19750314 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA WA I7,1 1a.Sa4 AT MWANZA APPElrLAtJE J1JRISDICTION HIGH COURT. CRIMINAL.41TEAL , iO. 45§ 071974 (OTiginal Criminal Cas(3 No. 828 ±' 1974 of District Courb of Bukoba District at Bukoba: Before C. H. Msathati, Fsq.; Dirict Itagistreta) SUPERI I'TEMLNOWA................. ... : i. • .••• (. 01 ina1 Acccd). vcrsus ......... . . ,. THE REPUBLIC. . .. .... .. .. ... . . .. . . ,•. . . ... .. .•. . .. . ..,...•• , 1I .RESPONDENT (0x'i.gina1 Prosecutor) cIARG1: Stealing by Public Servant c/so 27 0 and. 265 oi the Pe.nal Cøda Cap. 16 of the Laws. JUDGMENT ATITI. AG.ji L'he appellant fiuperi Nyemenowa was Conviøted on his own plea and. entencod -to 12 months imprisonment. The brief facts loading to the indictment of ih appellant re that on 21/10/74 the appollant wa chcckcd by auditors and found short of 931=. Th appellant was severely warned. and. a pcnalty impocc3. upon him and ordecd to ref.uid t e amount found short, All this, ho fulfilled to the idttr and th amoXnt a or -b coupled with the pcalty wore collected vido C#FR.L486l9. Hoping all wa well the appellant iaa surprised -to find himslf a victim of apprehension and, indictment subsLqucntly and. scitcicd to twclvo months imprisonment. -On the face of it and ox the law prevailing hi appeal could only be cntcrtainM....to the xiont or legality of sentence for scetion 313 (i) of the Criminal Procedure Code prodct:-. . No appeal shall be allowed in the CaSO of any accused person who has pleaded guilty and has been convicted on such plea by a Subordinatc Court oxoopt as to the extant or legality of the sentence." Howew'r the record having:rç 19.ctcd.that j1c trial magistrate had in away;. been a "oomplainant" nd. Jzn' oxcis'd his administrative powers oVer -the appellant to makc -the lo6d good and furthermarc havin gone to the extent of imposing th pena].trana s -till sit as trial magistrate the question was whether this was not irrcg14Q. There is no doubt that it was irregular for the magistrate -to try as*hich h; had dealt with administratively and gone to the cxtcnt of imposing a penalty upon him, It is my vic-y that in situation like this the appellant must have been already guilty in the minds of the trial magis -tratc even befor the plea was taken. However it is my view that since thcrc was a plea of. guilty by the appellant I would concede thcrc was no failure of justice. Now I come to sentence. Stealing by a person 3mploycd in public service contrary to section 270 and 265 of the Penal Codc is a acheduled offcncc under the I:Iinjrnuzn Sontcnccs Act 1972, The normal minimum sentence for such an offence is as pcV section 4 of the same Act 3 years. . But the same Act provides cirownstancas in whiôh the Court may not.apply the Act. Section 6of the Minimum Sentences Lot as amended by the Written Laws (Miscellaneous Amenclinan -tz) Act No. 23/1973 Pro* vides:— "Notwithstanding the provisions of Section 4 or Section 5 whore a person is convicted of a scheduled offence and the Court i5 satisfied that . . . () - the parson so øonvictod is first offcnd.er, and /2 2' • (b) ' tic valuo.:of' tho pry obtaincd by such prson in th' cous'. of 'tho corvussion of :j ffcnoe or which hO attempted to so ' obtain 'doQs 'not exceed or in thooc 'of an ttonpt, wol4 not have eXceeded, dne hundred shillings, and (c) having regard to all the circumstcnc,csof tho:'' cse it is uc't ,nd, cq b.lc q to do, •• ii Ie'. of scntanci such p: on.t: b ihã minimum 'scntcncc'of irprisonmcnt provided for in .se.otioi'4proceed tb deal with such person as if this Act had notb n:cnctcd.. OiTccord. the apclln -t is first off ndcr, 'tho amount is less than hundred, shillings, this very amount had bccn refunded and oicr Mebbvo that.an administrative penalty imposed and paid, accordingly. 'He . has bcon in:sorvicc for 17 years apparc"rtly withtc1an rcord., lihile by t10 fcc't 'th-t the convicting magistrate imposc'l' ñon'ths, "la than the minimum be muat have found. tho Act inapplicable in the circumstances, thc question is whether oonaidcring the trial magistrate interest in the mtcroaupled with the gorgeous probation of.ticcrs report lu.s approach to c nnc WaS not affected.. The magistrate proambloo; ,pDploguo 'to, cntcAj' is. cu.rkous.,.'.His approach is as though he was cvcn l about to impose a, scntçno. orc t9n th minimum - that is his tking of f to th. sn'Lncc app-ers -too ius considr1n 'the circumstanccs of the apellnt, the crts of whosc Ci oc nd considcra'tio notwithstanding the prcval ncc of ouch offçnces. on i,,h re-eod I am also ' not porsuded to thiik tk -t the trial ni-gistr-tc did proptrl y diLt himself t the prova.siono of. Srction 6, d I am doubtful wheth r us interest in the case did, not influence hm in itnposng the sentence he did. In this cvcn I sentence the app.11ant -to such term of sentence th"twl1 r stilt in hi immediate ialC'so unless otherwise icgc'iiy hcld. I further order that penalty of Shs. 93/t purportedly , imposed be rCfunded beck to him. Dolivaz'ed. in Court at Mwanza 'this..J.f/t,.cjay 975. M'1ANA F. W. KATITI hCTING JUDGI . (