mwita so sibora vs republic 2000 tzca 20 1 december 2000

IN THE CCUKT OF APPEAL OF TANZANIA AT MVANZA (CORAM: KISANGA, J .A., LUBUVA, J.A., And LUGAKINGITiA, J.A.) CRIMINAL APPEAL NO. ^9 OF 1996 BETWEEN MWITA S/0 SIBORA ...................... APPELLANT AND THE REPUBLIC ......................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Chipeta, J.) dated the 26th July, 1996 in Criminal Appeal No. 22 of 1996 JUDGMENT OF THE COURT LUGAKINC-IRA, J.A.: This is the second appeal from conviction and sentence for robbery.-with violence c/ss 285 and 286 of the Penal Code (Cap. 1 6 ) read with the Minimum Sentences Act, 1972, as amended from time to time. There is no substance in .the appeal. There was evidence to the effect that on the evening of 26 May, 199*+, the complainant, P.v'3 Hussein Mtongori, was robbed of a blue colour 'Rolly:) sports ■bicycle by a person he did not know. In the course of the robbery, "\. the complainant was battered to unconsciousness with an iron bar. Under the bicycle seat was a mark ; '’HMi!, being the initials of the complainant's name. Ten days later, on b June, the appellant was apprehended with a bicycle of similar description and which the complainant identified as his stolen property. The appellant was accordingly charged. The trial court, after observing the bicycle, Exh. P2, and assessing the prosecution witnesses against the .. ./ 2 - 2 - appellant1 s .claim that Exh. P2 was not the bicycle he was arrested with, found that the appellant was the robber and convicted him accordingly. The conviction was affirmed by the High Court on first appeal.- We can find nothing in the record of evidence or the grounds of appeal upon which to fault the concurrent findings of the courts below. VJe think the conviction was merited on the basis of recent possession. The aspect of sentencing, however, attracts comment, though not in the appellant's favour. The trial court sentenced the appellant to. 30 years' imprisonment with 12 strokes of corporal punishment but the High Court tbok a different view of the appropriate sentence. It observed that the appellant was convicted of robbery with violence, rather them armed robbery, and stated that the minimum sentence for the former was imprisonment for 15 years. ‘ But the court was not minded to be lenient in view of the serious nature of the attack upon the complainant. According to the medical, report, Exh. P1, the complainant was unconscious for four days and when he regained consciousness, he remained confused for a week. For this reason, the High Court reduced the sentence to 20 years instead of substituting 15 years. Ve think the reduction was per incuriam. The position stated by the High Court was correct to the extent of the amendment of the Minimum Sentences Act by Act No. 10 nf 19o9- Following that amendment, paragraph (b) of section 5 of the Act provided for a term of 15 years for robbery while paragraph (bb) provided f»'r a term of 30 years for armed robberv. That was the position until 199^ when the Act was further amended by Ajt No, 6 of that year. The latter amendment deleted paragraphs (b) • • ./3 3 - and (bb) and substituted a new paragraph (b) with two subparagraphs as follows: (b) Subject to subparagraph (ii) of this paragraph - (i) any person who is convicted of robbery shall be sentenced to imprisonment lor a term of not less than fifteen years; (ii) if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more persons, or if at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes ox- uses any other personal violence to any person, he shall be sentenced to imprisonment for a term of not less than thirty years. This amendment came into effect on 1o March, 199^+. As can be seen, the sentence of 30 years is no longer confined to armed robbery but applies to all robberies in which the offender is armed with a ■dangerous weapon or instrument, is in company with one or more persons, or where in the course of committing the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person. In other words, all the ingredients of robbery with violence as set out in the second paragraph of section 286 of the Penal Code are now punishable with a minimum of 30 years. The term of 15 years remains reserved for what one might call "simple ropery.. As just stated, Act No. 6 of 199^ came into effect on 18 March of that year. The offence in this case was committed on 26 May, 199^; it was therefore within the ambit of the amendment, . . ./b Since there was use of personal violence to the complainant, and serious violence at that, the trial court correctly sentenced the appellant to 30 years' imprisonment. v.'e believe the High Court would not have interfered v/ith the sentence had the existence of Act No. 6 of 199^+ been brought to its attention. It is proposed to rectify the position here.. Accordingly, the appeal against conviction fails and it is dismissed; the sentence is, on the other hand, rectified by reinstating the original term of 30 years and 12 strokes. DATED at MWANZA this 1st day of December, 2000. E. H. KISANGA JUSTICE OF APPEAL D. Z. LUBUVA JUSTICE OF APPEAL K.S.K. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy of the original SENIOH DEPUTY KFGISTRAR