19750217 TZHC Dodoma

I f 4-4-1 c * •

IN THE HIGH COURT OF TANZANIA

AT DODOMI

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 165 OF 1973 ORIGINAL CRIMINAL CASE NO.. 376 OF 1972

OF THE DISTRICT COURT OF KONDOA DISTRICT AT XONDOA 6 BEFORE S. H0 MSELE O , . . . . . . .. . . . . DISTRICT MAGISTILLTE CHAROKA i1-1EGOH1. • • • 0 • • • • . . . . .. . . . APPELLLNT

VERSUS THE REPUBLIC. . . . . . . • • • • • . . , •. . .RESPONDENT har: Burglary c/s 294(1) of the Penal Coda Vol. I Cap.. 16 of the Penal Code. 2nd Count: Stealing c/s 265 of the p enal Code.

JUDGENENT NNZAVAS - J. The appellant in this case was charged with and convicted of burglary and stealing c/ss 294(1) and 265 of the Penal Code and sentenced to three and one year imprisonment respectively - concurrent sentences. He is appealing against the conviction and the sentcnce. As observed by this court when admitting the appeal to hearing the appeal against conviction is clearly incompetent as there was more than ample evidence in support of the conviction. The appeal was only admitted for argument as to the propriety of the sentence of 3 years imprisonment in respevt of the offence of burglary. There was from the evidence of the doctor (P.F63 of accused) some doubt as to the exact age of the appellant at the time of his conviction. In his report the doetor says of accused's age: "He appears to be 17 - 18 years of ageJ The Minimum Sentences, Act, 1972 under which the appellant was sentenced to 3 years imprisonment f or the offence of burglarIT says in section 2 that the provisIons of the Minimum Sentences J.ct "shall not apply to a juvenile 1 t. Section 3 of the Act defines a juvenile as "any person under the apparent age of eighteen years On the, evidence of the doctor appellant's age was anything between 17 and .18 years. Where there is a doubt as to an accused's ago the court should resolve the doubt in favour of the ,accusod and hold that he is under the apparent

age of eighteen years and therefore not amenable to the rigors of the Minimum Sentences Act. . . That this is the law is evident from the decision of this court (dealing with the repealed Minimum Sentences Act - CaP4 526) in R vs LJ{DRELS MSAFIRI (1967) H.'O.D.4Q. The learned state attorney concurred with this court's observation that the learned trial magIstrate should have given the accused the benefit of the doubt and find him to be of the apparent age of 18 years but argued that the sentence of 3 years imprisonment should not be interferred with as, he argued, "the offence of burglary is a very serious one." I agree with the learned counsel's submission that burglary is a serious offence; but once an accused is found to be a juvenile and a first offender the relevant question to ask oneself is whether a sentence equivalent to that under the Minimum Sentences Act would be appropriate. It is my view that taking into account the above uItigating factors and the further fact that the stolen bicycle was recovered; this was a case that deserved some leniency. First offender should, unless there arc good reasons to the contrary., be treated with leniency. The sentence of 3 years imrisonnent is accordingly sot aside and in substitution thereof, the accused is sentenced to two years imprisonment. This sentence is to iiin concurrently with the sentence of one year imprisonment on the count of thof. As the accused started serving his senteices on 23/6/73 he has; with remission of sentence for good conduct., already served, more than the sentence of two years imprisonment. I therefore order that the accused he released from custody forthwith unless he is otherwise lawfully hel&. 11 DODOMA N. 17/2/75 JUDGE Appellant - Absent and unrepresented. Mbilinyi for the Rop/Reep.