19951128 TZCA Dar es Salaam

IN THE COURT OF APPEAL or TANZANIA AT DAR ES SALAAM (COW~: KIGANG.A. 9 J .A. 9 M] ALILA 9 J .A. 1 And L(IBUVA, J .A.) 1 CllllVIINAL APPEAL NO. 199 OF 1994 BETWEEN :MICHAEL JOSEPH • . • • • . . • . . • . • • . . . • APPELLANT AND THE REPUBLIC RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Dar es Salaam) (Bahati 9 J. ) dated the 6th day of August9 1993 in H/Court Criminal Appeal No. 97 of 1992 JUDGEMENT OF ,THE COURT The District Court of Ilala District at Kivukoni convicted the appellant of the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code. He was sentenced to a term of ·imprisonment for 30 years. The appellant was further ordered to suffer 5 strokes of the cane. On appeal to the High Court (Bahati 9 J.) the main issue raised was that the sentence imposed was not proper in law. He contended that the trial magistrate erred in sentencing him to 30 years imprison- ment because a mere knife was used in the commission of the offence in which case it was not armed robbery. In that situation 9 the appellant insisted 9 in terms of the provisions • . . . . /2 . .,. .•.l 2 - of Act No. 10 of 1989 9 .he shou..1d have been sentenced to 15 years imprisorunent for the offence of ordinary robbery. Dismissing the appeal 9 the learned judge held that the offence was armed robbery because the knife used· in the commission of the offence was a dangerous and offensive weapon. Still dissatisfied 9 this second appeal has thus been lodged. Again it is against the sentence only. Complaini.11.g_.agi;iinst-- the sentenc~__:the.. appellant __ has filed four__grounds of appeal. In addition to these grounds 9 at the hearing of -this·-appe.al_the--aQile.llant subrni tted a handwritten memorandum which....he claimed.contained .additional grounds of appeal. From these grounds 9 it i.s our view that in essence two .Po.int..s---.are raised in this appeal. F irst-"7 --that-the--Sen.t.e.n.ce .. _ -• imposed was not :proper as the -offence--involved was not armed robbery_... __Sec...ondl;y:7 -t.ha.t--a.s.._t.he ?1:J.J.Pellant was 16 years of age at the time 9 he should., not have been, sentenced- to 30 years imprisonment and 5 strokes of the ca:i.1.e. For the Respondent 9 Republic 9 J\:Ir. Mwengela, learned State Attorney appeared before us. In regard ,to the appellant's claim that he was 16 years of age at the' time of the trial before ' . . the District Court he submitted 9 that., that was not true. Referring to page 6 of the proceedings at the trial 9 Hr. Mwengela pointed out that the record q_uite clearly shows that the appellant in his sworn defence statement declared he was 20 years of age. It is inconceivable 9 Mr. Mwengela stressed 9 .... /3 3 that the appellant stated his age to be twenty years if, as a matter of fact he knew it was not so~ Furthermore, Mr. Mwengela contended 1 at the hearing of the appeal before the High Court the issue that the appellant was 16 years of age was not raised. It was Mr. Mwengela' s submission that there was· no basis for the appellant 1 s ..claim ...that- he should have been · t.reated-.as. a.juvenile. We accept Nr. T.1wengela I s subrnission that this ground is without merit. 1!.,ro.m .reco~- tm .-i.s.su.e-~..that- the appellant was 16 years old was neither before the trial court ...nor·-the-Higb_~-. Court on first appeala As already pointed out by Tu~r. Mwengela, lear.ned. State At·ton1ey, the facts as accepted. by the_ -two courts . . -~-· - ·-_ ·--below do not bear him out on this. The appellant in clear and .unambiguous -te.na.s .stat-ed . .i..n...his--de.£.a.nc.e.-•at the...-~t.rial... .:that-. he--··· - was at the time twenty years ola_. V{hat is more, on appeal to the High Court 1 the age of the appe11ai.'1.t was not raised at all. All that the appellant complained on appeal at the High Court was in regard to the sentence of 30 years imprisonment. In such circumstances, we think it is not only too late in the day but that the appellant cannot be entertained in this Court to raise an issue which was not before the two courts below. Furthermore, it is an issue which, according to the reco:cd, .the--appellant clearly admitted that he was twenty years old. ·rvi th respect, we are satisfied that it is a futile exercise for the appellant to seek to fault the learned judge on first appeal regarding the sentence im.posed on the ground of his age. . . './4 I- 4 We revert to the ground that the sentence of 30 years imprisonment was improper. In his submission on this point, Mr. Mwengela submitted that under Ac·t No. 10 of 1989 read together with section 286 of the Penal Code, once it is proved that a dangerous or offensive weapon or instrument was used in the commission of the robbery, such would be armed robbery. In :the .. instant--- case.1 ___l1Ir.--Mwengela .urged 7 as a knife was used which is a dangerous or offensive weapon the offenc-e . involved was, a:cned_J;Q.obeljT ":for... .1,vhi~h__th~-~Sjln:-1:i.e_nG,e.. ::lmpoaed .was- pro:,e~ rr On this groundJ---the-.only_isau.e,js whether in the ,ci,rcums-tan.c.es .. of the cas~, the offence involved was armed robbery. It is conllilon knowledge that the object behind the enactment of the '{Tritten Laws (Ihscellaneous Amendments) Act Noe 10 of 1989 wliich.. am.enda....:the "');1:i ni rmJJ.u Sentence Act, 1972, w.a,L..int.Qr ..alia,---to.raise the----penal:i;ies··for--o..ffaD.oas--~...robbe:r;v-$'. robbery with violence or atteillpt to commit such offences and the use of anns or dangerous or offensive .weapons. Otherwise, the basic definition of robbery still remains as provided for under the Penal Code. Under sec·l;ion 286 of the Penal Code which prescribes the penalties for robbery the circumstances under which if robbery takes place, a sentence of life imprisonment ,vith or without corporal pi.-;.nishraent could be imposed are set out. In that section, in part, it is provided. 0 •• ~ If the offender is armed with a.i."1.y dangerous or offensive weapon or instrument e,, 11 (Underlining SUJ),:Plied). From this, and as correctly held by the learned .... /5 • 5 judge, though there is no express and specific definition of what constitutes 11 armed robbery- 11 it is clear to us that if a dangerous or offensive weapon or instrument is used in the course of a r:obbery, such constitutes 11 an:a.ed robbery" in terms of the law as runended by Act No. 10 of 1989. In this context, the weapons are, in our view, not confined to firearms only, other types of weapons such as knives are also included. In the instant case, the weapon used was a knife which as already indicated is a dangerous or offensive weapon. Vii th respect, we are in agreement with the learned judge. that the offence involving the appellant was a:r:med. robbery. We are therefore satisfied that the sen.:·l;ence of 30 years imprisonment and 5 strokes of the cane imposed on the appellant was properly founded in law. The appellant's conplaint against the propriety of the sentence is untenable. ,.In th dismiss the appeal in its entirety. this 28th day of November, 1995. n. H. KIS.ANGA USTICE,OF APPEAL L. Ji.';. L18'ALILA . JUSTICE OF APPEAL D, z. HJBUVA JUSTICE OF APPEAL I certify l