Joseph Bernard vs Republic (Criminal Appeal No. 27 of 2005) [2007] TZCA 216 (20 September 2007)

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 27 OF 2005 JOSEPH BERNARD ........ ■ •••••• ■ •• I •••••••• ■•■ •• ~ ••• I ■ ••••• ■■ •• APPELLANT AND THE REPUBLIC. ■ •••••••••••••• ■■ I •••••••••••••••••••••••• ■■■ • •• RESPONDENT (Appeal from the Judgment and Decision pf the High Court of Tanzania at Tanga) (Mkwawa, J.) Dated the 1 st day of February, 2002 In Criminal Appeal No. 75 of 2001 .•••••......••••.......••••.•....•••••..... JUDGMENT OF THE COURT: 26 June, 2006 & 22 October, 2007 MUNUO, J.A.: appellant, Joseph Benard, was convicted of robbery with violence c/ss 285 and 286 of the Penal Code, Cap 16. The trial court sentenced the appellant to a terni of 15 years imprison~ent and also- ordered him to .pay Sh. 10,000/= compensation to the complainant. I •

2 Aggrieved, the appellant lodged Criminal Appeal No. 75 of 2001 in the High Court of Tanzania at Tanga. The High Court Court

• dismissed the appeal. Subsequently the appellant lodged this second appeal against the conviction and sentence. On the material afternoon, the complainant, P.W.1 Zuberi Mussa, was riding his bicycle when he encountered the appellant walking, at a place called Michungwani at Kilulu Village within Muheza District. The complainant did not know the appellant before then. At that time, the appellant asked for a ride on P.W.l's bicycle, a request the latter refused. As P.W.1 cycled on, the appellant pelted the bicycle with a stone causing him to fall down. The appellant then caught up and struggled to seize the bicycle from P.W.1. P.W.1 fought to keep his bicycle but when the appellant threatened him with a. knife;._. he rle_aseq tt) bicycle so the appellant rode off. • •'" .,• ... -~ • ••' •: r • •..-."-"•.•••••••.,~ --:.~ • .:•;;. ,. • • •" -••• ... , ~ :. • • ,,:•• ."~• • • ~•: • •• • Meanwhile, P.W.1 raised a thief alarm. P.W.2, P.W.3 and P.W.4 responded to the thief alarm. The appellant saw people ahead of him so he abandoned the bicycle and ran away. The people purs □ ed, arrested and turned him over to the police together with the stolen

-, - i i· . Iii_.' •

.... - . n 3 bicycle. Thereafter he appeared in court to answer the charge of robbery with violence. The recovered bicycle was tendered as Exhibit A. In the robbery attack, P.W.1 suffered a cut wound on the head as shown on his PF3, Exhibit B. In--his swofn defence, the appellant denied the charge. He claimed that he was arrested on suspicion beca·use he happened to be passing by the scene of crime during the thief alarm. The appellant filed 4 grounds of appeal complaining that the courts erroneously convicted him by shifting the burden of proof to him. He faulted the courts below for failing to_ evaluate the prosecution evidence. He asserted, furthermore, that the ingredients of the offence of robbery with violence were not established so he hqu_lq have bee,n c;1cquitted. He thenc prayed that we quash the :,. "" ,' • • ., • < ' J . ., ; • •., . ; • •• 'h .• l>, • • I r ~ • :.. • -. conviction, set aside the sentence and order. At the hearing, the appellant reiterated-his-innocence. He denied involvement in robbery of the complainant's bicycle, which he

.. - 4 said, he found lying on the road. He, furthermore, complained that he could not properly defend himself because the statements of the prosecution witnesses were not availed to him. Ms Christina Maganga represented the respondent Republic. __ . . - -------------- sii_$upp_octed-tt-le-eonviction andurged us to do the same on the . ---- ground that the guilt of the appellant was proved beyond all reasonable doubt. She pointed out that upon P.W.1 raising the thief alarm; P.W.3 and P.W.4 intercepted and captured the appellant who was then being chased by the people in response to the thief alarm the complainant had raised. With regards to the non-availability of the statements deponed to by the witnesses, the learned State Attorney contended that the record shows that the appellant did not request to be supplied with the said statements during the trial said statements would have been issued to him under the provisions of Section 9 (3) of the Criminal Procedure Act, 1985.

