19920812 TZHC Mwanza

,IN THE HIGH COURT OF TANZANIA \, \ AT MvVAlifZA \. . . APPELLATE JURISDICTION ' HIGH COURT CRIMINAL APPEAL NO. 95 OF 1991 ORIGINAL CRiliIN:AL CASE NO. 267 OF 1989 . OF THE DISTRICT COURT OF 1\1.iW;\NZA DISTRICT AT MWANZA BEFORE: N. G. MZUN"fi. ESQ.?·. RESIDE1'JT MAGISTRATE D.P.P. • • • • • • • APPELL:\NT (Original Presecutor) .. ,\LBERT ISHIMALL'\. , • • · - RESPONDENT : ( Original- Aooused) ---JUDGMENT ..------·----· CHIPETA, J. This is an appeal by the Director of Public Prosecutions \ against sentences passed by the trial court. \ The respondent, Albert Ishimailia, was convicted of the offences of forgery (16 counts) 7 uttering false documents (16 q~unts) and ste- aling by public servant (16 counts) contrary toss. 338; 342, and 265 and 270 of the Penal Code, respectively. He vas acquitted on the 49th count which wa.s 1.chargod in the alternative. In sentonoing the respondent, the learned sentymoing magistrate sta tcd as follows: 11(1·) All sixteen counts of forgery I sentence him to imprisonment term of oner! year for 03.Ch oount. (ii) All sixtc-:m. counts of uttering false doouments I sentence him to imprisonment of one year for re.ch count. 1.. (iii) All six-teen counts of stooling by/; ~ publicJ servant contrary to sections' 265 ·, .. and 270 of the Penal Code I sentonce·him to· imprisonment term of throe (3) · yoars. "_ The sentences were ordered to run consecutively. Before ·r deal with t~e substantive questions of this appeal, there is one observation_hmuld ·like to Ill3.kc. The learned Ill3.gistrate purported to aoqui t the respondent on the 49th count, which h.a:d been charged in the al t~rnative. .This ve.s after hu had convicted the respondent on the first 48 counts. In this, with unfeigned respect, the learned ins.gistratc erred. It is now settlud law that whero there are alternativo counts and~ conviction is onter0d on one count, then no finding should bo nade on tho other (S~e Wachi~ Njc~ v. R".J . • . . . •/2 2 (1954) E.A.C.A. 398; _Adamu MwambalR.fu_v~~ r1966 7 E. A. 459; and R~p_½_~ic v. John K3.tua..L.· /_181_] TLR. 259). I now turn to the substantive n::.-.ttors of the appeal. I ruspectfully .3.greo with Mr. Malamsm., loomed state e.ttornuy, and gr-9.cotlully coneeded by Mr. Nasimirc, 1G9.rned advocate for the ruspondent, that f. l sontenees passed· by the sontuncing nngistratc in rosp~ct of the 16 counts of stooling by public sorvG.nt would appear to be omnibus. It may woll be that vas an overGight on the p3.rt of the: sentencing mgistrato, but th"' language he used eert'linly :.; moa~s that he pasaud an omnibus sentento for tho,3e 1E eounts •• In this,he erred. When a person h3.s been IQQVi9ted on ➔ moro than on0 count, h8 must bu sentenood·!n e::i.eh eount. (Sec N.2!h'lnf:ll Nkulik½:_o v. Republie-/-1982_7 ,TLit 129 9 and Burton Mwakip0si1e v Rcp_ublio 2 /~-1965_/E. A. 407). I alao roapcctUflly agrt:..:.: with. both lu3.rned eounsel th'3. t the sentence: in respect of eount;J 7, 9, . 28, and 30 arc: illegal in th3. t they contravened s. 5(d) of the Minim~ Sentences ,\ct, 1972, As thu amounts s tolvn in eath of those oounts was in exeE:as of Shs. 5, 000/= _the re£>pondent deserved a minimum sentonee of five· years imprisonment on each of ithose eount1:'~ Thc,r,.:st of the sentences w1=:r8 ls.wful, but whethor or not they weiappropri8.tu is a diffur~nt ·question which I propose to d~3.l with later in this judgment. Bufore I proceed tq deal with the question of·the 2ppropriaten038 of those sentences snd reetifica tion of tho illegal on-.:s ~ I would like to diGpo.ae of the question whether th0 order th9.t the scmtences should run consecutively was fair 8.nd just in the circum-3. t9.nees of this :c case. It is not 9.lways easy to docido when_sentences should be ordered to run con_currently or tonset\<ttivoly. It soons to me, however, that" t a.s i.