19770221 TZHC Dodoma

-. IN THE HIGH CaJRT OF TANZANIA AT;DODOMA' r. J' APPELLATE .JURIBDIO~I\I:ON· ~ . . I: HIG:H · .. •' CdURr CRIMINAL ci.ksE:.,No.·; ·: ·22 ·oF t977 . ·.:: :·'•\ \ . . ' ·. > •' ·. f ·; • .. OF THE DISTRICT COURT OF MA:N'.YORI\DISTRICT· LT J\'il~NiYOif!'· .. · BEFORE E. B •.. KIWANtlILt· . -:·/ •••• -~ _1,)~ ·-,~D-ISTRICT J\iA-G . . ISTRATE . . . : 'j . .' . ' ···: YOHAN:A .MSITA ••• ~ .•••• · ••••.•..•••,;•. ·•••••••• .- •• ~-. ,APPELLANT . .: . . . . ' ,. . : . . , .. ' . ' ~ . -:~ ;,; . l HE REPJJBLIC_ ••• •,:_••••• •.:. ·••,.•.•::.:,:~' .. -.~- •.• ·..:_,; .• ,.,:.-. RESP'ONDBN.T..... 11 CHARGE~ Unlawful possession of Govt. trophies c/ss 66(1) (a) and 67(1) (2) and (a) of the Wildlife Conser- vation Act No. 12 of 1974. JUDGIV"illNT MNZAVAS. J. The ar.cused -was/ fol.llld· guilty and convicted of being in-•'.\filiaw-• ful possession of Govei·nment trophy c/ss 66(1 )· (a) and 67(1 )' (2) of the Wildlife Conservation Act - Act No. 12 of 1974 and sentenu,c to seven years imprisonment .• He is appealing against bo.th th'e· conviction and the sent e:n,98. In his argument before this Court; the learne·d defence counsel argued that accused's 11 plea of guil ty 11 before the lower rourt was equivocal and that the trial magistrate had erred in basing his conviction on an equivocal plea of guilty. In tre al term tive but without prejudice to the first argum8Lt it was argued that the sentence of seven years imprisonment was manifestly excessive. In rebuttal the learned state attorney argued that the 0 plG8. of guil ty 11 was unequivocal and that the learned magistrate was right in convicting the appellant on his own plea of guilty •. As for the sentence the Republic submitted that it was not so maJ.iifestly excessive as to warrant interfc.rence by this court. With respect I agr.ee with the Republic's submission that th:; appellant was properly convicted on his own plea of guilty. Ny reading of the record leaves no doubt that a proper plGa of 11 guiltJ~n was made and, after the pros0cutor had given the facts constitu- ting the offence the accused is recorded as saying: "I admit the facts and th0y are correct". In these circumstances the accused has clearly no right of appeal against. conviction, governed as the matter is by section 313(1) of the Criminal Procedure Code. The appeal against conviction is incompetent Etnd it accordingly fails • • • • •2 2 L.s for the sent cmce of seven years imprisonment 9 I agree wit. the learned state attom ey th.':'. t tbe c..ccused deserved 2. severe sentence r=!.S he wns found in possession. of Governinent ·trophies worth 2.bout Shs. 26,000/-. But,, on tbe ·other hr,.nd 9 2,nd FtS rightly argued by the leP.rned deferice c oun~e,+_ 9 · .,Wl ,ii;npq{:ling ·the sentence of seven ye2.rs imprisonment; the. lear11etl_: trinl magist;r-2.te ff,iled t,; take into account fnctors which c2.lled .:for, some.;.leniency .. · The accused was, 2.t the age·of sixtyyears 9 a first offender. This fact added to the faq.t tbe._t .he· ple2.q_ec gi,lilty; .::to the offence entitled him to some·· 'l~nicncy .• !:, . : · · ··· _••.· · ·. · -. ,. · . . ·~•. • . . . ! . ·,, . .: . ... . ;. ·. : . . " . : : ,. •· , I ; . I agree with the learned' riir_,.gistr2.te's observo.tion tl1c1.t tho circumstrmces called tor .·n sever.a, so,nt enc;o;, ,·.but :looking c1.t thE? totnli ty of the f~cts and- c.ccv.sod' s •ndvencocl age, it is the view of this Court that 2. sen tonce of five years inprisoru:iont would have met tho justice of ,the cnso. The sont once of .-.seven years impriso:mJJ.ent is accordingly sot aside-and in siibstit"qtion therefor the appellant ,;is sentenced to .five years impris·onrn.ont~ The loamed magistrate Is confiscation' order s.t.ands. ' . Dodo rn,.3,. 21st Februa1,;y, 1 977 Cfutmbakare for the. a:ppelh nt. Ojare for the Republic/resp~ndent ., • : . t .. ·' ... ,, , :, .. _.,