19710507 TZHC Arusha

4L IN THE liIGH COURT OP TANZANIA AT ARUSEA.. 1 'D &M"" ZLjJURISDICT1ON 94 HIGLCOURT CRIMINAl4 A PP1AL_NO.1 OF 19'1 ORIGINM4 CRIMINAL CASE NO 186 O1 1970 OF T ITRI CQURTQP MBULU 1RICT MLLJ1 Before L.A .L.Mjzoni* .Esou&re_District ?(aistrate TARIMO 6/0 NADE.... .. 00000000 APPELLANI' a.. a a ii a• • • a a .. i . (original ccuned) versus THE REPUBLIC... ... .. ... ,., .. ..... .., . . . . . ... .. .RESPONDE1T (Original Prosecutor) C1J.RGE_ Otore breaking and 3tealing, o/9 296 (1) of the Penal Code. JU D. Q E LLE N P. Kwjkjma Ag.J. The appellant was jothtly charged with others for store- breaking and stealing. The others pleaded guilty to the charge. The appeUant was convict cd on the evidence wblch came out during his trial, He was sentenced to two years and twenty tour strokes under the Minimum 3entenceo Act. He is now appealing against both conviction and sentence. There was ample evidence for the trial court to have convicted bin. The appellant was caught on the verandah of the broken ponbe shop consuming the stolen beer. His conviction cannot be faulted. The sentence imposed on him was excessive, however. The beer stolen was valued at eb 15/ only. The offence itself was so oill1y that had it not fallen under the Minimum Sentences Act, a conditional discharged would have been most appropriate. The appellant himself is a very youngmirn of 22* He is recorded to have told the

court that he has a mother and a father to support. All this would clearly constistute special circumatanceE in terms of S. 5(2) of the Minimum Sentence Act. In sentencing him the trial court observed that the offence was too prevalent. It must be respectfully pointed out that the prevalence of an offence is a circumstance special to the ofrence and not to the offender On the other band special circumstances under section 5 (2) cap 526 are those circumstances relating to the offender. It to quite olear that the trial court seriously misdirected itself by refusing to find that there were special circumstances relating to the appellant simply because the offence itneff was prevalent. This misdirection, however, is curable under section 346 C.P.C. under which section Duff 3 has he34 that "The High Court nay, on revision, consider the quootio!1 of "special oircnmtancea" which might warrant leniency under section 5 (2) of the Minimum Sentences Act, despite the feact that the issue was not considered at all by the lower court" 0 0 •. 0 0 . 0 0 . ./2... 1 .9 •s•..4s.• , .......... This ruling Is applicable the more to this case especIally as the trial court did actually consider the question of special ciroumatances. Where It erred was to relate these cIrcumstances to the offence and not to the offender. The legis'ature clearly intended that the circumstances should relate to the

offender, The sentence imposed on to the appeUant Is in the cIrcunstancea excessive. God knows rihat damage his character has suffered during the four months of constant contac1 with hardened criminals, He ought not to have gone to jail in the first place. The ajterxwtive sentence of ten strokea would have more than met the justice of his case. Accordingly the appellant's sentenoe is hereby set aside and In oubatItutin tbex$r' It is ordered that the appellant beand is hereby diec!iarged absolutely under section 38A P.C. in view of the unneessary hardship he has euffere. uha 14H.A .KWXKIMA, 7th Lay, 1971. AG.iIi OJL