20191210 TZHC Mwanza2

., f IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ~ft} ,,, ..... ........,. AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 208 OF 2017 (Original Criminal Case No. 540 of 2016 of the District Court of Geita District at Geita) THE DIRECTOR OF PUBLIC PROSECUTIONS .............. APPELLANT VERSUS KUSEKWA S/0 JOHN ........................................ 1 ST RESPONDENT KANSIKILA S/0 VIRAHONZA ........................... 2ND RESPONDENT BAHATI S/0 MASALU ...................................... 3RD RESPONDENT EXPARTE JUDGMENT 04/11 & 10/12/2019 RUMANYIKA, J.: All began in the Resident Magistrate's Court of Geita (the trial court) whereby, having been charged and convicted on 28/12/2016 for offences of Unlawful entry in the National Park (1 st count) and Unlawful possession of monofilament Contrary to Sections 210 (2) and 29(1) of the National Park Cap 282 R.E. 2002 and Regulations 66 (1) (a) and 66 (4) of the Fisheris Regulations GN No. 308 of 2009, Kusekwa John and 2 Others (the respondents) were sentenced to one year conditional discharge which sentence the Director of Public Prosecutions (the appellant) was not happy with. Hence the single ground appeal.· That, the trial m.agistrate erred in law as he failed to sentence the respondents according to law. 1 Ms. Angelina Nchalla learned senior state attorney appeared for the appellant. When, from the beginning the appeal was called on, and there was no traces of the respondents, with effect from 13/06/2019, but irrespective of several and repeated attempts to serve them by publication. Now, according to records them having been served through Nipashe Local Newspaper on 19/10/2019, pursuant to my order of 04/11/2019 the respondents' appearance was dispensed with. Hence the exparte judgment. In a nutshell, Ms. Angelina Nchalla senior state attorney submitted that by all means and standards a mere conditional discharge sentence was contrary to law under the circumstances. Much as, for the 1st count, on conviction the respondents should have patd a fine of Shs. 10,000/= or in default a year imprisonment or both a fine of Shs. 2,000,000/= and a custodial sentence of 3 years in default (2 nd count). That is all. The issue is whether or not the sentence was too lenient and unlawful. Much as the conviction was proper. The respdndents may have been the 1st offenders_, therefore a mitigating factor yes! But it is both dictates of criminology and penology, and more so that an effective sentence should be repellant and/or reformative. It follows therefore that discretional as it is, powers of sentencing by judicial officers which could not take on board interests of the victim of crime and that of the society for that matter, ~hey were useless to say the least. Much as it is an undeniable fact that criminals are products of the societies. 2 The road traffic laws forbid unnecessary beyond limit and also bellow speed, just like sentences imposed by courts of law should not be too lenient or excessive to defeat the purposes. It follows therefore that now that it is common knowledge that offences against wildlife were rampant, and in his findings the learned trial resident magistrate appreciated it, the too lenient sentence is enhanced to one year in jail (for the 1st count) and two years in jail (for the 2nd count). Appeal is allowed. Warrant of arrest to be issued against the respondents. It is ordered accordingly. Right of appeal to be explained. S. M. 3 ~ Delivered under my hand and seal of the court in chambers. This 10/12/2019 in the absence of both parties. However, let the appellant OPP be dully informed for the enforcement of the said substitute sentence. -··--·---------- F. H. MAHIMBALI DEPUTY REGISTRAR 10/12/2019 4