20120220 TZAC Mwanza

. • P~-~V . . . ' . i I I IN THE COURT OF APPEAL OF TANZANIA ATMWANZA ! (CORAM: MSOFFE, J.A, BWANA, J.A.J And MJASIRI, J.~.l 1, ; CRIMINAL APPEAL NOS. 182 AND 183 OF 2007 I ! 1. SHABAN! MENGE } i 2. THO BIAS CHARLES ...................•· ..•......................1• APPELLANTS . ., I VERSUS . ! ~ THE REPUBLIC ..... .......................... J. .................... u■.1.RESPONDENT i ;, I i (Appeal from the decision of the High ~ourt of Tanzani~ at Bukoba) .i I I (Sambo, J.) .:iI' :' dated the 30 th ~ay of May, 2007 l l_n · Criminal Appeal Nos. 39 and 41 of 2005 -------j-------- '11 ' I JUDGMENT dF THE COURT i l I 17 & 20 February, 2012 I V BWANA, J.A.: . '! II The two appellants were conicted by the Bul<oba District Court at I 11, I . :, I I Bukoba, of the offence of Armed Rob bery contrary to !sections 285 and 286 1 :I ! of the Penal Code, Cap 16 (R.E. 2002). They wer:e each sentenced to ' thirty five (35) years imprisonmel and to pay :rshs. 200,000/= as · - I' : compensation for the injuries suffered by the victims cif the robbery. :1 I I I 1 I '.J I · Their first appeals before the Hi9'.h Court of Tanzania at Bukoba were unsuccessful, hence this second co7solidated appeal. Before us the appellants were unrepresented while the respondent Republic was I represented by Mr. Athuman Matuma, learned State Attorney. I I th Facts of the case as discerned from the record are that on the 15 day of May 2004 at about 22.00 hr~ at Musira Island in Lake Victoria, fishermen, employees of one Joel Faustin, PW1, were attacked by armed I bandits while fishing. Some of the fishermen were seriously injured. Their I attackers managed to sail away with the victims' boat. The said boat had I Registration No. MUM 3999. Its engine, Yamaha by make, H.P. 9.9 with serial numbers 682 KL 1007934, was ~lso stolen. The matter was reported to the police. Apparently the bandits! were not identified at the scene of crime. Two days later, that is on the 17!th day of May 2004, information was received to the effect that there were two men selling a boat engine which I by earlier description, resembled the one stolen on the 15th of May 2004. I 2 •' The police were informed and a trap was laid that would help in the arrest of the "sellers" of the engine. A "purchaser" together with a "mechanic" were made available. The former negotiated with the sellers the price. They settled for Tshs. 700,000/=. A "mechanic" was to inspect the said boat engine and establish its seaworthiness. The "purchaser" and "mechanic" were however, police undercovers. The two "parties" met, agreed on the terms and embarked on a journey to the place where the engine was to be retrieved from. A taxi was hired. On the way back, after collecting the engine, the parties were ambushed by the police and their taxi driven to the police station where the "purchaser", "mechanic" and the sellers were arrested. The boat engine was found in the taxi. When its particulars were compared with what the police had, they resembled. PW1 also identified it as being his stolen engine. The sellers, now the appellants, could not give a plausible explanation as to how they came into possession of the boat engine - hence this case. 3 The appellants have denied any participation in the alleged crime. In their grounds of appeal to this Court, they claim that they were not identified at the scene of crime and that the courts below were wrong in relying on the doctrine of recent possession to convict them. They also aver that ownership of the said boat e~gine was not proved satisfactorily. We do agree with the parties to this case that indeed the appellants were not identified at the scene of crime that material night. However, both the trial court and the first appellate court based their decisions on the well established legal principle that a court may presume that a man in possession of goods suspected to-have been stolen, soon after the theft, is I either the thief or has received the ~oods knowing them to be stolen, unless he can account for the possession (See Kantilal livraj and Another v R (1961) E.A. 6 at p. 7). That principle forms the basis of the doctrine of recent possession. The doctrine evolves around proof that theft has taken place; that soon thereafter, the accused was found in possession of the said property (See Rex v Bakari Abdallah (1949) 16 EACA 84; Alex Thomas v Republic, Criminal Appeal No. 230 of 2008 (unreported); I I Manazo Mandundu and Another v Republic (1990) TLR 92) unless he I 4 can prove his innocence. Therefore, possession of the stolen goods leads to a necessary inference being drawn, implicating the person being found I in possession thereof (See Alex Thomas I case, supra). We should not hesitate to note the following practical aspects of the doctrine. I I First, is that the goods found in possession of the accused must be the same as the ones reported to releJant authority such as the police or, already listed in a charge sheet (See Ali Bakari v Republic (1992) TLR 10). Second, the words "soon thereafter" are used relatively. The time taken between the commission of the qffence and the apprehension of the suspect in possession of the said good_s, depends on the circumstances of I each case. It may take a shorter period, such as two days as is in the I instant case. It may take many more days depending on the kind of I investigation being undertaken, the kind of crime i.e. theft committed, and I the like. Before a court of law invokes this doctrine, it has to take all I relevant factors into consideration. Third, there must be reasonable proof I or claim of ownership/possession by the person from whom such goods were stolen, or his agent. 5 i Ij l The foregoing analysis is consistent with the even~ that took place in I ,I, I . ,I the instant case. The boat engine whict,, is the subject matter of the case, ii, j I , I belonged to PWl. There is evidence t~at PWl reporteq the matter to the :I I Ii r , police immediately upon being informed of the armed robbery. He gave an I . I I explanation and produced receipts of th~ engine's purchase, to the police. 