William Frank Haining and 2 Ors. v. Rep. Crim. App. 82-D-71; 14/12/71; Duffus, P. Lutta and Mustafa, JJ. A.

William Frank Haining and 2 Ors. v. Rep. Crim. App. 82-D-71; 14/12/71; Duffus, P. Lutta and Mustafa, JJ. A.

This was an appeal against sentence. The first and second appellants pleaded guilty to count 2 of the information which, as amended, charged them with obtaining money by false pretence contrary to section 302 of the Penal Code, for that in the month of May, 1969, with intent to defraud, they obtained from the Government of Tanzania Shs. 513, 343/10 by false pretences. Both these appellants were sentenced to 2¹/₂

Year’s imprisonment and the sentence on the first appellant were ordered to be served concurrently with the sentence passed at an earlier trial for the offence of corruptly receiving a motor car. This offence was connected with the present ones. (See (1970) H.C.D.171). In addition to this sentence the court, acting under the provisions of section 176, subsection (1) of the Criminal Procedure Code made an order for compensation against the first and second appellants, jointly and severally, to pay to the Attorney-General of Tanzania the sum of Shs. 513,343/10 in respect of the loss suffered by the Government. The third appellant pleaded guilty on count 4 of the information for occasioning a loss to his employer – the Government – contrary to section 284A of the Penal Code, for that between the 5^th February, 1969, and the 15^th May, 1969, he caused the Government to suffer a loss of Shs. 513,343/10. The third appellant (who was the fourth accused on the information) was sentenced to 18 months imprisonment and, along with a third accused person who has not appealed, was ordered, by virtue of the provisions of section 284A (7) of the Penal Code to repay to the Republic of Tanzania compensation in respect of the sum of Shs. 513,343/10 loss by the Government. The third accused (Green) was, on account of ill-health, given a suspended sentence under the provisions of section 394A of the Criminal Procedure Code.

            Held: (1) “Imposition of a sentence except where the sentence is fixed by law, is a matter which lies in the discretion of the trial judge and an appellate court will not interfere except where it appears that in assessing the sentence the trial judge has acted on some wrong principle, or has imposed a sentence which is manifestly excessive or inadequate.” (2)”This offence [Obtaining by false pretences] carries a maximum of 3 years imprisonment but the learned Chief Justice, after full consideration of all the facts, imposed a sentence of 2¹_/2 years imprisonment and directed that this sentence should run concurrently with the sentence passed at an earlier trial in Criminal Sessions, Case No 295 of 1969. The main submission on this appeal is that this sentence constitutes double punishment for what was, in effect, the same offence. The short answer to this complaint is that in fact this was not the same offence but two different offences, and further, that this question does not now arise as the trial court has already ruled against the submission of autrefois convict and the appellant has accepted this ruling by specifically pleading guilty to this charge. It was also argued that the judge in the former case did take the facts constituting this present offence into account when he sentenced the appellant at that trial … On the other hand, it was agreed at this appeal that the judge did not, in passing sentence in that former trial, act under the provisions of section 290A of the Criminal Procedure Code which deals with the taking of other offences into account. These facts were all considered by the learned Chief Justice in this case and the legality of his sentence has not been questioned. The learned Chief Justice did apparently take into account that the two offences were

