JUMANNE RAMADHANI v REPUBLIC 1992 TLR 40 (HC)

 

JUMANNE RAMADHANI v REPUBLIC 1992 TLR 40 (HC)

Court High Court of Tanzania - Mwanza

Judge Masanche J

11 March 1992

Flynote

Criminal law - Obtaining by false pretence.

Criminal Practice and Procedure - Sentencing - Omnibus sentence - Offences

committed G in close association with each other - Whether consecutive or

concurrent sentence - Rectification of sentencing procedure by an appellate court.

-Headnote

Appellant was charged with and convicted of obtaining money by false presences H

contrary to section 302 of the Penal Code. It is alleged that the appellant went around

in the township of Mwanza soliciting for money, especially from Asian businessmen,

saying that he was sent by Government officials to collect such monies for Mwenge

festivals. I He collected money from five persons. The sentence he got was one of

three years for all the offences.

1992 TLR p41

MASANCHE J

Held: (i) It is unlawful to award omnibus sentence. Each count must receive a A

requisite sentence. The magistrate may then decide to order the sentences to either

run concurrently or consecutively depending on the nature of the charges and the

evidence unfurled at the trial [See R. v White [1972] Crim L.R at 193];

(ii) the three year sentence imposed on the appellant was not on the high side.

For B the record purposes the sentencing procedure adopted by the trial magistrate

must be rectified;

(iii) On each of the five counts the appellant be sentenced to three years

imprisonment. These sentences should run concurrently to each other and hence the

appellant should serve three years imprisonment. C

Case Information

Appeal dismissed.

[zJDz]Judgment

Masanche, J.: Appellant Jumanne Ramadhani was charged with and convicted of D

obtaining money by false presences contrary to section 302 of the penal code. He had

been charged along with another person called Mohamed Ally, Jumanne Ramadhani,

the present appellant, was the second accused, according to the charge sheet dated

11/8/86, and Mohamed Ally was the first accused. Mohamed Ally got acquitted on a

E benefit of doubt. The present appellant got convicted on all the counts he had been

charged with, and was sentenced to an omnibus sentence of three years

imprisonment.

I must straight away say that it is unlawful to award omnibus sentence. Each count F

must receive a requisite sentence. The magistrate may then decide to order the

sentences to either run concurrently or consecutively, depending on the nature of the

charges and the evidence unfurled at the trial. A commentary to the case of R. v

White [1972] Crim. L.R., at 193, a case decided by Queens Bench Divisional Court G

comprising Lord Widgery C.J., Sacks L.J., and Ackner J., says this:

The general principle that offences committed in close association with each

other should not normally attract consecutive sentences applies only where the

offences concerned H are broadly similar in character or related in terms of subject -

matter. Where two wholly different offences are committed at the same time, even

against the same victim, consecutive sentences may properly be imposed. I

1992 TLR p42

MASANCHE J

In that case, a Jamaican got convicted on five counts of obtaining property by A

deception and one of rape. He got money by telling the victims that he could cure

them of their evil spirits. From one of them, a woman, he demanded sexual

intercourse as a cure. Consecutive sentences were imposed and upheld.

Yet, in another commentary, in [1970] Crim L.R., at page 593, it is said, on B

sentences:

As a general rule, consecutive sentences even though imposed for quite

separate offences should not be added together to produce an aggregate sentence

which is totally C out of proportion to the gravity of the individual offences, or the

most serious of them. A court is entitled to reduce what would be the logical total

sentence if a strictly mechanical approach were followed, if this is necessary to

produce a reasonable result. D

The general rule, and the pattern in most cases is for the court to impose sentences on

each count and then order that the sentences should run concurrently.

The appellant, as Mr. Kabonde, the learned state attorney has pointed out, is E

appealing against sentence. He is not aggrieved at the conviction. Indeed, he could

not complain against the conviction on such tangible evidence that was unfurled at

the trial. Appellant went around in the township of Mwanza soliciting for money,

especially F from Asian businessmen, saying that he was sent by Government

officials to collect such monies for Mwenge Festivals. Almost all the Asian

businessmen who parted with money identified him in Court to be the very fellow

who had gone around to collect such moneys. In total, he collected about Shs.

10,000/=. He then got caught and was sent before law enforcing organs; then he got

charged and got convicted. The sentence he G got was one of three years for all the

offences put together. Such a 3 year jail term was not on the high side.

However, for record purposes, I have to rectify the sentencing procedure that the

learned magistrate had adopted. I order that on each of the five counts the appellant

H be sentenced to three years imprisonment. But, these sentences should run

concurrent to each other. That is to say, the appellant only serves three years

imprisonment.

I Appeal is dismissed.

1992 TLR p43

A