AUGUSTINO MPONDA v REPUBLIC 1991 TLR 97 (HC)

 

AUGUSTINO MPONDA v REPUBLIC 1991 TLR 97 (HC)

Court High Court of Tanzania - Mbeya

Judge Mchome J

14 August 1991

Flynote

Evidence - Evidence of co-accused - S.33 of the Evidence Act 1967. B

Statutory Interpretation - S.172(2) Criminal Procedure Act 1985.

Criminal Practice and Procedure - Sentencing - Minimum Sentences Act 1972.

-Headnote

Augustino Mponda, the appellant was jointly charged with six others with burglary

and stealing c/s 294 (1) and 265 C of the Penal Code, Cap. 16, respectively. The trial

court convicted him relying on the evidence of a co-accused which was not

corroborated independently. His colleagues were acquitted.

The offence committed was punishable under section 5 of the Minimum Sentences

Act 1972. However, the trial D magistrate committed the appellant to 4 years'

imprisonment, far below the prescribed minimum sentence. In passing the sentence

the magistrate was purportedly guided by section 172 (2) of the Criminal Procedure

Code 1985. E

Held: (i) In convicting the appellant relying on the evidence of a co-accused without

independent corroboration, the trial magistrate acted contrary to the provisions of

section 33 of the Evidence Act 1967. F

(ii) my interpretation of section 172 (2) (c) of the Criminal Procedure Act 1985

is that the period an accused has stayed in a remand shall be considered together with

other mitigating factors while sentencing.

(iii) in the case of a scheduled offence under the Minimum Sentences Act

1972, the period shall be taken G into account while deciding what sentence is

appropriate between the minimum and the maximum.

Case Information

Appeal allowed. H

Mbise for the respondent.

[zJDz]Judgment

Mchome, J.: The appellant, Augustino Mponda was jointly charged with six others

with Burglary and stealing I contrary to section 294 (1) and 265 of the Penal Code

respectively. He was found

1991 TLR p98

MCHOME J

A guilty and sentenced to four years imprisonment on the first court and two years

on the stealing court. All his colleagues were found not guilty and acquitted. Being

aggrieved by both convictions and sentence the appellant has preferred this appeal.

B On 14/7/89 one house belonging to SIDO Njombe was broken into and a lot of

property stolen therefrom. These included one washing machine, one gas cylinder,

one gas cooker, a grinding machine and a washing brush. The total value of the

stolen property is TShs. 109,000/-.

On 16/7/89, P.W.I., Detective Constable Edon received information that the stolen

property was hidden in the C house of a certain Aderehema Mbilinyi, the original

first accused person. With the help of another police detective P.W.I. went to the

house and discovered the stolen property. O.W.II Selestine Rwenyagira, the SIDO

Estate Manager identified the property as that of his company.

D Both Aderehema and the original 2nd accused person, one Rose Mvile, occupants

of the house therein the stolen property was found named the appellant as the one

who brought the stolen property into their house at 2.30 a.m. together with some

friends of the appellant's.

E Despite the appellant's denial the trial court found him guilty. The learned State

Attorney Mr Mbise did not support the conviction. He was right in doing so. For the

trial court relied on the evidence of a co-accused without independent corroboration

to convict upon. The evidence of D.V.8 cannot be said to be independent as he is the

F son and brother of the original 1st and 2nd accused persons respectively and had an

interest to save them as they are obviously guilty receivers. The trial Magistrate

therefore acted contrary to the provisions of section 33 of the Evidence Act 1967 in

convicting the appellant.

G There is no reason why the trial Magistrate acquitted the original 1st and 2nd

accused even of the lesser offence of receiving stolen property. The odd hours in

which they receive the property, 2.30 a.m., showed they knew or ought to have

known the property to be stolen. I can not revise that acquittal here as it will be

prejudicial to the H original 1st and 2nd accused persons who have not had

opportunity of being heard.

The sentence of four years imprisonment is below the prescribed minimum under the

Minimum Sentences Act, 1972. The value of the property stolen is well over Shs.

5,000/=. The trial Magistrate misinterpreted the provisions I of section 172 (2) (c) of

the Criminal Procedure Act 1985 which states:

1991 TLR p99

MCHOME J

Where ... a person has been in remand custody for a period awaiting his trial;

his sentence whether it is under the Minimum A Sentences Act, 198=72 or

otherwise, shall start to run when such sentence imposed is confirmed, as the case

may be and such sentence shall take into account the period person spent in remand.

(The underlining is mine)

Section 172 (2) (c) above quoted does in no way amend the Minimum Sentences Act,

1972. The provisions of B Section 5 of the Minimum Sentences Act, which are

applicable to this case are Mandatory. They state: ... the court shall sentence person

to imprisonment for a term of not less than five years". C

If the legislature had intended to ammend the Minimum Sentences Act it would have

done so under no uncertain terms and included the period an accused has stayed in

remand as one of the circumstances in which a court may not apply this Act in

Section 6 of Act No. 1/72. D

As there are no uncertain amendments to the Minimum Sentences Act, its mandatory

terms have to be interpreted strictly. "Minimum" means "not less than". My

interpretation of section 172 (2) (c) of the Criminal Procedure Act E 1985 is that the

period an accused has stayed in remand shall be considered together with other

mitigating factors while sentencing.

In the case of a scheduled offence under the Minimum Sentence Act, 1972 the period

shall be taken into account while deciding what sentence is appropriate between the

Minimum and the Maximum. In other words it is to help F the sentencing

magistrate or judge on how much above the minimum sentence he should go in

sentencing the accused. Going below the prescribed minimum is clearly unlawful.

Otherwise it would be absurd were an accused stays in remand for one year the

magistrate deducts one year from G the mandates minimum sentence. And when he

stays in remand for five years where the prescribed minimum sentence is five years

an accused goes free.

Be that as it may, I allow this appeal, quash the conviction and set aside the sentence,

the appellant is to be set free H immediately unless held for some other lawful cause.

Appeal allowed.

1991 TLR p100

A