To a large extent based on the same facts when he gave the concurrent sentence but the length of the sentence in this charge was a matter within his discretion and we cannot see that he acted in any way improperly. We see no reason to interfere with the sentence and we dismiss the first appellant’s appeal against his term of imprisonment.” (3) “The second appellant was also sentenced to 2¹/₂ years imprisonment but there appears to have been a genuine misunderstanding as to whether this appellant was in custody awaiting trial in this case or whether he was in custody on a detention order. The Chief Justice appears to have been under the impression that he was kept in detention on some other charge and was not in custody awaiting trial in this case. However, both the learned advocates for the appellant and for the Republic agreed from the Bar that, in fact, the appellant was in custody awaiting trial in this case as from the 22^nd April, 1970. He was sentenced on the 30^th March, 1971. It does appear, therefore, that the learned Chief Justice was not aware of the true facts of his arrest and remand in custody awaiting trial or he would have taken this period of his being in custody into account when passing sentence. We would therefore accordingly reduce the sentence of 2¹/₂ years imprisonment and in lieu thereof substitute a sentence of 19(nineteen) months imprisonment.”(4)”We can see no reason to interfere with the sentence of 18 months imprisonment imposed on the third appellant and his appeal in this respect is dismissed.” (5) “The order for compensation under section 284A(7)of the Penal Code is a mandatory order … The question of the court’s acting under subsection (7) was fully considered and argued before the Chief Justice when he was considering sentence and the appellant’s advocates had the opportunity and did, in fact, put forward various extenuating circumstances in the appellant’s favour. The learned Chief Justice fully and correctly considered the provisions of subsection (7) of section 284A in making the order for compensation against the third appellant and we can see no reason to interfere with order and the third appellant’s appeal against the order for compensation under section 284A is therefore dismissed.”(6) “We now consider the question as to the order for compensation under section 176 of the Criminal Procedure Code … The necessary requisites for an order for compensation are … (1) that it appears to the court from the evidence that the prosecutor or a witness in the case has suffered material loss or personal injury as a consequence of the offence; (2) that substantial compensation would be recoverable by that person in a civil suit; and (3) the court then, in its discretion, may order the convicted person to pay such compensation as the court deems fair and reasonable. Before, therefore, the trial court orders compensation it must be satisfied and decide that these requirements exist. This means that the court must consider and judicially determine first the factors (1) and (2) set out above and then exercise its discretion and make such order as it deems fair and reasonable. Compensation is not a punishment as such but is an order made in addition to any other punishment and is

An Endeavour to settle, in a summary manner, any civil loss that the prosecutor or witness in the case may have suffered as a result of the offence. A convicted person would not ordinarily expect that an order for compensation would necessarily follow his conviction; thus, for an offence of obtaining money by false pretences under section 302 of the Penal Code the punishment set out in that section is imprisonment for three years. An order under this section is imprisonment for three years. An order under this section would usually be made on the application of the prosecutor but if not a court may clearly act on its own accord but in doing so it is performing a judicial act which would materially affect both the party receiving the compensation and the convicted person who has to pay the compensation. It is essential here that these persons and more especially the convicted person should be called upon to show cause why and order should not be make. To do otherwise would be a breach of natural justice and would amount to a person being condemned without having a hearing. The necessity for this to be done would appear from the facts in the case. Thus, in considering the first essential, that is as to whether material loss has been suffered by the prosecutor or the witness, the question arises here as to whether this loss was suffered in consequence of the act either of the first and/or of the second appellant. In this case the court did not hear all the evidence and a plea of guilty were entered and there was no evidence as to the details of the loss suffered. There might have been other factors affecting the actual amount of the loss. As to the second essential, as to whether the first and second appellants would be liable to pay compensation in a civil action, the question arises as to what would be the liability of the first appellant. His liability, if any, would appear to lie in tort but the question would be, what would be the cause of action and, as for the second appellant, [counsel] pointed out that one question is whether the action would lie against his firm, to whom apparently the excessive amount was paid under the contract, or would the second appellant be personally liable? The, on the question of the assessment of the compensation, this is a matter in the discretion of the judge but in exercising this discretion and in deciding what amount would be deemed fair and reasonable the court could properly take into consideration the fact that the first appellant has lost, to the advantage of the Government, his pension and compensation rights, and the fact that apparently the second appellant has had his house, cars and other property confiscated. All these would be matters that would need investigation and consideration and it would be absolutely essential in the due discharge of justice that the convicted person be heard before an order is made. We would therefore allow the appeal of the first and second appellants against the order for compensation made under section 176 of the Criminal Procedure Code.”