Israel v. R. Crim. App. 79-Dodoma-71; 28/1/72; Kwikima, Ag. J.

 

Israel v. R. Crim. App. 79-Dodoma-71; 28/1/72; Kwikima, Ag. J.

The appellant was convicted on two counts of fraudulent false accounting and four of stealing by public servant. He received a cumulative sentence of four years which carried the statutory 24 strokes. His appeal against the conviction was dismissed by the High Court as “there was overwhelming evidence against him.” The offences were one single fraud against the same employer, only that the fraud was perpetrated is a series of defalcations which could have been checked had some responsible person cared to act in time. In other words the defalcations were “a series of offences of the same or similar character” such as are referred by s. 136 Cr. P.C. In sentencing the appellant the learned magistrate ordered that sentences on the 2^nd and 6^th counts should be served consecutively. On appeal against conviction:

            Held: (1) “The trial magistrate gave no reason for his order and departed from an approach which the High Court and the court Appeal ‘has approved and adopted for a longtime now’ namely that offences committed in the same transaction should carry concurrent sentences and before any departure is made from this principle the trial magistrate must be satisfied that there are very exceptional circumstances which warrant that course being taken – See R. v. Kasongo Luhogwa 2 R.L.R. (R) 47. [And R. v. Swedi Mukasa (1946) 13 E.A.C.A 97 and R. v. Fulabhai Patel (1946) 13 E.A.C.A. 186]. “In the instant case, the learned trial magistrate does not seem to have any reason for departing from this principle or else he would have given it. The best approach in a situation such as this one is that put forward by Georges C. J. (as he then was) in Shah v. R. ‘The best method of sentencing is to arrive at an appropriate punishment for the entire transaction and award concurrent  terms to meet separate court taking into consideration the maximum punishment fixed for each law.’” (2) The sentences revised reduced and ordered to be served concurrently. “The order for corporal punishment shall stand although the learned trial magistrate should in future make a specific finding as to the age of the convicted person. This omission is however, curable under s. 346 Cr. P.C. since the charge sheet gives the appellant’s age as 32. This Court does on its own motion find the appellant to be 32 years old.”