19781207 TZHC Dodoma 1

IN THE HIGH COURT. OF TANZANIA AT DODOMA APATE JURISDICTION CRIMINAL APPEAL No • 288 OF 1977 (Original Criminal, Case No. 748 of 1976 of the. District Court of Dodoma Ditit at Dodoma) T$Xi. SAIDI IVIWINYIGOGO . .. . . . . . APPELLANT versus 'THE REPUBLIC . • . . .. . . . . •. RESPONDENT L,UDGMEN JONATHAN, In the district court of Dodoma the appellant was convicted of burglary and stealing and sentenced under the Minimum Sentences Act to 5, years' iinprisnment. .Aganst the conviction he has petitioned this court. . The house of Pw.1 appears to have been broken into NlC he was sleeping on the night of January 24, 1976 and a )Waipg Stereo Canor/Amp1ffier stolen together with two loudspeakers and 5t. disc records.t That has not been in dispute. There is also agreemeiit that, sometime later the appellant sold aPhilip Stereo Changer/Amplifier to Pw..2, a police officer, in the presence of P.6 3 another policeman, for the sum of shs. 1,150. As will hOwever be shown laterin this judgment, there is in the evidence cbntroversy as to when that transaction was reachod, but that des not appear to have received much attention inthe judgment of the lower court'. biucially in issue at the hearing was whether.the exhibit stereo system was the property of Pw'.l as he claimed, or that of the appellant as he càntended. The complainant appears to have bought the stolen set in the United Kingdom against a receipt in which the set was described as "Biiips 828 Stereo System. 1 It also ses that ' " on the paper box containing it was psted a printedlabel describing it more fully as "Philips Stereo Cha?lger/Amplifier 0P '828 style 13 GF 828/007, 11 . The trial court does not appear to have examined the set at the time of the hearing to' see if'the description givenon that label was reflected on the, stereo system, but the learned resident magistrate did jut, that when preparing his judgment. In the event, he found the set to have the description given'onthelabel ' 00 0 • Fortunately, the evidence of 4T.4 who, unlike .2.and Fw.6. was a dsinterestdwitness, would seem to clear the confisioñ. He was a cOrporal, at least two raks0 above Pw.2 and t'w.6, who, on the order of his superiors aears to have searched the house of 1w.2 for a record player, whereupon he seized the exhibit set. He gave the date as February 4,0 1976. In the normal course of things he would have recorded the "1 occasion in his official Jotebook and I ; would presume he was relying on it for the date. That he is not mistaken, the appellantts own defence would seem to bear him out when he says that, in the month of January, 1976 not long before he sold the record player to w.2 ) he lunt it to P'T 6 6 I find the account of P.4 to be reliable andacting on jt,I would the sale was reached sometime before February 4, but obvio] after January 24,1976. That is to say, the appellant was first seen in possession of that record player less than 10 days after the burglary. Clearly, that was recent enough to invoke the doctrine, eepecially as the item was shown to be rare in this country and incapable of changing hands easily. The appellant must himself have been the thief. I am satisfied, • therefore, that he was rightly convicted. As regards sentence, he was found to have had a previous conviction and so sentenced to 5 years. The pi'evious conviction was reached in criminal case No.719/76 of the same court,the record of which is before me. In that case on November 19,1976 he was convicted of burglary and stealing arising from an incident committed on the night of October 17,1976, while in the present case, it may be reminded, the.offences were committed on the night of January 24,1976, that is, well before the offence in criminal case No.719/76 was perpetrated. The conviction as not, however, returned till August 31 ,1977. For the purposes of sentencing, a previous conviction (.oes not become a previous conviction merely because it was iached on a date previously to the conviction for which senterce is presently being considered, even if the first conviction was that of an offence committed previously to the offence giving rise to the second conviction. A previous conviction is taken into account only if the offence about which an inqu:Lry is being made as to f ncc sentence was.committed subsequently to the previous conviction. Plainly then, in this case, under no circumstances, at any rate, for the purposes of sentence, can the conviction in criminal 0 case No.719/76 be regarded as a previous conviction to the present conviction. - 4 In view of this, the appellant should have bden sentenced' as a frst offender and, accordingly, for the sentence of' 5'years, a sentence of 3 years is suistituted. Delivere.d in open court this 7th day of December., 1978, P. M. JONATI J1JDG-E.