19880627 TZCA Dar es Salaam

.... IN THE COURT OF APPEAL OF T.li.NZ.f'.NIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 57 OF 1988 BETWEEN rl'I:IF; DIRECTOR OF PUBLIC PROSECUTIOU:> • APPELLANT AND FIDELIS ERIO. • • 0 • · • • • • . • • .RBSPONJ.Ei:lff (Appeal from the Sentence of the High Court of Tanzania at Mtwara) (Munyera, J.) dated the 19th day of March, 198B :in Economic Crimes Case No. 4 of 1987 JUDGMENT OF THE COURT r,,fA1T',T.lfl:' J A • l.ti.1.UU'U!Jf-!..-!. o This is an appeal by the Republic against the sentence of one day's imprisonment imposed on the respondent consequent upon his conviction for the offence of _Being fot1nd :in unlawful possess ion of g9vernment trophy, to wit, 224 elepb.ant tusks,· valued at shs. 4,660,000/-. The IlBpublic was represented by Nr. I{yaruzi, learned State Attorney, while Mr. Kumwembe ~ learned advocate, appeared for the responderit" before us as he did also in the lower court presided over by Munyera, J. The respondent is a reverend fathe~ in the Homan Catholic Church, and at the material t.ime he was the padre :in charge of Mchuchu Parish at Mikindani, Mtwara District. He was charged ' in connection with the elephant tusks as cJforesa id, and in a unanimous judgement by the Economic Crimes Court he was found guilty. The Republic's complaint was that the trial court took into consideration immaterial factors and left out important ones in sentcmcing the appellant. The second complaint was that the sent<:nce imposed. was manifestly inadequate. Mro Kyaruzi_ submitted that the trial court should have taken :into account ••••oo•••••~/2 ... - 2 - ,·· _3 •" the number of tusks involved and their value, and the prevalance of the grave offence. He also pointed out that under the Wildlife . Conservation Act the minimum sentence is three years and the Ii18Xirnum is seven years imprisonment. Head together with the Economic and Organized. Crime Control Act the maximum imprisonment for this offence is fifteen years. The position is therefore that a minimum sentence of three years is provided for under the Wildlife Conservation Act. Mr. Kumwembe, learned advocate, urged this Court to impose a suspended sentence. He submitted that the respondent did what he did because he was naive and he innocently thought he was acting the good S,.1maritan to Aziz. Aziz is the person who allegedly took the tusks to the respond mt I s residence for safe custody, the villain who has since disappeared into thin air, leaving the respondent hold inf?' the baby, figuratively speaking. The trial court's 'sentence' was about as long as the rest of the judgement. We propose to make only a brief comment on it. Tho trial court opined that the respondent's conduct was innocent · ancl. also made reference to the "sorroundings the accused has grown in till this ag€ of 56 ( which) made his knowledge of such things as trophy laws very limited, that is why he fell an easy prey to rogue Aziz n. With respect 9 we do not think that Roman Catholic priests are necesaarily that naive and gullible, if that was. what the trial court was suggesting. We are satisfied that the respondent is a I well-Gducated and informed person and tr,iat, in getting mixed up with the alleged Aziz he lmew what he was doing 9 and that he ha1d his eyes wide open. The trial court made an oblique reference to the respondent's comparatively secluded life. The respondent's life was not all that ciloistered and we do not agree that, he was all that unwo1 ldly. He was going about visiting people, meeting several people in Hikindani town and even drinking coconut liqour Hith some of them. To expect this Court to believe his story is to be too optimistic. Receiving elephant tusks at about 12 midnight 9 ond. again at 3 a.m., allegedly because il.zizi. did not want to be seem by thieves and taking the tusks there because there_ was • • • 0 ID • O ,ci • • 0 • /3 r 'f ,,,: 3 ;Y no other safe place, do not .impress us as being innocent. It Liay be suugested that the nearby Police station at Mikindani was at least as safe a depository as the respondent's ,official residence. The sad fact is that the respondent lmowingly got mixed. up with a person or persons cannibalizing the national economy. In his position the respondent fully blew that he was straying from th<= ideals he was supposed to personify. He degraded and scandalized his trusted position. It was subnitted that the casual stocking of the Glephant tusks in a banda showed his innocence-. No, it rather illustrated his modus operandi, playing rustic innocence, lmowing and exploiting the respect and awe with which the parish prGraises were being treated. The respondent would hopefully be familiar with the id.eas enunciated. by his rj_ght reverend seniors 9 the Roman Catholic Archbisho~s and Bishops of the then Tongai1yika 9 in their Pastoral Letter of 1960 9 'THE TRU'.IH THAT Ni;J{JJ3 mzN l:'REE 1 , where in it was propounded that 11 0ne cannot be a good Catholic without being a ~?od citizen." rrir. Kumwer.ibe conceded that under the Wildlife Conversation Act there was no discretion to impose tl1e sentenc.e of one day imp9sed. _As it is lmown section 67(2) of the. said Act provides a tariff . - of sentences , ;. Lfor the offence of unlawful possession of Government trophies according to value. The valu~ of the trophies in this case was over four L1illion shillings. Taking in'to account all the releva:qt fa:ctors, and disregarding i1mnaterial considerations, the punishmrnt -·and imposed was negligible,inapp~o~riate,lmqnifestly inadequate. In view of the foregoing 9 we allow the appeal by the Republic. He set aside the sentence of one day imprisontnent and. impose. in its plDce a sentence of five years imprisonment. DATED at Dlu1 ES SM.AAM this 27th day of June, 1988. A. MUSTA];'A . JUSTICE OF APPEAL L. M. MA.KAME JUSTICE OF APPEAL