n ' . 5 As for the sentence of 15 years imprisonment, the learned · State Attorney contended that the said sentence is unlawful. She pointed out, rightly in our view, that the appellant used a knife to accomplish the robbery of the bicycle so the mandatory minimum sentence of 30 years imprisonment should have been imposed on him. The learned State Attorney cited the cases of: Rungu Juma versus Republic (1994} TLR 176; and Michael Joseph versus Republic {1995} TLR 278; wherein the Court enhanced sentences from 15 years because lethal weapons were used in the robbery, as was the case here. The issue is whether the appellant committed the charged robbery with violence. When the appellant encountered the complainant who was riding-a bicyGle;- he-asked-for--a ride which request the latter refused. As the complainant rode on, the appellant hurled a stone at the

. . . 6 bicycle causing it to fall down. He then struggled to seize the bicycle from the complainant. During the confrontation and fight over the bicycle, he threatened the complainant with a knife so the latter backed down to save his life, thereby giving up the fight over the bicycle. The appellant then rode off. Meanwhile the victim raised a thief alarm. Villagers responded and pursued the thief who in turn abandoned the bicycle and started running. The people intercepted and apprehended the thief, the present appellant, as deposed by P.W.3 Maria Kimathi and P.W.4 Saidi Rajabu. We are of the settled view that these facts constituted the ingredients of robbery with violence. We are, furthermore, satisfied that the scheduled sentence is 30 years imprisonment. In the case of Rungu luma versus R cited supra, the appellant was charged with the offence of robbery with · · · o;,•· • • • • • _ • _ "... • • • - • • - • -:· • • : .t /:. • :: .. • ;. ,..'--:' ---~~ :: --- .. :- • -:;: •• :. i-- .. :: - i-.!---!; ~~¼:.?i:~f":)is;: 11·~:.'·:· -•'.';. ·;i·•,--~~::_ !l ::··;-,. s:·-l::--<:J'::.-,..:.; · - ; . : .. .. :r-· violence c/ss 285 and 286 of the Penal Code, Cap 16. The trial court convicted and sentenced him to 15 years imprisonment. On appeal, the High Court varied the sentence by substituting the 15 years with the scheduled mandatory sentence of 30 years imprisonment.

7 Aggrieved by the enhancement of the sentence, Rungu Juma appealed to this Court. The Court held: On the totality of the evidence, the appellant was rightly convicted of robbery with violence as charged and in view of the amendment of the Minimum Sentences Act, 1972 by Act No. 10 of 1989 the High Court rightly enhanced the sentence to thirty years imprisonment. Likewise, in the case of Michael Joseph versus R, also cited supra, the appellant used a knife in the robbery with violence. The Court considered whether a knife falls in the category of arms and held: . . .,;-f,..,,;:--:··}r -; .· '•. ·.'.::"'·,-:·> .. -·}··•: .: ·::,.:-.-.,, ;., .,/_; .-·.,·.?'-- .. ::. ·;·-:~ ' . ..., (i) Though there is no express and specific definition of what constitutes armed robbery it is clear that if a dangerous or offensive weapon or

8 instrument is used in the course of a robbery such constitutes armed robbery in terms of the law, and, or as amended by Act No. 10 of 1989. (ii) Weapons are not confined to firearms only, other types of weapons such as knives are also included. (iii) The offence involving the appellant was armed robbery. We have no doubts in our minds that the scheduled Minimum Sentence of 30 years imprisonment is the correct sentence in this case because the appellant threatened the complainant with a knife during the robbery of the bicycle. For the reasons stated above, we find no merit - in this appeal.

n \ \ i \ 9 We accordingly dismiss the appeal against conviction. We set aside the unlawful· sentence of 15 years imprisonment and substitute therewith the scheduled mandatory Minimum Sentence of 30 years imprisonment. DATED at DAR ES SALAAM this 20 th day of September, 2007. L. M. MAKAME · JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.