19781207 TZHC Dodoma

II.\J" THE HIGH COURT OF TANZANIA AT DOD.OMA APPELLATE JURISDICTION CRIMINAL AJ?PEAL No. 288 OF 1977 (Original Criminal, Case No. 748 of 1976 of the. District Court of Dodoma Dist:rict at Dodoma) -Y.lSlliI SAIDI MWINYIGOGO • .. . . . • • APPELLANT . ' ver,sus -THE REPUBLIC ._ . . . . . • • • • • •. RESPONDENT . JONATHAN', J • . In the district court of _Dodoma the appellar_i.t was convicted of, burglary ~d s;t;ea.l,ing and sentenced under the Minimum Sentences Act to 5 yearsi' impriso~en't :·· .Aga:i,nst the conviction he has petitioned this court. . . The house of Tu .1 appears. to have .been broken. into ifflilC . ··. he was sleep:i.ng on the night -?f January 24', · 1'976 and· a l!t.llipg Stereo ~ o r / Amplit°ier stolen together .with two loudspeakers and 5f. disc recor~s. ( - That has not -been in dis]?ute. There is also_ agreement that, sometime later the· appellant sold a,'.P}iilips Stereo Changer/Amplifier to· Pw.2, a police ~fficer, in the ·presence of Pw.6• another polic~map., for the sum o:f shs. 1,150. As will however be shown later :in this judgment; there is in the evidence con~roversy as.to when that transaction was reached, but that 'd'oes ·not appear to have ··._received much attention in, the_ judgment of_ the l.ower court· •. Crucially in issue at the hearing was whethei~ -the exhibit stereo system was the property of Pw.; 1 as he claimed, or that of t]:le appellant as he contended. The complainant appears to have bought the stolen set in the United Kingdom against a receipt in which the .set was described' as UP.hilips 828 Stereo System."_ ·-rt also. se,~;ms that on the paper box containing it was l_F,stcd · a pi'inted label describing it more fully as flPhilips Stereo Cl1.a..1ger/.Amplif_ier GF 828 style 13 GF 828/00Z". _The trial court does not appear to have examined the set at the time of the hearing to-· see if· the description given_ on that labe~ was reflected op. tJae:, st~reo . system, but the learned resident magistrate did jus:t. that when preparing his judgment. _ In the event., he !ound. the set to have the description given.on the label~ - 3. , .Fortunately, the evidence of Pw.4 who, unlike l?w.2.and Pw.6, was a dismterested witness, 1110uld seem to clear the confusion. He was a corporal, at least twp rapks_ abo~e Pw.2 and J:\J .6, who, on the order of his superiors appears to have searched the house of Pw.2 for a record player 9 whereupon he seized the exhibit set~ He gave the date as February 4,· 1976-o In. . .the normal course . of things .he· would have recorded the ~ occasion in his official potebook and ,r,_ would· presume he was relying on it for the date. ,That he is not mistaken, the appellant 1 s 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 Pw. 2 he lunt. it to Pv,r 06 o I find the 1 account of Pw. 4 to be reliable and.se,cting on it, I would oc-:y the sale was reached sometime befors February 4, but obvio"'· c-:J.y after January 24, 1976. That is to Bay, 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, especially as the ite;n was shmrm to be rare in this country and incapable of changing hands easily. The appellant must himself have been the thief. I am satisfied, the ref ore, that he was rightly convicted .. As regards sentence, he was found to have had a previous conviction and so sentenced to 5 years. The p:;,.~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 stoaling arising from an incident committed on the night of October 17 9 1976 1 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 perpetratedo The conviction· was not, however, returned till August 31 ,19770 For the purposes of sentencing, a previous conviction t.oes not become a previous conviction merely because it was r0ached on a date previously to the conviction for which senter.ce is presently being considered, even if the first conviction was that of an offence committed previously to the offence gi~ing rise to the second conviction. A previous conviction is taken into account only if the offence about which an inquiry is being made as to r ---1--cc sentence wa~-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 case No.719/76 be regarded as a previous conviction to the present conviction. 4 - In view of th_is, the appellant should have been sentenced· as a •,! f~:r;st offende_:r and; accord irigly, for the sentence, of .. 5-years, a sentence of 3 years is substituted. I Delivered in open court this 7th day of December, 1978. P. !f~;~, JUDGE. '\ _J