LUBAGA SENGA v REPUBLIC 1992 TLR 357 (HC)

 LUBAGA SENGA v REPUBLIC 1992 TLR 357 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

G

4 December, 1992

Flynote

Criminal Practice and Procedure - Sentencing - Mitigating factors - Plea of guilty,

first offender, showing deep sorrow, promise to compensate. H

-Headnote

Lubaga Senga the appellant, was charged under section 269(c) of the Penal Code, Cap

16. He was condemned to 5 years' imprisonment on his own plea of guilty. He I

appealed against the sentence contending that it was excessive.

1992 TLR p358

KATITI J

The Appellant was a first offender and in mitigation he showed deep sorrow for the

A offence, apart from promising to refund the complainant the loss caused to him by

the appellant's wrong acts. On appeal.

Held: (i) Every sentencing process cannot and should not, unless a statutory minimum

B sentence is being administered, avoid individualization of the offence, and the

circumstances of the offender, otherwise the whole exercise becomes mechanical;

(ii) the appellant was, in the circumstances, entitled to more lenient treatment

than he was accorded. C

Case Information

Appeal allowed.

[zJDz]Judgment

Katiti, J.: On the 29/1/1990, one Katiba Umege the complainant, was expecting a

consignment of beer from Arusha, by use of Scania lorry TZ 51559. When it finally D

arrived, the count of crates of beer revealed that two crates of beer, worth Shs.

13,000/= had been consumed to finish, the empty bottles bearing witness to the said

same consumption. Guarding the said beer crates from Arusha was Lubaga Senga, the

E appellant herein. This Lubaga Senga, admitted to have drank some of the same to

quench his thirst, and to have charitably dished some to some passengers.

The appellant was therefore charged, under section 269 (c) of the Penal Code Cap. 16.

He pleaded unequivocally guilty, and hence the conviction on his own plea of guilty.

He F was sentenced to five years imprisonment, subject to confirmation. The

appellant is now appealing against sentence, contending that the sentence was

excessive.

The learned Senior State Attorney Mr. Kaduri, appearing for the Republic, did

concede G that considering the circumstances of this case, the sentence of five years

imprisonment, was on the high side. It has to be recalled, that the offence carries, the

maximum sentence of ten years imprisonment, and that if five years imprisonment is

imposed the hue and cry against the same, would expectedly be less. But every H

sentencing process cannot and should not, unless a statutory minimum sentence is

being administered avoid individualization of the offence, and the circumstances of

the offender, otherwise the whole exercise, becomes mechanical. In this case, the

appellant admitted guilt, a factor speaking mitigatingly in favour of him. He was a

first offender, a I factor eloquently praying for lenience in favour of the appellant,

and to still add, the appellant

1992 TLR p359

KATIT J

contritely begging pardon, and promising to pay, could not have left mercy without a

A smile. The appellant said in mitigation:

I only pray for pardon, some people fooled me in dishing out the beer. I

promise to pay back the value of the beer, I stole i.e. Shs. 13,000/=. I will raise it. B

If the sense of mercy, can still stand smile - less, as a statue of granite, in the face of

such a plea, I do not know, under what circumstances, would mercy be moved in

favour of the pleader. I am of the considered view, that the appellant was in the C

circumstances entitled to more lenient treatment, than he was accorded. In the

circumstances, I am allowing his appeal, and making such order as will result in his

immediate release, unless, he is otherwise legaly held. D

Appeal allowed.

1992 TLR p359

E