Mamuya v. R. Crim. App. 230-D-1971, 8/11/1971; Onyiuke J

Mamuya v. R. Crim. App. 230-D-1971, 8/11/1971; Onyiuke J

The accused pleaded guilty to a charge containing 14 counts, a number of them being forgery c/s 337 of the Penal Code, the others being stealing by public servant c/s 270 & 265. He was sentenced to 12 months on the forgery counts, and 4 years on the stealing counts. He appealed against sentence. He was the postmaster at Kondoa Post Office and on various dates in December 1969 he forged withdrawal forms with which he withdrew money on post office pea’s books belonging to some deposition. One question raised was whether the stealing was a scheduled offence under the Minimum Sentences Act.

            Held: (1) “The appellant was employed by the Post and Telecommunications Department which is an organ of the Community he was therefore employed in the public service as defined by section 5 of the Penal Code. The question however was whether he stole this money by virtue of his employment. The appellant obtained this money came to him by virtue of his employment? I think it did. He was in charge of the post office withdrawal forms by virtue of his employment. The money which he belonging to the Posts and Telecommunications Department and was in the

appellant’s possession or under his control by virtue of his position as the postmaster in charge of Kondoa Post Office. Although he purported to withdraw the money on pass books belonging to private depositors the money belonged to the Posts and Telecommunications Department and not to the private depositors. The forgery was a means by which the appellant stole the money which was in his possession or under his control by virtue of his employment. Alternatively the appellant who was employed in the public service stole money which belonged to his employers. This is enough to make it a scheduled offence. (See Paragraph I of the Schedule to the Minimum Sentence Act).” (2) “The next point was whether the sentence was so manifestly excessive as to warrant interference. ……… the question is whether there were such circumstances of aggravation as to justify imposing more than the minimum sentence. The learned magistrate in passing sentence held that this kind of conduct would discourage people to deposit their money with the banks and thus defeat the efforts of the banking instructions to encourage savings. I agree that this was an aggravating circumstance but the learned magistrate did not consider the mitigating circumstances in the case. The appellant was first offender and stood to lose the benefit of his 19 years in the public service. The amount involved was not too large and the appellant pleaded guilty to the charge. The forgeries took place within a short period of one month. The appellant was ordered to refund the amount stolen. I agree with the learned State Attorney that in view of these mitigating circumstances the sentence was excessive.” (3) Sentence reduced to thirty months imprisonment.