PETRO S/O SALILO v REPUBLIC 1997 TLR 105 (HC) A

 

PETRO S/O SALILO v REPUBLIC 1997 TLR 105 (HC) A

Court High Court of Tanzania - Mwanza

Judge Lugakingira J

HIGH COURT CRIMINAL APPEAL 145 OF 1996 B

21 April 1997

Flynote

Criminal law - Possession of moshi in contravention of ss 30 and 34(1) of Act 62 of

1966 - Sentence. C

Criminal Practice and Procedure - Prosecutor - Not improper for arresting officer to

be prosecutor in case.

-Headnote

The appellant was convicted of possession of moshi in contravention of ss 30 and

34(1) of Act 62 of 1966 and was sentenced to 12 months' imprisonment. A D coaccused

was sentenced to a fine of 10,000/=. On appeal against the sentence,

Held:

(i) The disparity in sentences imposed was unjustified and the appeal had

to succeed on that basis as well as on the basis that it exceeded the penalty stipulation

in the Act; E

(ii) The court remarked further that there was no objection to the arresting

officer acting as prosecutor in the case.

Case Information

Order accordingly.

Case referred to:

1. R v Sarwan Singh [1973] LRT No 32 F

Mwambegele for the Republic.

[zJDz]Judgment

Lugakingira, J G

The appellant and another person who was the second accused at the trial were on

their own pleas of guilty convicted of being in unlawful possession of moshi contrary

to ss 30 and 34(1), Act 62 of 1966. I have perused the record and satisfied myself that

the pleas were unequivocal. The problem was with sentencing. The appellant was

sentenced to twelve month's imprisonment H because he said nothing in mitigation;

the second accused, an 18-year-old female, was fined Shs 10,000/= because she told

the trial magistrate: `I pray to be fined'. This appeal is against the sentence. The

appellant claims that he is hard of hearing and did not understand what was

transpiring at the sentencing. He also lists mitigating factors I

1997 TLR p106

LUGAKINGIRA J

A which include advanced age, poor health and `a dozen of grandsons and

granddaughters'.

The appellant's claim that he has lost the capacity of hearing makes no sense and must

be rejected for a lie because he is challenging the sentence only, not the conviction.

The real problem in the case is indeed whether the disparity in B sentencing was

justified. For the information of the trial magistrate, however, even the second

accused said nothing amounting to mitigation of sentence but asked for the sentence

she preferred. If sentence is going to proceed on the wishes of accused persons, very

soon they will also be shopping for the prisons they prefer as is the case in some

countries. C

For the further information of the trial magistrate even the `mitigated' sentence he

imposed on the second accused was illegal. The offence attracts a maximum fine of

Shs 5,000/= but he ordered her to pay twice over!

D I think the disparity was unjustified. Where two or more persons are jointly

convicted of an offence, a severer sentence on one cannot be justified by his failure to

advance mitigating factors but by aggravating factors on his side.

E Failure and even refusal to speak in mitigation is not an aggravating factor for it is

within the accused's lawful discretion. A wrong principle was thus applied in this case

and the appeal ought to succeed.

Learned counsel for the Republic also wondered whether it was proper for the

arresting officer to prosecute the case, but I see no difficulty in this. There is no F

rule really, against this, and in view of the prompt and unequivocal pleas in this case,

I think there was no failure of justice. This court has in fact had the occasion to say

that there was no bar for a prosecutor to be a witness in the case he prosecutes: see for

example R v Sarwan Singh (1).

G The appellant has been in prison since 22 October 1996, a period of six months. I

think that serves the justice of the case. I allow the appeal and reduce the sentence to

result in his immediate release. In revision I also set aside the sentence imposed on

the second accused and substitute a fine of Shs 5,000/=. She should be refunded the

extra Shs 5,000/=. H

1997 TLR p107