William R. Gerison v. Republic, Cr app no 69 of 2004 (Robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:   MROSO, J.A., NSEKELA, J.A. And MBAROUK, J.A.

CRIMINAL APPEAL NO. 69 OF 2004

WILLIAM R. GERISON …………………………..…….. APPELLANT

VERSUS

THE REPUBLIC ……….……………….....………...… RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania

at Mtwara)

(Lukelelwa, J.)

dated the 2^nd day of April, 2004

in

Criminal Appeal No. 42 of 2003

-----------

JUDGMENT OF THE COURT

10 December 2007 & 30 January 2008

NSEKELA, J.A.:

        This is a second appeal from conviction and sentence for robbery with violence contrary to sections 285 and 286 of the Penal Code, Cap. 16 RE 2002.  The District Court sentenced the appellant to fifteen years imprisonment.  On first appeal to the High Court, (Lukelelwa, J.) the appellate court upheld both conviction and sentence.  We shall revert to the issue of sentence later.

        The facts of the case may be stated as follows:  On the 19.7.2003, the complainant (PW1) Alphan Simba, was returning home riding a bicycle.  On the way, he encountered the appellant, William R. Gerison and another person called  Beatus.  The appellant and his colleague roughed up PW1 with a sword, took his bicycle and other properties he was carrying and disappeared with them.  PW1 reported the incident at Ndanda Police post.  The next day on the 20.7.2003 while at Michenga Village PW1 and PW2, Hassani Athmani saw the appellant and Beatus with the bicycle.  They pursued them and managed to arrest the appellant and retrieved the bicycle.  Beatus escaped.  On the basis of these facts, the appellant was convicted and sentenced accordingly by the courts below, hence this appeal.

        The appellant filed a six-point memorandum of appeal.  The essence of the grounds of appeal were (i) that PW1 was not the owner of the bicycle and (ii) that the appellant was not arrested at the scene of the crime.  At the hearing of the appeal, the appellant appeared in person and unrepresented.  He did not have much to add to elaborate on the grounds of appeal.  His main line of defence was that PW1 did not adduce any evidence of ownership of the bicycle such as a receipt that he owned the bicycle in question or the frame number of the bicycle apart from mentioning the brand name of “Phoenix”.  On her part, Ms Msabila, learned State Attorney, conceded the fact that there was neither evidence of PW1’s ownership of the bicycle nor did PW1 mention any special identification marks.  However, she submitted that the appellant on the 19.7.2003 after attacking PW1 forcibly took away the bicycle he was riding.  However, she added, the appellant was found with the bicycle on the 20.7.2003 and was consequently arrested in the presence of PW2.

        The only issue before the District Court and the High Court on appeal, was whether or not on the evidence the appellant was the person who committed the offence he was charged with.  The District Court found so and this finding was upheld by the High Court.   The question is, was the appellant positively identified as the culprit who robbed the appellant of his property including the bicycle?  There is evidence to the effect that on the 20.7.2003, PW1 and PW2 saw the appellant and one Beatus riding a bicycle.   They pursued them and managed to arrest the appellant only.  They retrieved the bicycle which PW1 had been robbed the previous day.  While it is true that PW1 was unable to adduce evidence to establish ownership of the bicycle, this does not render any assistance to the appellant.  In our view, PW1 was a “special owner” of the bicycle in terms of section 258 (2) (a) of the Penal Code.  Admittedly, we agree that the identification of the bicycle was far from satisfactory.  The onus was on the prosecution to prove beyond reasonable doubt that the appellant came into possession of the bicycle in a manner which constitutes robbery in law.  There was evidence of PW1 coupled with that of PW2 which implicated the appellant with the robbery.

        As stated before, this is a second appeal.  On a second appeal, an appeal lies to this Court only on a point of law or points of law in terms of section 6 (7) (a) of the Appellate Jurisdiction Act, Cap. 141 RE 2002.  It is settled law that very rarely does a higher appellate court interfere with concurrent findings of fact by the courts below.  This Court, in the case of Director of Public Prosecutions v Jaffari Mfaume Kawawa (1981) TLR 149 stated as follows at page 153 –

“The next important point for consideration and decision in this case is whether it is proper for this Court to evaluate the evidence afresh and come to its own conclusions on matters of facts.  This is a second appeal brought under the provisions of s. 5 (7) of the Appellate Jurisdiction Act, 1979.  The appeal therefore was to this Court only on a point or points of law.  Obviously this position applies only where there are no misdirections or non-directions on the evidence by the first appellate court.  In cases where there are misdirections or non-directions on the evidence a court is entitled to look at the relevant evidence and make its own findings of fact.”

        As stated before no sufficient reason has been advanced why we should fault the concurrent findings of the courts below in this case.

        We now come to the question of the sentence imposed upon the appellant.  In sustaining the fifteen years term of imprisonment meted out to the appellant, the learned judge stated as follows –

“The appellant used a sword, to threaten PW1 in order to steal the bicycle.  A sword is a dangerous weapon.  In fact the appellant had committed the offence of armed robbery which attracts a sentence of thirty years imprisonment.  However the appellant was charged with the lesser offence of robbery with violence, and the particulars thereof alleged that he used personal violence against his victim.  I think it is not proper to substitute a conviction and sentence to a grave offence even if the offences are cognate.  This is notwithstanding the powers of this court under the provisions of section 366 (1) of the Criminal Procedure Act, 1985.”

        We have the following observations to make.  The offence of armed robbery was enacted under the Written Laws (Miscellaneous Amendment) Act No. 4 of 2004 published on the 14.4.2004.  It is now section 287A of the Penal Code.  The appellant committed the offence on the 19.7.2003 before Act No. 4 of 2004 came into being.  However, the Written Laws (Miscellaneous Amendments) Act No. 6 of 1994 was then in force since the 18.3.1994.  Now section 5 (b) of the Minimum Sentences Act, 1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994 provides as follows –

“(b) Subject to sub-paragraph (ii) of this paragraph –

(i)        any person who is convicted of robbery shall be sentenced to imprisonment for a term of not less than fifteen years;

(ii)       If the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more persons, or if at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment for a term of not less than thirty years.”

Act No. 6 of 1994 came into effect on the 18.3.1994.  the appellant committed the offence on 19.7.2003 when Act No. 6 of 1994 was operational.  On the evidence, the learned judge on first appeal found that the appellant had used a sword which is a dangerous weapon.  Under the circumstances, the appropriate sentence was thirty years imprisonment.

In the result, we dismiss the appeal against conviction, but set aside the sentence of fifteen years imprisonment and we substitute therefor the statutory minimum of thirty years imprisonment.

DATED at DAR ES SALAAM this 22^nd day of January, 2008.

J. A. MROSO

JUSTICE OF APPEAL

H. R. NSEKELA

JUSTICE OF APPEAL

M. S. MBAROUK

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(F. L. K. WAMBALI)

SENIOR DEPUTY REGISTRAR