Iddi Fundi vs Republic [1987] TZHC 30 (9 September 1987)


Chipeta, J.: In Tabora District Court, the appellant Iddi Fundi, was charged on six counts of stealing by public servant c/ss 270 and 265 of the Penal Code.  He was convicted as charged and was sentenced to concurrent prison terms of seven, three, G three, five, three and three years respectively.
Dissatisfied, the appellant now appeal against the convictions as well as the sentences.
The prosecution's evidence was that prior to his being convicted, the appellant was H employed in the Judiciary as an accounts clerk, and at the material time he was attached to Tabora Urban Primary Court.  Among his duties was the collection and banking of revenue received in that court.
On divers dates between 19th May, 1984 and 13th December, 1984, the appellant I received a total of Shs. 22,658/75 which he did

not remit to the bank and for which he otherwise failed to account. A
When these shortages came to the knowledge of the appellant's immediate superior (P.W.2), P.W.2 took the appellant to the District Magistrate in-charge before whom the appellant admitted having converted the money to his own use.  He was then given two B weeks within which to refund the money.  He failed to do so, and so the matter was reported to Police.
In his defence, the appellant said that he just discovered that the money was missing from the store.
After carefully valuating the evidence, the learned senior resident magistrate was satisfied C and found as a fact that the appellant had received the money in the course of his duties, that he had not banked it as he was supposed to do, and that he had otherwise failed to account for the same.  The learned magistrate accordingly inferred that the appellant had converted that money to his own use and so convicted him as charged. D
I entirely and respectfully defer to the learned magistrate's reasoning and conclusions.  Both the oral and documentary evidence established beyond a shadow of doubt that the appellant had received the money and failed to account for it.  At all material times he had custody of the keys of the store where the money was kept, and at no time was that E store broken into.  The irresistible inference, therefore, must be that the appellant converted the money to his own use.  The convictions, therefore, were fully justified.
I now turn to the sentences.  The appellant was a first offender and relatively young.  In F mitigation, he told the trial court that he was married with three children, and that he also had parents who depended on him.  Before this Court he repeated those pleas and added that his father has since died.
In assessing the sentences, the learned magistrate took into account those factors, but he G appears to have been greatly influenced by the fact that such offences are rampant in the country.
I entirely and respectfully agree that the prevalence of a particular type of crime is a very relevant factor.  However, this material factor must be considered along with other H aggravating or mitigating factors.  Among the important mitigating factors are the accused's past-record, his age, the value of property involved, the degree of sophistry involved in the commission of the offence, and the reformability of the offender, not forgetting, of course, his family commitments and, where relevant, his loss of employment as a result of conviction. I
In the present case, the appellant was a youthful first offender

aged 26 years, he has a relatively large family to support, the amount involved cannot by A any means be said to have been colossal considering the long period over which the thefts were made, the manner in which the offences were committed was not at all sophisticated, and there is also the certain fact that a result of those convictions the appellant has lost his employment and benefits. B
When those factors are considered together with the aggravating factor of the prevalence of the offence, in my view, the appellant deserved some measure of leniency.
It is for these reasons that I respectfully agree with Mr Tendwa, learned state attorney, that the substantive sentence of seven years imprisonment was excessive.  In my view C the minimum sentence of five years imprisonment as the substantive sentence would have met the justice of the case.
Accordingly I hereby set aside the sentence of seven years imprisonment in respect of the first count and substitute therefore a sentence of five years imprisonment to run D concurrently with the rest of the sentences which are left undisturbed.  The order of compensation will also remain undisturbed.
Save for the variation of the substantive sentence, this appeal is otherwise dismissed. E
Appeal dismissed.


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