19850114 TZHC Dar es Salaam

IN THE HIGH COURT OF' TANZANIA

AT DAR ES SALAAM

REVISIONAL JURISDICTION (DAR ES SALAAM REGISTRY) CRIMINAL RI:QbISION NOo 15 OF 1984 ' ORIGINAL CRIMINAL CASE NOo 864 of 1984 OF THE DISTRICT COURT OF DSM DIS'.CRICT AT KISUTU BEFORE Yo So MPERELLA RESIDENT MAGISTRATE THE UNITED REPUBLIC • •••••• o • • o. o oPROSECIJ'l'OR VRSo

ALLY MOHAMED MGOA RULING 3: BAHATI - Jo This case is before me for revision purposes with cegard to the sentence imposed on the accus,-:d in this case who was convicted of stealing one bag valued t shs. 1,500/= belonging to the Post Office, .,.... .......:1111.. his @mployer. He was sentenced to one year imprison because the learned trial Magistrate ;otmd the accused to be 18 years of ege anq, held ~a.t: the Millimurn sentences Act did not apply to him. Mr. Mlawa who is a probation,• C~ficer attached to Kisutu RM•s Court wrote a letter to this court requesting the Court to revise the sentence in this case to one of probation. In court Mr. Mlawa submitted that he had inte.J:'Viewed the ac:cused -bnfore judgment and had found out . that .he was the 1st born of his parents and thc1t his parents depended onrum. He asked this court to reduce the sentence because the accused is a f1N~ offe~er, young and has dependants. Mus. Mabey<), learned State Attorney for thP. Republic did not oppC$e the applJ.c:ation for thP. .revision of the sentence to one of possibly ••• /2 •. . . .,.. probation. I have taken some time to consider the submission of the Probation Officer and I have come to the following conclusions. If the accused's age was 18 years at the material time, then thf~ leanned trial Magistrate was wrong in not applying the provisions of the Minimurn·S(;;S~ences Act to him because

the provisions of the Minimum Sextence Act cto no apply only to a juvenile, and a juvenile is defined as a person under the appa~ent age of 18 years. In this case the nccused is described in the charge sheet and in the sentence to be 10 years old. That means that he is not a juvenile and the Minimum Se~tences Act applies to him. However, it can be said that- since the trial Magistrate in his sentence refers to the accused ~s being 18 years old, the accused must have been under 18 years at the time of the commission of the Offence which is the material time. I will therefore go by the fact that accused was a juvenile at the material time. Now ns for the sentence, ·there is nothing to show that iti~s excessive. The accused who was employed by the Post Office stole a bag worth shs. 1,500/=. He was caught red-handedo He did not plead guilty to the charge and evidence had to be adduced to prove the charge. Where are the mitigatiftg' factors? The record does not even suggest that the accused was contrite and sorry for what he had done. It is true that c1ccus1=?d is just about 18 years and that he is a first offenderft But that does not mean that a sentence of one year for stealing a Post Office matter valued at shs. 1,500/= is excessive or wrong. It is also true that his parents dO de. .nd on him since he was their only hope, being the eldest child 1 But with !ue respect to the

probation officer there is hardly any 1'Ugati.ng factor in those facts. Lastly, this <:OUrt can 1.nterfere · with a sentence il!J)Ose by a subordinate court only if it is excessive or w•oag or illegal. Even if this court were minded to release the accuaed on prQl)ation it does not mean that it can just substitute a P~'10n order for the ,sentence p<1ssed with out any good reasons. l see •O good reaSons to interfere with the sentence he.rs. '.I'he application to ~ th~ eentence is therefore .r-~fused. A. BAHATI

JUDGE 14/1/1985 Dated at Dar es. Salaa,n PAR Es Sj(AAM.