11 I I He also testified in court. Both appellants never chall~nged PWl's claims 'i I; I over ownership of the engine before;: the court. T7ey even failed to I , . . :1 ' establish how they came to posses if/: not to own that engine that they .I I ', . . wanted to sell to the "purchaser." I Ih Mwita Wam;bura v Republic, ! Criminal Appeal No. 56 of 1992 (unrepo;rted), the court held- ! : " .... the appellant failed to Jxplain to the co~rt how i! : he acquired possession of the stolen goods.: Under ,Ji • 'I, ·! our Criminal Law, the unex~lained possessidn by an i '" accused person of the •fruits of crime recently after :1 ; ··1 .' it has been committed, is presumptive evidence ,I',I i l against an accused not only on the charge: of theft 'i i or receiving with guilty kna,ledge .... " i 6 The sequence of events from the time the appellants were said to have been looking for a purchaser of the material boat engine, well ' through their meeting with the would be purchaser, hiring a taxi to go and collect the engine from where it was hidden up to the time of their I arrest, is presumptive evidence of an ;unbroken chain of events which leaves no doubt that the appellants knew the whereabouts of the engine and they wanted to sell it for T. Shs. 700,000/=. They could not know the i whereabouts of the engine and try to sell it if they were not in its possession. In Ally Bakari and Pili Bakari v Republic, (1992) TLR 10 at p 15, the Court had to make the following observation. "Quite clearly, as a matter, of law and logic, it is essential for a proper application of the doctrine of recent possession, that the stolen thing in the possession of the accused must have reference to the charge laid against the accused person. That is to say that the presumption of guilt only arises where there is cogent proof that the stolen thing I 7 possessed by the accused is the one that was stolen during the commission of the offence charged .... " I ' We subscribe to the foregoing observation by the Court. All the I evidence in this case irresistibly point to the fact that the appellants were I in possession of the boat engine, two days after it had been stolen. The I doctrine of recent possession connects the appellants with its possession I I and therefore, with the offence of armed robbery that was commited two I days earlier. Therefore their appeal agaihst conviction has no merit. We I dismiss it. I Of interest to us was the sentence of thirty five (35) years ! imprisonment meted to the appellants oy the trial magistrate and which I was left undisturbed by the first appellate court. I I The offence with which the appellants were convicted carries a I mandatory minimum sentence of thirty (30) years imprisonment. The trial I magistrate herein imposed a higher sentence than the minimum mandatory I prescribed by law. We must be quick to add here that the minimum I mandatory sentence means that a court may impose a higher sentence if it I 8 believes that the convict deserves such a severer sentence. The trial magistrate must in our view, show and preferably in writing, why he arrived at such conclusion. A higher sentence than the minimum proscribed would, in practice, be imposed by considering factors such as the gravity of the offence and the way it was executed; the prevalence of similar offences and the need, on the part of the court, to impose deterrent sentences to send the right signal to the offender and to potential offenders as well as to society at large; and the like. As stated above, the trial court should show in writing as to why it decided to impose such sentence. The trial court has to take into account as well, what both the prosecution and the accused say in their records and mitigation, respectively. He should not, in our view, allow himself to be influenced by external, extenuating factors. In the instant case, the record is silent on a number of important issues. We do note however, that the victims suffered cut wounds resulting in loss of a lot of blood. That was a serious crime. Would a prison sentence of thirty years not be reasonable and commensurate with the kind of offence committed? We think affirmatively. We further note 9 I • • that the appellants had no previous criminal record. At least the prosecution did not produce such record so as to make the court impose a severer sentence. The appellants' mitigation, though may appear persuasive, did not fall short of the normal mitigation usually given by convicts who do not have services of defence counsel. The first appellate court did not consider the issue of sentence thus implying that it was not out of the proportion. One may hold that the difference between thirty five and thirty years imprisonment is not big. It may be so but if we have to consider, as stated earlier, the overall objectives of sentences, then we find ourselves duty bound to make the following observation. As it is said by criminologists and penologists, a sentence, be it custodian or non custodian, must serve either of the following- 1. Either aim at reforming the convict, 2. Deter the convict, potential criminals and society at large; or 3. Portray a retributive character. We do not want to venture into the discussion as to whether our prison system helps in achieving any of the three objectives listed above. It is, 10 I • , however, sLJffice to state here that long ter; prison sentenc;:es, such as the · · mm1mum . i .of th e k"md .m tlh. man da·tory app 1·1cabl e .m 011ences " . 1s case,. hardiy reform inmates. They portray more the re~ributive charactJristics. !, . : I All the foregoing considered, we are of the view tha~ in the absence • 1 l I . of any reasons shown for the imposition' bf a sentence of! thirty five years imprisonment, there was no need to impose a sentlnce above the minimum mandatory which in itself, wethink, is much J the higher side. In the exercise of our reviSional jurisdi1ion we thereJre set aside. the · 'I I ·. i I . I thirty five years sentences of impriSOnfl/ent .and substitute therefor with 'i that of thirty years imprisonment to each ilppellant. .' 1 In conclusion, except for the v riation we have made on the I ' , I sentences we dismiss the appeal. ; , I I I ! . i i I I I .· '' 11 I I DATED at MWANZA this 20th day of !'February 2012. J. H: M50FF • • JUSTICE OF APPEAL 1 J. 5. BWAN 1 JUSTICE OF AP.PEAL . i . I S. MJASIR:. 'i I . I JUSTICE Of Ai?PEAL i I I ' I ''i . I --...:...Q,,rt===:s:--n ; J. 5. MGE'TfA , I i DEPUTY REGISTRAR I i COURT OF APPEAL I i 'j I , I, 12 'I i I . I i rI