Republic vs Deonatus & Mkungu S/O Bwire ()  TZHC 18 (09 June 1984);
Katiti, J.: Before Ukerewe District Court was Deonatus & Mkungu s/o Bwire charged under section 271 and 265 with stealing by servant. At the end of the trial, the same E accused was found guilty, convicted as charged, and sentenced to 12 months' imprisonment. Following on its heels was a compensation order, that the accused should pay Shs. 1,093/40 as compensation to the Government. The accused has not appealed.
This record has been called for revision because it has revealed two unsatisfactory F aspects: First the charge itself, and second, the sentence imposed. I shall first deal with the charge. Having looked into the evidence, I am satisfied that it is very clear, that the accused person was employed as a Court Clerk, attached to Kabigo District Court in Ukerewe District, Mwanza Region. It is equally clear, that the amount Shs. 1,093/40, G was both the property of the Government, and come into his possession by virtue of his employment as a Government Servant. He was therefore a person employed in Government Department i.e. the Judiciary, and he should have been charged under Section 270 and 265 of the Penal Code, with stealing by person employed in Public H Service. Although charging the accused under 271 and 265 of the Penal Code was obviously an error, it does not seem to me, that the accused was prejudiced thereby. For I am sure there was no mistake in the accused's mind, as to his employment in Government Service i.e. the Judiciary. I shall therefore I
amend the conviction to read under ss. 270 and 265 of the Penal Code, rather than A under section 271 and 265 of the Penal Code.
Second aspect is the sentence that was imposed upon him. In his own mitigation the accused had the following to say and I quote:
"I am a convict in prison for a term of eight years, I pray for the leniency of the Court." B
The trial magistrate in sentencing the accused had the following to say in his preamble to sentence, and I quote:
The accused is a first offender. I have taken into consideration as a special circumstance, that C the accused is a convict in which he is serving a minimum sentence of eight years in jail. In this case I admit that the court can take a special circumstance and impose other sentence than the Minimum Sentence Act No. 1 of 1972. In this case I sentence the accused to twelve (12) months' imprisonment. D
With due respect to the trial magistrate, I must say that his preamble to and finally the sentence are full of errors both of fact and law. Firstly, on the accused's own admission E that he had previously been convicted of an offence and was serving a sentence under the Minimum Sentences Act, assuming when he committed this offence, he had previously been convicted, how the magistrate could treat him as a first offender boggles my mind. Secondly taking the accused's previous conviction, - i.e. the sentence he is F serving as special circumstance, for non-application of the Minimum Sentences Act, is contrary to logic, law and principles of sentencing. For under normal circumstances, even where the Minimum Sentences Act is not applicable, the fact that the accused has been previously convicted, may justify heavier sentences, as such previous conviction (s) G more often than not, demonstrate such accused person as a habitual criminal.
All the same, it is the law that where a person is convicted of a scheduled offence (under the Minimum Sentences Act 1972 section 5) and the trial court is satisfied that such convicted person, within seven years preceding the date when he committed such H offence, had been convicted of a like or scheduled offence, the trial court shall sentence him to imprisonment for a term of not less that five years. I am however, reluctant to lean against these provisions. For the record we have does not reveal that the accused had, I seven years preceding the date the same accused committed this offence, been convicted of similar, like or scheduled offence. The unceasing fear
here is that the two cases may have overlapped each other at the investigatory stage, but A the conviction reached in one case during the pendency of the current one. For different reason therefore, I find it unsafe to apply the provisions of section 5(a) of the Minimum Sentence Act 1972.
But this is not to say that this is a case or material to which the Minimum Sentence Act B 1972 does not apply. Even if for technical but obvious impediment, the accused was a first offender, so long as the amount stolen exceeded one hundred shillings, and belonged to a specified authority - the Government - at least the provisions of section 4 of the C Minimum Sentences Act 1972, are inevitably attracted for application. That means the twelve months' imprisonment sentence was still illegal. I shall proceed therefore to set aside the 12 months' imprisonment sentence which is obviously illegal and impose 3 (three) years' imprisonment, under the provisions of section 4 of the Minimum Sentences Act 1972. D
E Order accordingly.