19900226 TZHC Dar es Salaam

H· I ' Dl~J.ic!TIIGITCOURT0FTM{ZANIA 11T DAR ES S.:UJ~-1 .t..PPELLATE JlliUSDICTION EIGJ.I COURT CRIMil{AL APPEAL N0·.12 OF 1990 (Fro~ original C-..ci.rtl.naJ. Case No.94 ~f 1990 of the District Court of llala District at I(;i.sutu) MARIAM lf.!OIIAMED KUL.11:ME •• o • ., a .. ., . . . . . . . . . . . o . . . . . . • • • • o • • • • APPELLANT (Origi.11.:il Accused) versus TIIE UNITED REPUBLIC ....... 11. t O o>. 6 IO o 4 .. t O O. DO.• .... 0 • • • • RESPONDENT . (Origi.nal Prosecutor) JUDGMENT- MA.PIGANO 1 J !. The appellru.·rt. ·1aariam Uohemed ICulame was brought l)efore the learned m13gistra,te at Kisutu District Court charged 1-Tith having in her possession a passport which was issued without le.wful t authority,_ contrcxy t'o section 26( 1 ) ( e) alld. ( 2) of ·i;l1e Iranigration Act, 1972. The :r,r:rliaulars alleged that the offenaa · -took place on 18/1/90 a-'li ribou·t 9 p.n,.. at the Dar es Sala.am 1n·;;em,.·-:d;ional Airport witr.±n -'-;he District of Ilala.. When the plea was read owr ancl. e:r.plained to the appellant she is :recorded. c.1,s hav:i.ng said ttit is truen • This was entered as a plea of guilty~ The record shows that when -'Ghe ]?".roseoutcn- was asked to state the facts in support of the .charce he respo- ruied by saying tlfacts as pe:r charge shee-'i;tl • Next the lG2.rned magistrate conVic-ted the appellant of the offence charced and passed upon her.

a sentence of imprisonnent for· a term of one Y€al'• "In her pe-'i:;i-'liion of 3.pp0al the appellant contends -~hat her plea. was equ:i.vocal.. I am not persuaded. The app0llant_ ad.mitted the truth of -the charge, upon the ch;::irge having l)een read and explained to her. That is to Sa¥ she adnitted that she was in possession of -'lihe passport on the da;y- _and at the tir.1e and place . speoif'ied in the OMrge. She also admitted that t.he passport was issued to h~. ~--Ti thottt lawful. anthori ty._:fue said noth:ing when she was accorded an opportuni-tzy" to address the court. In these circuI!lstanoes I am satisfied .. that she ad.mi tted a1l -'i;he int,-:Tedients. ·• ( of the offenc~ charged and that the proceedings -w=o·• .i.ltJt .irregular• ' .. It is trv..e that this court has on a numbc:p- of occ:iasions stated that 1-lhe:re /:Ol1 accused person pleads "it is tru.(3'°t ·-:to the . . . charge it is desira1Jle that the proscoutw-should. s:tm.-'1i0 briefly ' 4;" . the facts on which the charge is hasc,d~ The proseoutor' s' ste,tement sel.'Ves two pw:pos6s. First, it enables the court ·to check if the I.:, •' . . ' . .: •i:·',!;/,". --· ,·,t: I • T, - - 2 - accused's adoission of the charge is real.:cy unequivocaJ.., Second.JJ", · it provides : ·the court , ' 'With materials . . ~- • ~ that• m~ . help it to asseEfs . r· . an a,ppropriate·-'puni$ci,aht.r . .But .. the

absence ·ot·· su.oh statemaiff(;i.s ·not ; .. ' - always f~t~ J.;o· th~{·c.~9.~19,i, as J.o~el?_l~ Haw!®i'orth and Another {1970). HCD 271, a·oase cited-by OOUl'l,eel for -the "appellant, show~, If a ple~ contains ad.missions of. -al~ the ingr:cdie..."'l.te ar the offence charged it · should be' sus·tained. I ·di~s.... tlie .. appeal f:t'om the conviction• . ., --- , . . The appellant also contends that. a, ~1.st9di~ ·sentence was uncalled for in this case . and Dzy' a;b·~ention has been drawn· to ·the provision -of seotion 26(2) of .the _Inmigra-tion Act,. Under that provision the penaley- prefJQribed for the offence is a fii-;,.e not• excee- ding shs.30,000/- or imprisonment for a term"not exceeding -'~ee yea.rs or both suoh :fl.Ua and iopriijanm.ent.. It mey be observed that in view of the devaJ.ua:;;;on ;ef the- shUlin.g' ,that has talcen place since 1972 the . rmx1mum. fine pen;µty would. appeax-~tQ....ba iru:.pprop:d,ate to-dc\Y'•· . . · i Like the Re~Uc I agree with t!io p:r;oposition that the appellant should have bea1 given the option to pey a fine 1 if only on account of her age. It i.s said that she is 17 years and. indeed she looks that age._ I allow J~he appeal agaipirt the ociitenoe. I alter the sentence and impose a fine of. SJ.S,YJ,000/.... 1n dofnul:t one year in}:Srisont1Gnt- . ~1l. ·r~ (D ;p ..?UJ'IG/.HO)

JUDGE 26/2/1990~ : \_.