ALEXANDER MPELEMBA v THE REPUBLIC 1990 TLR 2 (HC)

 

ALEXANDER MPELEMBA v THE REPUBLIC 1990 TLR 2 (HC)

Court High Court of Tanzania - Mbeya

Judge Mchome J

11 April, 1990

Flynote

I Criminal Practice and Procedure - Sentencing - Mitigating factors - Whether

having dependants is a mitigating factor in sentencing.

1990 TLR 3

MCHOME J

Criminal Practice and Procedure - Sentencing - Powers of subordinate court to

sentence an offender for scheduled A offence - Section 170(1) (a) of the C.P.A. -

Whether sentence passed by a Senior Resident Magistrate needs to be confirmed by

the High Court. B

-Headnote

The appellant is appealing against a sentence of twelve years imprisonment on the

ground that his parents are old and depend on him and that the punishment is more

than he could bear.

Held: (i) Section l70(1)(a) of the C.P.A. empowers a subordinate court to sentence an

offender for a scheduled C offence to a term of imprisonment not exceeding eight

years;

(ii) the scope of the proviso to section 170(2) is limited to section 170(2) and

does not apply to the whole of section l70, and in effect it does not give Senior

Resident Magistrate unlimited sentencing powers; D

(iii) having dependants is not a mitigating factor in sentencing.

Case Information

Appeal allowed in part. E

[zJDz]Judgment

Mchome, J.: This is an appeal by Alexander Mpelemba against sentence. He was

found guilty with two others of robbery with violence and sentenced to twelve years

imprisonment each. The appellant's ground of appeal is that his parents are old and

depend on him and that the punishment is "more than I can bear". F

Having dependants is not a mitigating factor in sentence since the appellant ought to

have thought of the dependants and refrained from committing the offence instead of

committing an offence and pleading for lenience because of the dependants. G

But as the learned State Attorney, Miss Mwaiteleke has submitted the sentence

imposed is ultra vires the powers of the subordinate court The minimum sentence for

robbery in 1987 was seven years imprisonment. The learned Senior Resident

Magistrate passed a sentence of twelve years imprisonment apparently due to the big

value of the property stolen. H

Under section 170(1) (a) a subordinate court has powers to sentence an offender for a

scheduled offence for a term of imprisonment not exceeding eight years. The learned

Senior Resident Magistrate perhaps misconstrued the proviso in section 170 (2) which

states that:

this section shall not apply in respect of any sentence passed by a Senior Resident

Magistrate. I

1990 TLR 4

A My interpretation of this proviso is that it applies only to section 170(2) and not

to the whole section 170. It means that a sentence passed by a Senior Resident

Magistrate need not be confirmed by the High Court. But it does not give a Senior

Resident Magistrate unlimited sentencing powers. My interpretation is based on the

golden B rule of avoiding absurdities.

I therefore allow the appeal against sentence and reduce the sentence to one of eight

years imprisonment. By way of revision the sentences against the original third and

fourth accused persons, Laitoni Temelayinga Lukosi and C Zavery Chotamasege are

also reduced from twelve to eight years imprisonment.

Order accordingly.

1990 TLR 4

D