19890601 TZHC Dar es Salaam 1

I:i.i 'E.:8 i::.:IG~~ C01.J;::1T OF TAlJZJ-1..1.lfIA at DAR ::::~s SALAAM

APPELLATE JTJRISDICTION illG-TI COURT CRifoJ:HAL Il.PFEAL NO .53 OF 1982 ORIGINAL CRIIHNflL _CASE HO. 553 OF 19C9 OF TjJE DISTRICT CdURT OF ILALA DISTRICT -AT KISUTU II3RA:u:Il\1 lIASSAJif IDRAiIIM ooooooooco~oooeoooooooooo APPELLJ:..lTI' Versus TIIE UNITED REPUBLIC 0000 ■ 000 ■ 00000 ■ y000000000 ■ ~0 BES PO:rT.DERT

JUDGEMENT MNZf,.VAS J .K. The accused was, on his ovm unequivocal plea of guilty ll convicted of being in possession of a firearm 2nd amnn.mition c/ss 13(1) and 31(1)(2) and (4) of Capo 223 as ar.iend.ed by the 3rd Schedule to- the Economic and Orga..."ll.sed Crime Control Act - No. 13/04 and sentenced to five years ir.iprisonmento Ile is now appen,ling against the sentence. In his argument before this Court Mr. Ismail 9 lee.rned counsel ./ f;;,r the appellant, submitted the:!:; tl:e sentence of five yeam imposed by the lower court was manifestly ozcessive beariJ?-e; tb.e circumstances under which the appellant c2..;1e to be in possession of the f'irearr.io It was the learned counsel's sub□ ission that al-bhough admiteclly the appellant was unlaw.fu.lly in possession of the firear:,1 there was not the slightest suggestion that he ho.d the firearm for purposes of using it unlawfully a It wns a1~6ue:,d. thnt he had the firearm and amrnuni tions only for purpose of his personal pr') tectiorio The Court was told that t'..::.o nppellant is a Sudanese and a Civil Engineer by profession; worl;:inc wit:1 a charitable organisation which deals with construction of EJ.osq:ubs and schools in the country. It wa;.i further submitted that on the fo,cts of the case t~:e learned tri0-l magistrate erred in principle in sentencing the· appellant to a term of imprisonment., In support of this

argument the Court was referred to the decision by ~;he Court of Appeal i~ SILVANUS NGURUllE (1981) TaLoR.~£0 oooo/2 2 - It was also argued th~t the mo~al turpitute of the appellant was not so great as to· necessi to:te a sentence of -1:nprisonmento To fortify this argwnent the decision in CilANDER SETID VR (1962) EA 523 was quotted. Mre Ismail finally submitted tho,t where .the law gives a::1 o:;)tiori of a fine as opposed to imprisanmen-t, as it was in this case, courts have always imposed a fine especially where an acci.;,sod· is :1, first offender and has pleaded guilts to t:.1e offence - The decision in MITA V REFUBLIC (1969) EoAo 590 was quotted in supr)ort of this a.rg-LlDel1t., The Court was asked to reduce ·cJ.10 sentence of imp:;:-isom1en-t; to one of•a fine., In rebuttal Miss Munisi, learned state attor.aey / vigerously argued against reduction of tho sei1tence of 5 years iE1prisonment on the groimd tl1at the trial. r,1a,gist:rate had absolute discretion uncler · s,ection 29(11) of the Penal Cocle 9 Cap 16, to impose custodial sentence. The learned state attorney fu.r-c>er submitted that offe~1.ces of bandi t;i:r · where offensive weapons arc employed are alarmingly on the increase in the country and as s-..:i.c.h 7 it was argued tlrn.t deterrent sentences as the one imposed by the le.i.med Principal Resident Magistrate in this case are callecl for. The Court was

