D. P. P. v. Conerachuma Crim. App. 109-Dodoma-71; 2/3/72; Mnzavas, J

 

D. P. P. v. Conerachuma Crim. App. 109-Dodoma-71; 2/3/72; Mnzavas, J

The respondent was convicted on his own plea of guilty of forgery and stealing. He was sentenced to absolute discharge in so far as the charge of forgery was concerned, and to 10 strokes corporal punishment on the count of stealing. The Republic being dissatisfied with the sentence imposed with respect of the charge of stealing brought the appeal under Sec. 334 of the Criminal Procedure Code. The Republic argued that according to the Minimum Sentences Act     ……      this was not a case where leniency could be exercised, and that therefore the magistrate ought to have imposed a sentence of 2 years imprisonment and 24 strokes corporal punishment instead of 10 strokes.

            Held: (1) “Before the provisions of section 5 (2) are invoked in favour of an accused the property obtained or attempted to the obtained in committing the offence must not exceed Shs. 100/= Once it is shown that the property stolen or attempted to be stolen exceeds Shs. 100/= the fact that an accused is a young man and a first offender becomes of very little help to an accused’s youthfulness can be and was properly taken into account as a special circumstance by the trial magistrate. But the learned magistrate failed to direct his mind to the fact that the respondent admitted stealing Shs. 184/65, property’s of the Government. This amount is clearly more than Shs. 100/= and as such removed the magistrate’s discretionary powers to exercise leniency under section 5(2) of the Minimum Sentences Act. I agree with the Republic that the trial magistrate was wrong in sentencing the respondent to 10 strokes corporal punishment instead of sentencing him to 2 years imprisonment and 24 strokes corporal punishment.”

(2) “The argument by the learned state attorneys on 28/2/72 that Act No. 1 of 1972 had removed corporal punishment in scheduled offences was not, strictly speaking, correct. The Act which repeals and replaces the Minimum Sentences Act, Cap. 526, had not come into operation on the day the accused was convicted of the present offence. Nor had it come into operation on 28/2/72 when the appeal by the Republic was heard. The Act, the Minimum Sentences Act 1972, has since however come into operation. It came into operation yesterday (1-3-72) by virtue of section 1(1) thereof. Reading section 1(1) and (2) in conjunction with section 12(1) of the new Minimum Sentences Act it is clear that the sentence of 24 strokes corporal punishment which, but for the new Act would have been mandatory, has now been overtaken by events. Sentences of imprisonment passed under Cap. 526 are saved by the proviso to section 12(1) of the new Act – The Minimum Sentences Act 1972.” (3)”In mitigation the respondent has prayed for leniency saying that he has since refunded the Shs. 184/65 he stole and that he has already received 10 strokes corporal punishment. I agree with the respondent that this is one of those few cases which need more compassion than condemnation, but, much as I would have liked to be lenient to the respondent I cannot do any better than to comply with the mandatory provisions of Cap. 526, diluted as they are, by section 12(1) of the Minimum Sentences Act 1972. (4) The accused is sentenced to 2 years imprisonment the sentence he should have received had the trial magistrate not misdirected himself.