20191210 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

MWANZA DISTRICT REGISTRY

ATMWANZA CRIMINAL APPEAL NO. 215 OF 2017 (Originating from Criminal Case Number 319 of 2016 in the Resident Magistrates' Court of Geita) THE DIRECTOR OF PUBLIC PROSECUTIONS ............... APPELLANT

VERSUS 1. CHACHA S/O WAMBURA 2. GERARD S/O JAPHARY 3. SAID S/O JACKSON .I . . . . . . . . . . . . . . .

RESPONDENT '.Q ,ft1l; ----

EXPARTE JUDGMENT 4.11 & 10.12.2019 RUMANYIKA, J.: The appeal is against sentence of six (6) months conditional -- discharge imposed on 23.6.2016 on Chacha Wambura, Gerard Japhary and Said Jackson (the 1st, 2nd and 3rd respondents) respectively, it appears following their unequivocal plea of guilty, according to records the latter having been convicted for the charges of unlawful entry in the National Park and being found in possession of weapon therein. Not happy, the Director of Public prosecutions (the appellant) and had a ground of appeal. Namely: That, the trial magistrate erred in 1 \_, law and fact having failed to sentence the respondents according to;law. I • Ms Angelina Nchalla learned senior state attorney appeared for the appellant. When, from the beginning the appeal was called on, the respondents were not traced and served. Irrespective of several and repeated attempts. Long at last by order of the court - 9.10.2019, the respondents were, according to records, but through Nipashe Local Newspaper served on 19.10.2019. Pursuant to my order of 4.11.2019, I dispensed with their appearance. Hence the exparte judgment. 'fit In a nutshell Ms. Angelina Nchalla learned senior state attorney •· submitted that contrary to law and against the principles of criminology and penology, the sentence was too lenient to save the purposes. That with respect to the 1st count, the

sentence should not have exceeded a fine of shs. 10,000/= or in default a term of one (1) year·in jail or both the fine , and custodial sentence. For the 2nd count a fine of shs. 20,000/= or 2 years in jail in default or both the fine and custodial sentence. That is all. The issue is whether or not the sentence was too lenient and therefore unlawful. The respondents on their unequivocal plea of guilty having been properly convicted. The respondents may have been the 1st offenders yes! Therefore according to principles of sentencing among others a mitigating factor. Moreover, it is dictates of criminology and penology, more importantly the 2 \ ! • • fact that on conviction, a sentence should be repellant or reformative. It follows therefore that discretional as it is, powers of sentencing by judicial officers which cannot also take on board interests of the victim of crime and that of the society for that matter they are useless to say the list. Much as it is an undeniable fact that criminals were products of the societies. Like road traffic laws forbid unnecessary beyond limit and below speeds, 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 and the like were in the increase, the too lenient sentence is enhanced as follows; one year custodial sentence (for the 1st count) and two years (for the 2nd count). The sentences run concurrently. Appeal is allowed. Warrant of arrest with respect to the respondents to be issued . It is ordered accordingly. 3 '.i Delivered under my hand and seal of the court in chambers. This 10.12.2019 in the absence of both parties. -- - 4