edwini remi another vs republic 2007 tzhc 322 31 october 2007

IN THE HIGH COURT OF TANZANIA

AT MOSHI (DC) CRIMINAL APPEAL NO. 42 OF 2007 [C/F DC MOSHI CR. CASE NO. 45/2005] 1. E D W I N I R E M I } 2. KALIST PETER } ------------- APPELLANTS

VERSUS THE REPUBLIC-----------------RESPONDENT

JUDGMENT HON. J I J NDU, J. The Appellants, in the trial court, together with other two accused persons who were acquitted by the said court were charged with the offence o f Obtaining Money by false pretence c/s 302 o f the Penal Code, Cap. 16, Vol. 1 o f the laws (now' Cap. 20 R.E. 2002). The particulars o f the offence in the charge sheet were that the Appellants (then 1st and 2nd accused respectively) together with the said other two accused persons jointly and together between 22nd day o f December, lh 2004 and 9 day o f January, 2005 in noon time at M arangu Ashira Village in Moshi District, Kilimanjaro Region by false pretence did obtain cash T.shs. 1,629,000/= from one Paster Elirehema Godfrey. I laving heard the evidence o f the prosecution witnesses and the defence witnesses, the trial magistrate found the Appellants guilty o f the charged offence. The charge as established by the prosecution side was to the effect that the 1st Appellant had falsely presented him self to the complainant (PW. 1) that he was in a position to secure admission for children in M azinde Juu Secondary School and Kifungilo Girls Secondary School. As a result, the 1st Appellant obtained various amounts o f money from the complainant and some parents only later on to discover that it was false and the 1st Appellant used the m oney for his own use. 1le had instructed the 2nd Appellant to go to

the com plainant ( P W .l) to collect the balance money whereby he was caught and showed where the 1st Appellant had th hidden, that is in the house o f the 4 accused (not an appellant herein). The trial magistrate having been satisfied that the prosecution side had proved the charge against the Appellants beyond reasonable doubt, she convicted them and sentenced them to seven (7) years imprisonment. I laving been satisfied with conviction but aggrieved with the sentence, the Appellants have appealed to this court against the sentence listing two (2) grounds o f appeal in their Petition o f Appeal namely:- (1 )That, the learned trial magistrate grossly erred both in law and fact for giving such excessive sentence upon their conviction. (2) That, the learned trial magistrate erred in law and fact for not considering the Appellants mitigation before the sentence as it had merit by itself. In their Petition o f Appeal, they prayed to this court to be lenient, allow their appeal and re-consider the sentence passed against the by the trial court. On the date o f hearing o f the appeal, that is on 17/9/2007, the Appellants simply slated that what they had stated in their grounds o f appeal in the Petition o f Appeal sufficed to be their arguments in pursuance o f their appeal before this court. They so prayed to adopt. On the other hand, Mr. Juma, learned State Attorney, who acted

for the Respondent/Republic supported the sentence that the trial magistrate had inflicted upon the Appellants. In other words, he opposed the appeal filed by the Appellants in this court. In the first ground o f appeal, as quoted above, the Appellants contend that ihe trial magistrate erred in law and fact by inflicting excessive sentence on them. Was the sentence o f seven (7) years imprisonment inflicted on the Appellants in law excessive? T his is the issue to be considered and determ ined by this court in this ground o f appeal. Mr. Juma, learned State Attorney in his reply submission has ably exhausted the issue as I shall shortly demonstrated in this Judgment. As stated by Mr. Juma, in his submission, Section 302 o f the Penal Code, Cap. 20 R.R. 2002 on which the Appellants were charged, convicted and sentenced imposes a discretionary duty on the trial court to assess and impose imprisonment sentence up to a maxim um limit o f seven years. This is evident from the wording o f the said provision o f law. It provides as follows - “302. Any person who by false pretence with intent to defraud obtains from any other person anything capable o f being stolen or induces any other person to deliver to any person anything capable o f being stolen is guilty o f an offence and is liable to imprisonment for seven years” I am also very settled in my mind that the trial magistrate in

