DIRECTOR OF PUBLIC PROSECUTIONS v FIDELIS ERIO 1988 TLR 88 (CA)

 

DIRECTOR OF PUBLIC PROSECUTIONS v FIDELIS ERIO 1988 TLR 88 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Omar JJA

27th June, 1988

Flynote

Criminal Practice and Procedure - Sentencing - Imprisonment sentence manifestly inadequate - One statute provides for maximum but not minimum sentence - Another statute provides for a minimum sentence.

-Headnote

The respondent, a priest, was charged with and convicted of an offence in connection with elephant tusks. He was sentenced to one day imprisonment. While the Economic and Organized Crime Control Act under which he was charged provided for a maximum of 15 years imprisonment but not a minimum, the Wildlife Conservation Act provided for a minimum of 3 years imprisonment and a maximum of 7 years imprisonment.

Held:: (i) Section 67(2) of the Wildlife Conservation Act provides for a tariff of sentences for the offence of unlawful possession of Government trophies according to value;

(ii) since the value of trophies in this case was over four million shillings and taking into account all the relevant factors the punishment imposed was neglible, inappropriate and manifestly inadequate.

Case Information

Appeal allowed.

Kyaruzi, for the Appellant

Kumwembe, for the Respodent

[zJDz]Judgment

Mustafa, Makame and Omar, JJ.A. This is an appeal by the Republic against the sentence of one day imprisonment imposed on the respondent consequent upon his conviction for the offence of being found in unlawful possession of government trophies to wit, 224 elephant tusks, valued at shs. 4,660,000/-. The Republic was represented by Mr. Kyaruzi, learned State Attorney, while Mr. Kumwembe learned advocate, appeared for the respondent before us as he did also in the lower court presided over by Munyera, J.

The respondent is a reverend father in the Roman Catholic Church, and at the material I time he was the padre in charge of Mchuchu Parish at Mikindani, Mtwara District. He was charged in connection with the A elephant tusks as aforesaid, and in a unanimous judgment by the Economic Crimes Court he was found guilty.

The Republic's complaint was that the trial court took into consideration immaterial factors and left out important ones in sentencing the appellant. The second complaint was that the sentence imposed was manifestly inadequate. Mr. Kyaruzi submitted that the trial court should have taken into account the number of tusks involved and their value, and the prevalence of the grave offence. He also pointed out that under the Wildlife Conservation Act the minimum sentence is three years and the maximum is seven years imprisonment. Read together with the Economic and Organized Crime Control Act the maximum imprisonment for this offence is fifteen years. The position is therefore that a minimum sentence of three years is provided for under the Wildlife Conservation Act.

Mr. Kumwembe, learned advocate, urged this Court to impose a suspended sentence. He submitted that the respondent did what he did because he was naive and he innocently thought he was acting the good samaritan to Aziz. Aziz is the person who allegedly took the tusks to the respondent's residence for safe custody, the villain who has since disappeared into thin air, leaving the respondent holding the baby, figuratively speaking.

The trial court's 'sentence' was about as long as the rest of the judgment. We propose to make only a brief comment on it. The trial court opined that the respondent's conduct was innocent and also made reference to the "surroundings the accused has grown in till this age of 56 (which) made his knowledge of such things as trophy laws very limited, that is why he fell an easy prey to rogue Aziz".

With respect, we do not think that Roman Catholic priests are necessarily that naive and gullible, if that was what the trial court was suggesting. We are satisfied that the respondent is a well-educated and informed person and that, in getting mixed up with the alleged Aziz he knew what he was doing, and that he had his eyes wide open. The trial court made an oblique reference to the respondent's comparatively secluded life. The respondent's life was not all that cloistered and we do not agree that he was all that unworldly. He was going about visiting people, meeting several people in Mikindani town and even drinking coconut liquor with some of them. To expect this Court to believe his story is to be too optimistic. Receiving elephant tusks at about 12 midnight, I and again at 3 a.m., allegedly because Aziz did not want to be seen by thieves and taking the tusks there because there was no other safe place, do not impress us as being innocent. It may be suggested that the nearby Police station at Mikindani was at least as safe a depository as the respondent's official residence.

The sad fact is that the respondent knowingly got mixed up with a person or persons cannibalizing the national economy. In his position the respondent fully knew that he was straying from the ideals he was supposed to personify. He degraded and scandalized his trusted position. It was submitted that the casual stocking of the elephant tusks in a C banda showed his innocence. No, it rather illustrated his

modus operandi, playing rustic innocence, knowing and exploiting the respect and awe with which the parish premises were being treated. The respondent would hopefully be familiar with the ideas enunciated by his right reverend seniors, the Roman Catholic Archbishops and Bishops D of the then Tanganyika, in their Pastoral Letter of 1960, 'The Truth that makes men free', wherein it was propounded that "One cannot be a good Catholic without being a good citizen."

Mr. Kumwembe conceded that under the Wildlife Conversation Act there was no discretion to impose the sentence of one day imposed. As it is known section 67(2) of the said Act provides a tariff of sentences for the offence of unlawful possession of Government trophies according to value. The value of the trophies in this case was over four million shillings. Taking into account all the relevant factors, and disregarding immaterial considerations, the punishment imposed was negligible, inappropriate, and F manifestly inadequate.

In view of the foregoing, we allow the appeal by the Repubic. We set aside the sentence of one day imprisonment and impose in its place a sentence of five years imprisonment.

G Appeal allowed.

1988 TLR p91

A