19870824 TZHC Dar es Salaam

IN TEE marr COURT OF TANZANIA AT DAR ES $ALA.AM APPELLATE JURISDICTION .· •. ' , APPEAL NO. 44 OF·1987J HIGH COURT CIDNINAL {Original Criminal Case No.541 of 1985 of the Dist.riot Court ·of Morogoro Distriot at Morogoro) ·\.- t:#:t JUMANNE IDD I• • • •••••• • • • • • • ~ ~ •• • • • •. • • • • •• • • • • •e • APPELLANT '--,,-:- versus l i . l THE UNITED REPUBLIC••••••••••·•• .. • .. ••••••••••••••RESPONDENT JUDGMENT . BAHATi 1 J •. Thie is a.n appeal by Jumanne Idd.i against conviction and sentence for the offences of btu:-gla:cy- contrary to section 294(1) of the Pena.1 Code, and stealing contrary to section 265 of the · Penal Code. There is no merit in this appeal against conv:ih1iion beoause there is clear evidence tQ the effect that the appellant was Oa-t\:,~t •~red-:-}l.anded while with the stolen i terns and only ,a short while after breaking into the complainant's house• Even while admitting the ~peal I noted tha.t there seemed to-be no merit in the t\ -peal against oonviction. Indeed I ad.mi tted this appeal only for the purpose of considering the sentence. The appeal a.ga.ipst '. coffllietion is therefore dismissed. rfi th regard to the appeal a.::.,~inst sentence the lea.med State . Attorney who ¥Jpe1¢ed in this appeal argued tha.t the Resident Magist~te shcruld have sent the reoord to the High Cotn't for confirmation. The provisions of section 170 show that for a.n offence under the Minimum Sentenoes Act a subordir...a.te Court-may pass a aerttenoe, if, SU.Oh sentence is authorised by law, of imprl~ sonment for SU.oh offenoe for a:tem not exceeding 8 years. Subsection (2) goes on to s~ that such sentence which exceeds the minimum term of imprisonment prescribed. in the Minimum Sentences Act, shall not be oarried into effeot, until the record of the case has bedn t~a.nsmitted to the Iligh Court and the sentence has been confixmed by ·a. Judge. In this case the sentence which was imposed was that of 7 years' imprisonment. There is no doubt about the legality of the i.' • sentenoa.· The only thing which must be done is for this oourt to confirm the sentenoe if it is satisfied that it is not excessive• . The question which arises now, therefore, is whether the sentence of seven years 1 imprisonment for the offence of burgla.:ry is exoe~aivee I •••••••• /2 ,,!h•.J:. In this case· the appellant broke into the dwelling house of the oomplaine.nt at around 12.30.a.m. He. then stole a.record player and . a bedsheet valued at about 3,470L.7!c. There is 'ft&- ~Videnoe that he .: --~-r~-~T~;-'·: · was a.rmed with anything. In the oi~sta.noea · of this case I would . .,, say that a sentence of imprisonment for seven·-~a ia. excessive. I ~~ ru1. reduce it to four years t imprisonment. The,·$e,l'!-tenoe (.?:~ ... . "✓ : of -;~ven • •• #. •• • •• •• • , yea.rs ' imprisonment is set a.side and I substi t-u.te in its stead., one~;of. . •~, .,. :·;~T: ~ four years' im:;,risOMent. ,, ..:,.,- The last observation I wish to make in this appeal is that altb.9~-'' ·: . . ."'.d .•~ the appellant was convioted aa charged, that is, he was conVi.oted of .,·-,,:, burglary contra.Ty to seotion 294(1) of the Penal Code and also of stealing . .: oontra.r,y to section 265 of th~ Penal Code, onzy one sentence was passed. Tb.is is w:r9ng. A sentenoe on each co\lll.t shouJ.Q. have been passed. Conse- quently I will correct the record by passing a. aentenoe of- 12. months· for the. oount of stealing. This sentenoe is to WIJ.: .concurrentJ..y with that of bltr,gl~• A part from the above observations includil>€. that of' var;ying . ' the ientenoe, the appeal is dismissed. I -. ... . . . Coµrt1 Judgment delivered in court in the presenoe of Miss. ~ for Republio on 24/8/87 • .- .. ~·· .... . .. .-- - . -- ~/;g~!~f?._ ...... (,_ ___ .• - · · r-· (A.BAIIA.TI) -·-··\, JUDGE.