Erasto 2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA CRIMINAL APPEAL NO. 83 OF 2023 (Arising from Criminal Case No. 106 of2023 in the District Court of Kaiiua) ERASTO ADAM @ NJOWOKA................................ 1st APPELLANT WENSLAUS VICENT @ MACHALI......................... 2nd APPELLANT VERSUS THE REPUBLIC....................................................... RESPONDENT JUDGMENT Date of Last Order: 08/04/2024 Date ofJudgment: 06/05/2024 KADILU, J. Before the District Court of Kaiiua, Erasto Adam @ Njowoka, Wenslaus Vicent @ Machali, and 2 others who did not appeal were charged with two counts namely, an unlawful entry in a Game Reserve contrary to Section 15 (1), (2) of the Wildlife Conservation Act, [Cap. 283, R.E. 2022], and the second count was unlawful fishing in a Game Reserve, contrary to Section 19 (1) and (2) (d) of the same law. It was stated in the particulars of the offences that on the 29th day of August 2023 during morning hours at Ziwa Sagara area, Luganzo Tongwe Game Reserve within Kaiiua District in Tabora Region, the appellants entered into a Game Reserve and did fishing by using a fishing net without a valid permit from the Director of Wildlife. After the charge was read over and explained to them, each pleaded guilty to both counts. The court convicted them based on their own plea of guilty. For the first count, they were sentenced to serve two (2) years imprisonment each, and for the second count, each was imprisoned for six months. The appellants were dissatisfied with both the conviction and sentence. i They appealed to this court based on the following grounds of appeal: 1. That, the trial Court erred in law and fact by convicting and sentencing the appellants without giving them an option to pay fines contrary to the law, considering that the appellants were first offenders. 2. That, in the second count, the appellants were not found with any animal or fish. When the appeal came up for hearing, the appellants appeared in persons as they had no legal representation whereas the respondent, was represented by Ms. Tunosye Luketa, learned State Attorney. Submitting against the appeal, the learned State Attorney submitted that the first ground of appeal is baseless because Section 15 (2) of the Wildlife Conservation Act allows a sentence of fine, imprisonment, or both fine and imprisonment. She added that Section 19 of the same Act provides for fines and imprisonment so, the court had the discretion to order the appellants to pay fines or serve an imprisonment sentence or both. The learned State Attorney argued that the trial Magistrate exercised his discretion properly. Ms. Tunosye opined that the first ground of appeal is unfounded and deserves to be dismissed. On the second ground of appeal, Ms. Tunosye argued that the appellants were convicted and sentenced after they pleaded guilty. They were thus, unjustified to appeal against the conviction where they are challenging matters of evidence. She elaborated that the record shows that the appellants were found with a fishing net, and when the charge and the facts constituting the charged offences were read over to them, they admitted. The appellants submitted that when they were arrested, they did not know that they were in the game reserve. They also thought their arrest was in connection with fishing without licenses. 2 They told this court that after the arrest, they expected that after the trial, they would be required to pay fines. They added that the game reserve officer advised them to admit having conducted fishing without licenses so they would be ordered to pay fines. After considering the submissions of both parties and going through the records of the trial court, I find merit in the argument by Ms. Tunosye, that since the appellants were convicted on their own plea of guilty, they cannot challenge the conviction that resulted therefrom. To the view of this court, it is proper to state here that, the provision of the law governing the taking of a plea of guilty of an accused person to the charged offence is Section 228 (2) of the Criminal Procedure Act, [Cap 20 R.E. 2022] which states as follows: "If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary." On the first ground of appeal, the record is clear that after having pleaded guilty, the appellants were sentenced to serve two years imprisonment. As for the second count, they were ordered to serve six months imprisonment without an option of paying fines. The appellants' complaint on this ground of appeal is that the provision under which they were charged provides for the option of a fine. For clarity purposes, Section 15 (1), (2) of the Wildlife Conservation Act provides as hereunder: "15 (1)- Any person other than a person traveling through the reserve along a highway or designated waterway shall not enter a game reserve except by and in accordance with the written authority of the Director previously sought and obtained. (2) Any person who contravenes any provision of this section or any condition attached to any authority granted under subsection (1), commitsan offence andon conviction shall be liable 3 to a fine of not less than one hundred thousand shillings, but not exceeding five hundred thousand shillings or to imprisonment for a term of not less than one year but not exceeding three years or to both." The provision quoted above provides for the imposition of a fine in the first instance but does not bar the trial court from ordering an imprisonment sentence. For that matter, the trial court had the discretion to impose any of the sentences provided under Section 15 (2), be it to pay fines, to serve an imprisonment term, or both fine and imprisonment after considering the circumstances in which the offence was committed. Ordinarily, for a