required to dismiss the appeal against sentence., 'rhere can be no dispute tL.ci,t the offence the appellant stands convicted is a very serious one ii1 this country., It is an offence a punishable with imprisonment forLtoro }1ot exceeding ten years or to a five not exceEJlj.r.g- one hundred. tl-i.ousancl shill~ne-s or to both such five and imprisonn1ent 0 Taking into account the soriouf.noss of the offence tho learned state attorney argued that tho se~-rcence of 5 years imprisonr.J.ent was in no way excessive. Wit1. respect I tend to agroe with the Republic argument that the offence calls for a condi 6n and. even• deterrent sentence;bu-t; with even greater rel;lpect to the learned state attorney in deciding whether or not tho full rigors ':)f the sentence provided should be imposed on o,n accused a court is required not only to look at the gravity of the offence but also see· whether there are mitigating circumstances calling for leniency., In as the present case the accused readily.pleaded guilty to the offence andLsuch facilitate speedy 3 conclusion •of tb.e case w;iich covJ.C::. have taken a long titio to coDplcto had he pleaded not guiltyo Dealing wl th a case where an accused bad pleaded gvil ty in FRA..WCIS Cu"ILEI1IDA V'R (1960) IIoC~D 510 the late Mro Justice Biron said. inter alias "It was to accused's credit that he pleaded guilty to the charges o It is generally, if

not universall?, rcco.:,;nized that an accused. plead.in.; guilty to an offence with which he is cb.argcd qu.alifios him for the exercise of mercy fro,:1 the courto The ren,son is, I think ol)vious, in that on3 of tho r.mi11 objocfa of pu..YJishr1ont is tl1e reformation of an offender. Contrition is the first step towards reformation, and a confession of a crime as opposed to ;)razening it out, is 2.n indication of contrition. Therefore, in such a cascj a court con and. do0s impose a mildc:r: sentence than it would ottierwise have donG 11 o .J..1 • • That Li.Lll.S 18 th0 atti tud0 of courts when· imposing sentence wl1ere an accused has pleaded c;uilt;y- is also broUG'ht out by th~ decision of this court in RV MWAHAIBA d/o Rlu-'lAD~IA1H (1968) TI.C .Do 511 o In t]1c present cas0 7 enc:. as I :1aVC, already r.ientionod above the appella.11t readily pleaded (;uih:y to the offence., :i:Ie. has, but for this offencG, an unblemisJ.:ed record. ai1d the offence is punish~blo with a term of imprisonment o:r a fine or botho . I agree with Miss Tihmisi, leai"J.1od state attorney, that the lea::cned trial E1c.1Gistrate had absolu·ce discretion under section 29(11) of' the Penal Code, Cap 16 of the bws to fine the appGll&"'lt or to sentence hio to a term of impriso;ment. Bu:t the learned. state atton1ey will no doulJt a:;-;ree wi·ch me on reflection that discretion when applied l~- a court

of' justic_e "means sound discretion guarded by lawe It must be eoverned b;r :ru:e, not by humour, it nrust not be arbitrary 7 vague and f arciful; bu.t legal and regular"., In short the court must exercise i·i;s discretionary powers judicially. Over and al)ove the rai tic;atj_n:::; factors above-quottccl which raili tate against heavy _penali ty I tend to agree with ftro Ismail, -learned counsel for the appellant, that ther0 was no suggestion, leave alone evidence, that the pistol was in -c.1:1e possession of the o.ccused for purposes of ba.ndi try. The only offence he has cor.roi tted is that he did not have a licence authoriziJ:1..[; him to own a firer~rra 0 4 If I may add 9 in pA..ssing 1 appellant 1 s activi tios in t!1e country are no bl0 o Ho is said to 1:Jo workinc with a charitable organization which deals with construction of mosques and hosr,i tals in the countrJ - That being the m::turc of his -activi tics in tho countr3r it could be argued 9 2.nd in il\T -riow, reasono,bly so 9 thn.t·he is not the criminal ty-_pe o Toking all the mi tigatinc factors info accou.vit . it is tlle view of this Court tlla·i; the interests of justj_ce will be met if tho sentence of five years imprisonnent is sei; asicleo It is set aside; a.>1d in substitution therefor 2, fine· of shso60j000/= or 6 months iJ"!lprisonment indef2.ul t is impo$eclo "~i·~ No S ~avas JAJI KIO :ifGOZI o Ismn.il for Appellanto Miss l-1unisi for Re/Responclento Dar cs Salaam