\ general rulo; where tho of.fences were committed in the course of the same transaction, or wher~ thl;}y are: ·rela. ted or cogm. te offences 9 or are soparate parta of onl.:l whole or wheru they are :1 S8ries of sopar.3.to off~nces then, exeept in extra ~ordiru.Jily circumst~nces, tho scmtences :i:i°r1ould be ordi.:lrc:d to run concu.rrcntly 9 particularly if the · offenc0s are tried in a single trial. (See .Robc:ri; s/o .l'!:Y~ngsre v.R., (1976) H. c. D. n. 26; and Mangisto V. R,~968) H.C~D. n.154), But where thG o:tf-c::c~ 3.r\J quite different, both in •time, character,· a.nd hw, the sentences should norlll3.Ily be ordered to· run conseoutiv~ly. (Seec F:rancis Mwend9. v ~-~..1.., t· -1980 .1. TLR 86 • The foregoing, however, 9.ro only gonural -rul1;.-s. There nny be fircumst'.3.nces in whith a ~ou.r.t m'-?.y foel compelled to impose consecutive 0 •• 0 ./3 f 3 sentences. (Bee Mw.203099 S'1.lehe Abd:clhh v. Republ1:_~_c.A.T. Crimin'.'.l Appe'J.l No. 11 of 1981- unreported). With those principles in mind, I proceed to consider whether the order of the sentencing court thJ.t the $entences should run consecutivaj.y vr:.s Llwful :ind/or just in the circumst:mces •.· Strictly spe'.:1.king, tln t s order v,'".s l:l wful under the provis (.'.i.:01y9f s. 36 of the Pernl Code. But vc-.s the order just in the circumsto..nces?. The effect of tho tri:J.l court's ko order is th:i.t the 2ppcll~nt ¥all serve a subsbntive term of 2bout 80 ye::.rs imprisom:ient. Th::l.t, eerfainly, socs ::1ipinst the grJ.in of justice ::i.nd connon sunse. I ~coordngily hold trot the order making the sentences run consecutively resulted in :J. fo.ilure of justice. The next ·q.uestion for co113itl\.:lr::. tion is ,whether the s.c:::ntences in respect of counts other thm ;those fcJ_lg_ii:. 3 . within the ':lmbi t of thu l:Iinimum Sentences Aet, 1972, net the justice of the C3.$e. It is true th~t the respondent v,r.,.s a first offender. But there wer~ ~ 0 gr~v~ting circurast:J.nces, m.oely, the f~ct th'.lt the respondent used~ lot, of ingcnui ty inp-.:r :petrn. ting the offencus, tho f;,ct th:J. t he · -:i. bu.:rnd his office: o.s c:. public officer, the fact tln t he tried to hoodwink the court and thus thwart justice by m'.lnuf9.cturing evidence purporting to show tho. t he ms dro.d, and the fact thc1 t after he had been re-arrested, he ~ again·_ trioc1 to hoodwink the court by so.ying th2. t he w1s not the accused in this cs.se but ve.s only an ic1enti_C3,l t¥dn-brother who ha.d nothing to do with the rose. Those 3.ggr.~vating f2ctors cle~rly outweighed tho nitigatine; factors. Thosesentencos, therefore, were so ronifestly ino.deqmtc as to justify interference by this court. For the foregoing re9,sons, ::i.11 the sentences p3.slied by the triJ.l court o.re hereby set ~side ~nd substitut'ed therefor are tho following sentences: on each of the sixteen (16)counts of forgery the respondent is sentenced to five (5) ye'3.rs inprisonment; on o::i.ch of tho sixteen (16) counts of uttering false docunents he i~ sentenced to five (5) ye::i.rs imprisonment. The two ,_; -.;t-~ of sentences sh1ll run concurrently. On 03.ch of counts 7, 9, 26, ~nd 30" the respondent is sentenced to seven (7)-ye.~rs imprisonnent, 2nd on e::i.ch the rest of the counts he is sentenced to three ye3,rs -imprisonment. The sentences in this set shall also run concurrently, but the two sets of concurrent sentences shall run consecutively. In effect, the appellant shall serve a su st~ntive term of 12 ye:1rs inprisonment. · To the extent indio:i te d ,'.! bov1J, thi,::; nppv.'J.l ,Ju~ceu(l..:. /J/1/jii/dLr~ B. D. CHIPETJ\. JUDGE 4 Judgment delivcr:_ed in court .at Mvvo.n·z.;1. 'this 12th day of' August, 1992. JUDGE ----- . Appellant: Absent, represented by Mr. Nasimire who is absent. Mr. Muna: S1;3. to At:corney for Republic.