a stiff Sentence was required to be imposed on him in order to deter others from committing similar crimes. However, his observation that the offences which were committed by the Appellant namely conspiracy to commit an offence and obtaining goods by false pretenses are common in Kintfndoni District, Dar- es- Salaam Region appears to me to be a sheer sweeping observation which is not supported by statistics from the office of OC CID at Kinondoni or any independent organization for criminology. This means that his observation that a stiff sentence was required to be imposed on the Appellant in order to deter others from committing similar crimes in Kinondoni District has no legs to stand and is not based on reality. At any rate, in penology, punishing offenders by imposing long prison sentences or retributive punishments that have ever been imposed on offenders worldwide have never served to end 5 the commission of any crime in any society world wide. Also, lessons that have been learned in criminology world wide are that crimes relating to property such as theft and obtaining goods by false pretenses are likely to occur in society because of inequality. Thus, so long as there is ’ inequality in society, it is difficult to prevent such

crimes from happening even by imposing stiff sentence to offenders such as it was done to the Appellant by the trial Court in this case. In order to strike a balance between the Appellant and the prosecution, before sentencing the Appellant to a total of seven years term of imprisonment on both counts, the trial magistrate was supposed to take into consideration the fact that the Appellant is a first offender and that he has a big family of about twelve persons who are depending on him. Unfortunately, the trial magistrate 6 did not do so and proceeded to impose a stiff sentence on him. Had the trial magistrate taken into consideration the fact that the Appellant is a first offender. That he has a big family of about twelve persons and his prayer to be ordered by the Court to compensate P.W. 1 his Tshs 20, 000,000/ = as it deems fit and the lessons that humanity has learned in criminology and penology, he could not have sentenced him to a total of seven years term of imprisonment on both counts. Moreover, he did order that his house should be attached and sold in order to compensate P.W. 1 his Tshs 20 ,00 ,000 /= . In the final analysis, I reduce his sentence on 1st count from two years term of imprisonment to six months and on 2nd count, I reduce it from 5 years term of imprisonment to one year and six months. The sentences to run concurrently. It is so ordered. The trial magistrate's order for attachment 7 and sale of his house in order to compensate P.W. 1 his Tshs 20,000,000^= remains as it stands. A. Shangwa. J

JUDGE 20/5/2014 Delivered in open Court this 20th day of May, 2014 in the presence of the Appellant and Mr. Matendo Manono, State Attorney for Respondent. 5\ A. Shangwa. J

JUDGE 20/5/2014