REPUBLIC v JOHN s/o GILIED 1984 TLR 273 (HC)

REPUBLIC v JOHN s/o GILIED 1984 TLR 273 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

My 4, 1984

CRIMINAL REVISION 68 OF 1983

Flynote

B Criminal Practice and Procedure - Sentencing - Guiding principles when

sentencing a child or a young person - Children and Young Persons Ordinance, s.

22(2).

-Headnote

C The accused aged 15 years, was convicted of causing grievous bodily harm. The

District Ccourt sentenced him to nine months' imprisonment plus twelve strokes

corporal punishment. The case file was called for revision on the propriety of the

imprisonment sentence.

D Held: Before a trial magistrate sentences a young person to any term of

imprisonment he should, by application of his judicial mind and for sound recorded

reasons, have eliminated other methods of legally dealing with such young person as

unsuitable.

Case Information

E Order accordingly.

No case referred to.

F S. Kidela, for the Republic.

[zJDz]Judgment

Katiti, J.: The accused/convict John s/o Gilied, having been convicted as charged the

trial Magistrate proceeded to sentence him. The trial Magistrate's preamble to

sentence speaks loudly G as hereunder:

SENTENCE

An accused is a young one aged 15 years old as per medical proof the wound

he inflicted on the skull of the H complainant showed in fact a maim for life.

Accused is to face (nine) months imprisonment, plus 12 strokes corporal punishment

so as to shock the mind of the accused not to repeat that kind of offence, and make an

example for other many cruel youths, who are in mass prevailing in this District. The

right of Appeal I explained.

1984 TLR p274

KATITI J

SGD: D.M. Mahizi A

District Magistrate

18/11/1983

The said John Giled had hardly seen the gates of the prison, when he was sent back by

the Prison authorities, reminding the trial court of the provisions of section 22, of the

Children and Young B Persons Ordinance Cap. 13. It is for the above reason that

this case has come to us for revision.

As the learned State Attorney Mr. Kidela submitted, certified as it was that the

accused was aged fifteen years of age, then obviously the trial magistrate should have

been guided by the provisions C of the Children and Young Persons Ordinance Cap.

13, generally, and the provisions of s.22(2) of the same chapter in particular. This

sub-section has the following to say, and I quote: D

Section 22 (2). No young person shall be sentenced to imprisonment, unless

the court considers that, none of the other methods in which the case may be legally

dealt with, by the provisions of this or any other Ordinance, is suitable.

It is easy to discern that the provisions of section 22 (2) of the Children and Young

Persons E Ordinance Cap. 13 do not favour the imprisonment of young persons,

unless imprisonment is in the circumstances of the case, the inevitable last resort. It

follows therefore, that before a trial magistrate, sentences a young person to any term

of imprisonment, he should by application of his F judicial mind and for sound

recorded reasons, have eliminated other methods of legally dealing with such young

person, as unsuitable.

Apart from sentencing a young person, to a term of imprisonment which should be

considered as a G last resort, the following methods of dealing with a young person,

upon conviction, give a trial magistrate many options, from which by using his

judicial approach, he may choose one or more methods to deal with the young person

offender.

The trial magistrate may: H

(a) Impose corporal punishment not exceeding twelve strokes - See Section

(6) and 8 (2), of the Corporal Punishment Ordinance Cap. 17. I

1984 TLR p275

KATITI J

A (b) Impose fine, and or order payment of compensation or even costs to be

paid by the parent, or guardian, provided the said parent, or guardian, has been given

opportunity of being heard on the same - see section 21 of Children and Young

Persons Ordinance Cap. 13.

B (c) May place such convicted young person on probation - see section 18 of

the Children and Young Persons Ordinance Cap. 13.

C (d) May commit such convicted young person to an Approved School

where the Manager of such Approved School has informed the court that, there is a

vacancy - see section 24 of Cap. 13.

D (e) The District Court may in addition, or in the alternative.

(i) Discharge the said convicted young person un-conditionally or

conditionally.

(ii) Repatriate him/her at the expense of Government to his/her

home, or District of origin, where E and when circumstances so warrant.

(iii) Hand such convicted young person to the care of a fit person, or

institution named in the order, subject to such person's or institution's willingness

and readiness to undertake such care - See F section 23 of Cap. 13.

In this case, the trial court's choice of imprisonment was not judicially reached,

despite the onesided sentiments that the trial magistrate did demonstrate. Grievous

bodily harm may have been suffered, G and indeed, this was the trial magistrate's

conclusion. Be it as it may, this did not disqualify the said trial magistrate, from

considering what was in the interests of the accused, nor make him succumb to

sentiments that dictated disobedience to the law as

H above shown. I do agree that the complainant suffered grievous harm, but the

trial magistrate should not have been oblivious to the fact that the accused was also a

first offender. And the said accused being a young person, the same trial magistrate,

in coming to his decision to imprison him, he should have shown, why or how in

view of the provisions of section 22 (2) of the Children and I Young Persons

Ordinance, Cap. 13, the other methods of dealing with him

1984 TLR p276

were unsuitable. This he did not. Having considered the case generally, I am of the

view that A imprisonment was not necessarily an inevitable course of action. I

therefore set aside the imprisonment order, but confirm the corporal punishment

awarded. The process to be initiated for the execution of such sentence, subject of

course to the provisions of Section 15 (1) of Corporal B Punishment Ordinance Cap.

17, i.e., the doctor has to certify the accused's physical fitness to undergo the same.

Order accordingly. C

1984 TLR p276

D