exercising her discretionary duty when sentencing the Appellants to seven years imprisonment, that is to the maximum limit provided by the said provision o f law, she gave her reasons for doing so as shown in her judgm ent, therefore he acted judicially as by law required. j There is abundant proof that the trial magistrate in imposing the said maxi mum sentence on the Appellants she had exercised her discretion duty judicially as by law required. In her Judgm ent (page 18 - 19) she stated as follows - “ I find that through granting stiff punishm ent the accused persons will get a lesson as well to others o f the same behaviour comm only known as “ M A T A P E L I” who in these days are increasing day after day” She also stated that the act o f the Appellants o f imposing them selves as pastors or deacons showed their bad habit o f involving religion to effect their end act o f obtaining money by false presence. I quite agree with the submission o f Mr. .luma, that religion is a very respectable faith, it does not deserve false pretence or intervention as the Appellants did which leads to an unbecom ing conduct in the society by “ M A T A PE L I” as stated by the trial magistrate in her Judgm ent when sentencing the Appellants. Further, in my considered view, the Appellants deserved the m axim um sentence that was imposed on them because the money which the they had obtained by

false pretence from the com plainant was intended to be used as assistance to vulnerable children but the Appellants in their false pretence contended that they would have sent the children to M azinde Juu Secondary School and Kifungilo Girls Secondary School but instead they used the money for their own benefit. Mr. Juma, learned State Attorney has brought to my attention the stand o f the Court o f Appeal in respect o f an appeal such as the present one which seeks to challenge the discretion o f a trial court in imposing a sentence on an accused person. The said Court, in the case o f Benedetta Paul Vs. R . [1992] TLR 97 stated as follows - “ An appellate court should not interfere with the discretion exercised by a trial judge as to sentence exccpt in such cases where it appears that in assessing sentence the judge has acted on a wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive.” I hold that for the reasons stated by the trial magistrate when sentencing the Appellants in her judgm ent, I need not interfere with her discretionary duty in imposing the maxim um sentence o f seven years imprisonm ent provided for under Section 302 o f the Penal Code, Cap. 20 R.E. 2002 for the offence they were charged with under the said provision o f law in the trial court. Therefore, I hold ihai the llrst ground o f appeal has no merit. The

sentence o f seven years imprisonment imposed on the Appellants by the trial magistrate was proper according to law. In the second ground o f appeal, the Appellants, contend that the learned trial magistrate misdirected herself by not considering the mitigation factors they had stated before sentencing them to the above m entioned punishment. O n page 18 o f the Judgm ent o f the trial court, it shows that the 1st A ppellant in his mitigation stated that he was suffering from diabetes, and appendix and that he was a first born so her m other depended on him and that his family too depended on him. He also stated that he was a first offender and had also called upon the trial court to consider the days he had stayed in prison. The second Appellant in his mitigation had alleged that he was suffering from TB and foot problem and that he was a first offender. In my considered view, had the Appellants pleaded guilty to the offence in the trial court, then upon being convicted, the trial magistrate ought to have considered sympathetically to their mitigation factors. The Court o f Appeal in Benadctta’s case (supra) stated as follows - “ Had the learned Judge taken into account the A ppellant’s plea o f guilty to the offence with which she was charged the Judge would no doubt have found that the Appellant was entitled to a much more lenient sentence then to sentence o f four years im

posed” . In the present case under appeal, the Appellants though know ing that they had obtained money from the complainant by false pretence did not wish to admit the same until they were found guilty and convicted by the trial court. In such trend, it is doubtful that the trial magistrate would be persuaded to be lenient to the Appellants when it came to sentencing. Further, some o f the mitigation factors that they had stated in the trial court such as having dependants and families are factors that would have restrained them from com m itting the offence that they had been charged with. This position was stated in the case o f A. M pelem ba Vs. R [1990] T L R 2. H aving committed the offence and after being convicted, the trial magistrate had discretion, which in this case did exercise the same judicially to arrive at the sentence she had inflicted on the Appellants mitigation factors included thereof. Therefore, I hold that the second ground o f appeal has no merit. In the upshot, I hold that the appeal filed by the Appellants has no merit. I hereby dismiss the same. I uphold the sentence imposed on the Appellants by the trial magistrate o f seven (7) years imprisonment. They should continue to serve the same. It is so ordered. L . / F.A.R. JUNDU

JUDGE 31/10/2007 Right o f Appeal Explained. » F.A.R. JUNDU

JUDGE 31/10/2007 3 1 . 10.2007 Coram: F.A.R. Jundu, J. l o r the I s* Appellant: present For the 2IKl Appellant: present l:or the Respondent: Mr. M augo, State Attorney C/C: Muyungi C o u rt: Judgm ent delivered in the presence o f the 1st and 2nd Appellants and in ^ Mr. Maugo, learned State Attorney for the Respondent/Republic. F.A.R. JUNDU

JUDGE 31/10/2007

AT M O S H I