19901010 TZHC Dar es Salaam

P.FP ELLj.._&1I'E JURi SDI CTI ON . ·.l HIGH COURT CRIMIN/~~,Ai?J>,E(..L...,.NO. , 9 J OF 1989 .i (.From original Crimi,.,al case No. 202 of 1989 of the District court· of Ilala District at Kivuko~i) DEUS KAMUGISHJ:.. • •·• • • • ••·• .... o • • • • • . • • . • • • • • • FIRST 1-'..PPELLJ.N'T ,..f (Origi~al First hCcused I SMJ..IL Li;. YI .SECON'B ji.PPELL/~NT ( Origi.i:1.al. seco·nd Accuse\ , sersus THE W-TI TED RJ:PUBLI C •,.., • • • o ., • • • • • • • • • • e • • RESPO.NDENT (Origi~al Prosecutor) J_. U D G M E ?1 T MSUMI, J. The_. two appellaZlots, whos.e appeals hav.e beett consolidated, were joi..,tly convicted with a-nother person of one count of . robbery with violence. Each of them_.was se:ntenced to JO years imprisonme11t un.d.er .the Minimum senteR-ces Act. Both of them are aggrieved with the co!!;victions artd sentences heAce these appeals. The allegation against both appe~llaAts is that on 5th February, __ 1989 they stole a motor tyre from the vehicle of the co.mplainant ·o.,.._e Mohamed Majungusi ( PWI) • when the comp1aina,:i.t .. and his_.brother tried to r·etri.eve the snid tyre appellants threatened them with c, knife and stones. _,The .. tyre has not been recovered sinc.e th.en~ The £irst appeallant une Deus lC..-\mUgisha was arrested orl. the :following day while second .... appeJ.lant was arres·ted some hours later, on the same day of incident • .• • .•. • • • 0 /2 2 ... Complainant e:n<l h,;o other witnesses vividly identfied the appellants thereby enabling the police to apprehend them. The alleged incident hnppened round about 7.00 a.m_. and the wit-ne- sses, especially the complninant and his brother, had ample / time with the ~ppellants when they were trying, unsuceessfully, to recover the tyre from themo· Not o.u.ly that, both witnesses claimed thnt they had seen the appellants on many occasions prior to the incident in question. This fact has bee~ confirmed by the appellants themselves when they claimed, in their defence, that there was bnd blood between them and the two wit11esses. They claimed thct they once quarrelled with the son of the complainant. Thus e,S far as the id en tifica tion of both appellnnts is concerned the case cannot be materially faultedo The corollary of' this finding is that prosecution has managed · to discharge its onerous burden of pro~ing the guilt of both appellants beyond re~sonable doubt. In imposing the sentence of thirty years imprisonment against each appellant, the learned trial magistrate purported to do so under the provisions of the Minimum sentences Act as amended by Act Ho. 10 of 1989~ But according to fhe cha.r.ge sheet the-age of the first appellant Deus Kamugisha is said to be seventeen yoc:lrs., My brother Judge who admitted this appeal . observed, intar alit~, l·rhether the first appellant's age wasn't relevant whcm sentencing him. The l~gislature, in its chara- cteristic wisdom, hns spared juveniles, meaning peqple under the .... apparent age of eighteen years, fro~ the rigorous provisions I o-f: the Minimum Sentences J.cto It is thus clear that in this case the sentencG of'. thirty years imp.r:isonment purported to have been imposed unc:er the said J,ct is illegal'o /1 '· r .,. However, the r0levance of the first ap~ellant 1 s age does no't end wrth the :fi:nding that he is excluded from the provi- sions of the r,iinimum Sentences ,".ct. There is still the twin question of whether or not he is a young person hence he should be delt with in c.ccordnnce with the provisions of the Children and Young persons Orcanance~ Cap .. 