sentence to be meaningful, it should cause regret to the offender by making him feel the pinch, and it should cause others to fear similar consequences. In sentencing the appellants, the learned trial Magistrate was clear that these offences were prevalent in that area and that there was a need for deterrence. The appellants submitted that they expected to be ordered to pay fines after they pleaded guilty to the charged offences. It implies that it could be well with them if they were sentenced to pay fines instead of a custodial penalty. In my view, that dilutes the entire purpose of sentencing, which was not the intention of the Legislators when enacting Section 15 of the Wildlife Conservation Act. If the offender can just commit an offence after having calculated the possible penalty and finding it bearable, imposing the sentence previously hoped by the offender renders the penalty useless. Thus, the first ground of the appeal has failed. Concerning the second ground of the appeal, Section 19 of the Wildlife Conservation Act provides that: person shall not, save with the permission in writing of the Director, previously sought and obtained and in the manner specified in 4 writing, hunt, burn, capture, kill, wound or molest any animal or fish in any game reserve, game-controlled area or wetlands reserve. (2) Any person who contravenes the provisions of this section or any condition attached to any authority granted under subsection (1) commits an offence and on conviction shall be liable- (a) N/A (b) N/A (c) N/A (d) in the case ofany other offence, to a fine ofnot less than two hundred thousand shillings but not exceeding five hundred thousand shillings or to imprisonment for a term ofnot less than one month but not exceeding six months." In the second count, the appellants were convicted of unlawful fishing in a Game Reserve and they are concerned as to why the trial court had sentenced them to serve the imprisonment instead of ordering them to pay fines as provided in the above-quoted provisions. I am conscious of the legal position laid down in the case of Salum Shabani v R, [1985] TLR 71 that where the Legislature has given an option of a fine or imprisonment, the court when imposing a sentence must impose imprisonment after the convict has failed to pay a fine. Nonetheless, it is also a settled principle in our jurisdiction that each case is decided considering its peculiar facts and circumstances. As hinted earlier, in the circumstances of this appeal, it was inappropriate for the trial court to impose fines on the appellants as an alternative to imprisonment. The unlawful entry to a game reserve is punishable by a fine of not less than one hundred thousand shillings, but not exceeding five hundred thousand shillings, or imprisonment for a term of not less than one year but not exceeding three years or both. In this case, the appellants were sentenced to two years imprisonment for unlawful entry to a game reserve and for unlawful fishing in a game 5 reserve, they were sentenced to six months imprisonment although the offence attracts a sentence of a fine of not less than two hundred thousand shillings but not exceeding five hundred thousand shillings or imprisonment for a term of not less than one month but not exceeding six months. Therefore, this court finds that the trial court was justified in sentencing the appellants to serve the custodial sentence of two years and six months for both counts without giving them the option of paying the fines, which they expected and liked. This court arrived at this finding after being satisfied that the appellants pleaded guilty to the charges. Section 360 (1) of the CPA provides that no appeal is allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. I have not identified any illegality in the sentence imposed by the trial court. The only grievance by the appellants is that the sentence has not met their expectations. The appellants' argument that they were unaware that they were fishing in a game reserve is an afterthought because when the charge was read over to them, they admitted it. Further, when the facts constituting the charged offences were read to them after pleading guilty, they admitted everything as correct. They cannot then be heard complaining that they were not found with any animal or fish. During the hearing of the appeal, the appellants submitted that when they were arrested, they hoped that they would be charged with unlawful fishing in a game reserve as they had no fishing permits. It implies that the appellants knew that they were fishing in a game reserve 6 illegally which is why they were so ready to pay fines. It is pertinent to note here that the powers of an appeal court in dealing with sentence imposed by the trial court are restricted. See Fatuma Nurdin v R., Criminal Appeal No. 418 of 2013 in which the Court of Appeal stated that: "It is settled law that an appellate court has a limited role in sentencing. The governing principles that must be taken into consideration are; (i) Sentencing is a function that the legislature entrusts to the trialjudge or magistrate; (ii) The sentencing decision is a decision made in the exercise ofdiscretion; (Hi) An appeal court may only intervene where the exercise of the sentencing discretion is vitiated by error, such that there has been no lawful exercise of that discretion." For the foregoing analysis, I find no justification for interfering with the sentences imposed by the trial court on the appellants. Consequently, I dismiss the appeal in its entirety for lack of merit. The right of appeal is fully explained. It is so ordered. KADILU/M.J., JUDGE 06/05/2024 Judgement delivered in chamber on the 6th Day of May 2024 in the presence of appellants and Ms. Suzan Barnabas, Aziza Mfinanga, and 7