19801022 TZHC Dar es Salaam

Ill THE HIGH COURT OF TANZANIA AT D.AR ES SAL.A.AM (l?'C) CRIMIN.AL .APPEAL NO. 2 01!' 1980 (From .the deci~ion <?f. the Dis~r~ct C_ourt :ot' Bagamoyo at_Bagamoyo in Criminal/Revision No. 3 of 1980) CHARLES MG.ANGA •••••••••.• .- • • •••• • ••· .- ••• ~- ••••• .APP.ELL.ANT ~ (ORIGINAL ACCUSED) '· . . . versus THE REPUBLIC •• , .......... • .-.-.- ••• -.· •• ·.-.· ••••••·; .- •• RES'PONDENT . . . . (ORIGIN.AL PROS.) .. CHARGE: Cattle thef.t contrary to sections 268 and 265 of the 'Penal Code. JUDG:W.IBNT -M.APIGANO, J. - On 26/11/79 before the!· 'Primary · Court . at '. ·. -· Msoga in Bagamoyo District the appeliant pleaded guilty, quite,. categorically, to stealing one head of cattle. There . and th.E;P. he was convicted· of ' the offence and as a penalty for. the er ime he was cast into prison· for five years. However, the District Court of Bagamoyo called for the record and applying his revisional powers the learned District Magistrate made an order reducing the sentence to three years, on the basis that the sentence which the Primary Court had passed was illegal in that the appellant was a first · offender •. The appellant has appealed to this court against the sentence. He has set out two grounds. First, that the courts below misdirected thanselves by applying the Minimum Sentence .Act, 1972; and secondly, that the sentence of three years' imprisonment imposed by

the District Court was still manifestly excessive. The Republic did not wish to be heard. Quite obviously, there are merits in 'the appeal, Medical evidence shows that the appellant was under 18 years of age at the time of sentencing in the Primary Court. Therefore, under the provisions of the Minimum ' Act, that Act was not applicable to him. I also agri::> 0 with the submission that the sentence of three years was excessive. There were, in my opinion, powerful mitigating factors which the learned Magistrate should have taken into consideration in that respect, These can be listed as: (l) The age of the appellant, (2) his antecedents - he had,· theretofore, an unblemished record, (3) the candour he displeyed - he admitted the commission of the offence right from the very start, and ( 4) the cow in question was recovered on the same dey without any arduous efforts on the part of the owner. Over and over again it has been stressed that such factors operate in favour of an accused person. I am satisfied that the ·sentence of three years is still excessive and that it should be disturbed. Accordingly, the sentence is reduced to such a term as to result into the appellant• s immediate discharge from custody• DAR.E$ S~A~ '>' ,. ,. 22nd OCTOBER, 1980.