13. A young person, according to this Ordinance, is a person who is twelve years of age or of upwards but un(er t:1e age; sixteen years. /~nd unless there are no alternative methods unc1er which a convicted yo'l.lAg person can be clelt with, section 22 ( 2) of' the Ordinance prohibits the imposition of custodial sentence on such otf~-,_~a~. --:r-n:·t11e present case i t is not certain whether· or not the f·i:hst appe- llant is a young persono As pointed out earlier, the _c.harge sheet assert.s that he is seventeen years olcJ while the appella§t himself in his defence claims to be sixteen years old. In a borderline case such 3.S this one, it is always advi.sable for the court to seek for the assistance of medical opinion. With such expert opinion coupled with the usual searc}:ling observation of the court, a reasonable estimation of accused age is likely to be attained. As the me.tter stands now i t is doubtful if the first appellant is ebove the age of a young person. This doubt must be resolved in his favouro But · even i f both appell~ts were of majority i'lge, the sentence of thirty years imprisonment as the statutory minimum would not be sustou~&blc. This sentence is for o.£f'enders of armed r0bbery anci_ I am of the opinion that the present case is not that of armed robbery. I am of the considered view that the gravity of the offence of armed robbery arises from the use of arms which are inherently dangerous to life and limb. Iri other words to aggrnvate the ·accused conGuct to the status of armed robbery, the type of nrms used must be intrinsically leathal. ' ..\• Among others, this _cntegory of weG1p0!1.S · I' would include all types of' fire arms, poison arrows and poison spears. Irre- spective of vn~at part of the body is aimed at and the force appl~ed. the use of. such weapon by it.self is foreseably fatal. rt is the type of wee.pons ·the use of which would irresistably lead to an infer~nce 0£ malice aforethought in the cases of murder or attempted ::;;ur.:ler., Hence on this reasoning I am ~ reluctant to hold the,t the use of su.~h weapons as stones, clubs and knives in the commission of robbery aggravates the offence to that of armed rcbberyo In the prese~t ,case appellqnts ar~ alleged to have been Llrmed with stones and· a knife. Thus it is- a case of ordinary robbery for which the statutory minimum sent'ence is fifteen years imprisonment. Let me comment; nlbeit briefly; ◊n.-corpornl punishment as part of the stntutory minimum sentences for robbery. ±n the admission reme-,rk Lu.z;akingira J, seemingly querried the trial magistrate's omission to impose corporal punishme~t as part of the minimum sentence. I must admit that at first instinance I sha:ued his concern. For this reason I was surprised-to note that whereas J;.ct No. 10 of 1989 provides e.0.hanced terms of imprisonment plus corporal punishment as Minimum sentences for the comparalively 1esser offences of attempted robbery and assault with intent to steal, corporal punishment is not part of the mandatory minir:1ttrn sentences for the more serious offences of robbery and armed robbery. ~dmittedly part II of the Corporal. l,?unishmen:t Orc-:inance has been amended by Act uo. 10 of 198§ so thnt robbery and armed robb~ry are included.in the list offences which may attract corporal punishment. But the effect of this amendment· is to make it. legal for courts to impose corporal punishment' on such ·effen<iers at their discretio"l.. otherwise the mnndatory minimum sentences for these aggravated offences_ is fifteen years imprisonment for robbery and thirty years imprisonment for armed robbery. I only h6~~ that this absurdity is a product of an ove~aight dn· the pait of the legislature. To the extent wh.nt is stated in.fra, this appeal partly succeeds and pnrtly fails. Appeal against conviction in respect of' both appellants ii:3 c1ismissed, except that the CO"t'\Viction o't armed robbery is hereby substituted to that of orcinary robbery. The sentences of thirty years imprisonment imposed as th~ statu- tory minimum for nrm~o robbery is set asice and each appellant is sentenced ~s follows. The first appellant, being a young person, is senten.GGd to suffer ten strokes of ca-ri.e under the Corporal Punishment Ordin-:.mce., As for the seco-n d appella..-,t he is sentenced to .fifteen years impriso11me11t under the Minimum Sente~ces Act as amended by Act No. 10 of 1989. 10/10/1990