20170608 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. 171 OF 2016 (Original Criminal Case No. 7112016, from the Resident Magistrate Court of Mbeya at Mbeya) THE REILJBLIC .....................................................APPELLNT VERSUS 1.TIZOS/0ILANGO 2. JOB S/0 MASANGANO I. . . . . . . . . . . . . RESPONDENTS JUDGMENT Date of last Order: 0510612017 "7 Date of Judgment: 0810612017 A.F. NGWALA, J. The respondents in this appeal were jointly charged, convicted and sentenced for the offence of Obtaining Money by False Pretence contrary to Section 302 of the Penal Code CAP. 16 R. E. 2002. The 1st accused person was sentenced under Section 3 of the Probation of Offenders Act, CAP. 247 to a term of one year. The 21d accused person was sentenced to serve a three years jail term under the Community Services Act in accordance with Section 3 of the said 2-o Act. The 1st accused person was ordered to pay a sum of Tshs. 26,000,000/= being compensation to the victim while the 2h1d accused person was ordered to pay Tshs. 6,000,000/= as Pagelofli liq compensation to the victim. The Republic is dissatisfied with the decision of the Resident Magistrate Court on the following two grounds: - That the trial Magistrate erred in law in imposing a non custodial sentence against the respondents, and That the honorable resident Magistrate erred in law in imposing a minimum compensation against the 211 d respondent. At the hearing of the appeal, Mr. Stambuli, the learned State Attorney for the Republic contended that the trial Magistrate to wrongly sentenced the accused persons under the Probation Act and the Community Services Act. The proper procedure was for the convict themselves to apply to serve under the Community Services Act. Thereafter it was the duty of the court to determine whether the accused persons should serve under the Community services Act, 2002 or not. Mr. Stambuli submitted that Section 302 of the Penal Code CAP. 16 R. E. 2002 under which the accused persons were charged imposes a penalty of seven (7) years imprisonment and not otherwise. He argued that the sentence imposed to the respondents cannot deter them to commit other offences in future. In respect of the 2nd ground of appeal Mr. Stambuli contended that even if the order of compensation was within the court's discreation, however the compensation orders given to the accused persons especially the 2nd accused person was too minimal to be Page 2ofll compared to the sum of Tshs. 30,000,000/= that was obtained falsely. The trial Magistrate did not consider the participation of each of the accused in the commission of the said offence. To these contentions, the learned State Attorney prayed the appeal to be allowed. The sentence to be quashed and a proper sentence to be imposed to the respondents. The 1st respondent who was unrepresented argued that the sentence imposed against him was proper because he did not obtain the said sum of Tshs. 26,000,000/=. He argued that the said offence was neither committed by him nor the Agent of Vodacom i Company testified that he committed the alleged offence. The 1st accused submitted the money of the victim was transferred vide the mobile phone of the second accused person. For this reason he prayed the appeal to be dismissed. The 2nd respondent enjoyed the services of Mr. Omary Issa, the learned Advocate. In respect of the first ground of appeal, Mr. Omary submitted that the provisions of Section 3 of the Community Services Act empowers the trial magistrate to order a non custodial sentence, hence the 2nd respondent was properly sentenced. All the procedures to a non custodial service were complied with by the 213 trial magistrate in accordance with the law. As regards Section 302 of the Penal Code CAP. 16 (supra) he contended that criminal justice does not require that always the sentence provided in the statute should be imposed. The trial magistrate was empowered to Page 3 of 11 IZIJ reduce the sentence after considering the fa mitigation. (a)imi Regarding the 2nd ground of appeal, Mr. Om the learned State Attorney for the appellant (b)zmpr order of compensation is within the court's d which three Ye was no need of complaining against it. The tr be appr, judiciously. The court had taken into considera commur, 2nd accused participation in the commission these arguments he prayed the appeal to sentence imposed by the trial court to be uphel (a) Cc The point for determination in this Appc wo respondents, who were then the accused per co rnmi sentence or whether the sentence was in a exceed Community Services Act, Act No. 6 of 2002? 1 (b) ' Services Act No. 6 of 2002 provides in clear tern an offender as "a person convicted and sentenc offence under any written law." Therefore th Omari that Section 3 of the said Act empow (i impose a non custodial sentence is wrong a: provisions of Section 3 of the Community provides for the ways and condition in whi Service Orders can be sought and imposed b person has been convicted and sentenced. It rea Page 4 of 11 liz- The Appellant also complained that the learned trial magistrate entered a non custodial sentence to the convicted persons contrary to Section 302 of the Penal Code (supra). Mr. Omary's argument that criminal justice does not require a Magistrate to impose a sentence as stipulated in the statute is misplaced. It should be noted that Section 302 of the Penal Code provides for the minimum sentence of seven (7) years, it reads:- "Any person who by any false presence and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of offence and is liable to imprisonment for seven years." It should be known that in sentencing jurisdiction, lower courts are tied up by the Minimum Sentences Act, CAP. 90 R. E. 2002. In this matter the circumstances of the case fall under the provisions of Section 6 (1) (c) of the said Minimum Sentences Act. Therefore the trial magistrate improperly sentenced the accused persons. In the case of Yusuf Masudi v. Republic (1983) T. L. R. 128 Chipeta, J:. Zc' Held that:- "Where a sentence passed by a lower court is illegal, a superior court is bound in law to rectify such a sentence, even if the result of such a course being taken is to cause hardship to the convict." Page 9 of 11 In this premises therefore, the trial court's sentence was illegal. The principle of resgestiae too, which embraces not only the actual facts of the transactions and the circumstances surrounding it, but the matters immediately antecedent to and having a direct casual connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence is applicable in the facts of this case. Hence the trial magistrate ought not have ordered compensation of different amounts to the accused persons. For the foregoing reasons the sentence and compensation order imposed upon the respondents or accused persons are hereby varied and quashed. Accordingly the respondents are hereby sentenced to serve a term of five (5) years imprisonment. Order: Each of the respondent should compensate the victim complainant an equally the sum to the total of Tshs. 3OTeee7ei3 / 3 7côao 5)? A.F. Ngwala Judge 08/06/ 2017 Page 10 of 11