Mchome, J.: This is an appeal by Alexander Mpelemba against sentence. He was found guilty with two others of robbery with violence and sentenced to twelve years imprisonment each. The appellant's ground of appeal is that his parents are old and depend on him and that the punishment is "more than I can bear". F
Having dependants is not a mitigating factor in sentence since the appellant ought to have thought of the dependants and refrained from committing the offence instead of committing an offence and pleading for lenience because of the dependants. G
But as the learned State Attorney, Miss Mwaiteleke has submitted the sentence imposed is ultra vires the powers of the subordinate court The minimum sentence for robbery in 1987 was seven years imprisonment. The learned Senior Resident Magistrate passed a sentence of twelve years imprisonment apparently due to the big value of the property stolen. H
Under section 170(1) (a) a subordinate court has powers to sentence an offender for a scheduled offence for a term of imprisonment not exceeding eight years. The learned Senior Resident Magistrate perhaps misconstrued the proviso in section 170 (2) which states that:
this section shall not apply in respect of any sentence passed by a Senior Resident Magistrate. I
1990 TLR 4
A My interpretation of this proviso is that it applies only to section 170(2) and not to the whole section 170. It means that a sentence passed by a Senior Resident Magistrate need not be confirmed by the High Court. But it does not give a Senior Resident Magistrate unlimited sentencing powers. My interpretation is based on the golden B rule of avoiding absurdities.
I therefore allow the appeal against sentence and reduce the sentence to one of eight years imprisonment. By way of revision the sentences against the original third and fourth accused persons, Laitoni Temelayinga Lukosi and C Zavery Chotamasege are also reduced from twelve to eight years imprisonment.
1990 TLR 4