19791226 TZHC Tabora1

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T1STa 0pU0qç) •;° 'T'TU aLjj ;° LL61 0 90t°N agpD TPUTU1T- .IPUt5T.Q) . 6L61 dO S .OM 'IY3ddV rWNIMDDJ?iflOD HOIH - • - 2LVWI2ddV ••- . • A ( It. was ctab1ished bond dispute that in March, 176 the appellant recieved a total of shs.1,356/75 on E.R0V. 1 s Nos. 729602 729603, and 729500 - 729502, ancr.729516; in April, 1976, he collected shst2,,652/5r on E.R.V.'s Nos. 729604— 729608 and 729517 - 729539; in May, 1976, he dollected shs.l, 795.00 on E.R.V.'s Nos. 729612, 729614 1 729558 - 729560, 729540,— 729545L.729547 - 729548, and 729550 - 729553; iñJüne.i976he collected shs.300/= on E.RV.'s Nos.729569 - 729571; and in July, 1976, he received shs.375/= on E0R.V. 1 s Nc.s.729572 - 729574 6 Not only did the appellant fail to rem±t this money to the cashier onthe.dates the money was collected or on any suhsequcnt.. date, but he also never entered these amounts in the R.C.C.B. as,ho ought to have done. The ajTpe1lant was then arrested and chorged accordingly. In hiS defenèe, the appeiltnt admitted having collected..a.11 tha± money, but added that he gave the money to the cashier w.iiput. redeivirg any receipt for the same. By hisown admission,. .thi5 was . contrary to laid downprocedure . The learned trial district magistrate carefu1l reviewed the evidence and accepted the prosecution's evidence and rejected the defence story as creating no reasonable doubt in his mind. He accrding1y coc1uded that, the appellant had donverted the mcney, to his own use, and so he convicted the appellant as charged. In his memorandum of appeal, the appellantsavs, in effect, that there could not have been any shortage .in that if there had been any .shcgtage, the same could have been discovered during the daily checks by the Revenue Officer and rrevus audits. After carefully perusing the evidence on ecord, Ican find nóeaon to fault the learned trial magistrates findings of fact and the conclusions hd drew therefrom. The appellant was obviously not new to the job. He was fully aware of the procedure to be followed in accounting for the money he collected. He had to enter the amounts inthe. ROC.COBO, remit the same to the cashier, and thon obtiu a reeipt for the amount remitted. It is inconceivable that the appellant would simply hand aver the mc:ney to the cashier without entering the same ir the R.,C O C.B., let 1one withc:ut obtaining a receipt for the same. The appellant's claim that he gave the money to the cashier is quite clearly a rediculous after—thought. He did not even hjnt it in his cross—examination of the cashier. The fact that earlier checks and audits did not reveal the shortage is by no means of any assistance to the appellant. Perhaps I should remind him that the Internal Revenue Officer clearly said in his evidence that he never checked the appell 0 nt's books during the material period. ._./3 For 4' ...- For the foregoing reasons, the donvictions cannot be reasonably assailled. Indeed, the only reason why this appeal was admitted to hearing was that my learned brother (Napigano, J) was of the view that the order by the trial magistrate that the sentences should run consequtiely was questionable. To that question I now turn. There is ample authority for the proposition that as a general rule, concurrent sentences should be awarded for offences commItted in,the course of the same transaction or which formed a series of the same or similar character. or. whIch were• committed in the pursuit of oneor similar plan, except ±n extraordinary circumstances. As was stated..by .Lawe, J.,, in the case of Regina vs6 Kasongos/o ' Lihogwa 2 (R) .47:- - "It is awell- establIshed principle that offences committed in the same transaction should carry concurrent sentences and before any departure is, . made •rm this principle the trial magistrate must he satisfied that there are very exceptional circumstances which warrant that course being taken.". .(See also"Rexb v, Sawedi Mukasa., 13 EOA.COAO 97; R.V. Fulabhai Patelbid,.l79, at 186; and Kainuhanda V. R. (1971) ..H.C.D. n.45. In ordering the sentences.in the ihstant case to run consecutively- the iearned magistrate stated: . . "As he did not commit. them on th same date I order that the sentences on all the eight counts to : be served consecutively." i certainly appreciate the reasoning of the learned magistrate, and it may well be that in considering whethei there are "very exceptional circumstanceb..o warraii - L departure from the general principle, the fact that the offences were committed on different form dates maa part of the circumstance-to be qonsidered. But I am not persuaded that that alone can constitute very exceptional circustances in cases of this nature. As the learned magistrate will no doubt appreciate, the offences in the instant case were similar, were committed in the course of the same transaction, and formed a series of the same or similar character in the course of a single plan. 1n my view., therefore, there was no good reason for ordering the sentences to run consecutire1y in the circumstances of this case. ...../3 If • .... - 4 - LA If the learned magistrate was of the view that a deterrent punishment was called for, and that would appear to have been his view, 'ihat he could have done was to impose a deterrent sentence in respect of one of the counts which he thought was the gravest of all, and then impose minimum sentences on the remaining counts, and then order all the gentences to run concurrently. What the learned magistrate's order amounted to, in effect, was that the • of appellant should serve a substantive sentence124 years. By any stretch of imagination, such a sentence for stealing a total of about shs.6,480/ stuns cmmonense and ordinary logic. For the foregoIng reasons, the entence of theeyear imprisonment in respect of the 5th count Is herebysetaside, and substituted therefci is a sentence of four years imprisonment. The rest of the sentences shall remaih undisturbed. The learned magistrate's order that the sentences shall run cotisecutively is hereby quashed, and substituted therefhr is an order that all the sentences shall run concurrently. In other words, thej .ppekl-art shl now' seve:a sübstantive sentence of four (4) years imprisonment. To the extent indicated herein, the appeal succeeds, but it is otherwise dismissed. TABORA •, T B. D. CHIP TA, 26/12/79 ,, JUDGE.