Elia Raphael Mwasongole vs Republic (DC Criminal Appeal No 10 of 2000) [2000] TZHC 354 (15 May 2000)

S/A lVOfj IN THE HIGH COURT OF LN ANIA AT MBEYA (DC) CRThINL AIPEAL.N10a 10 OF 2000 (('iginl Criminal Case No. 127 of 1999 of Chunya District Court at Chunya Before: N.M. Kaserero Senior D4iagistrate) ELlA 2APHA}L MWASONGOLE APPJIaJLANT Versus THE REPUBLIC . ,..,.... o. RESPONDENT JUDGMENT This is an appeal against sentence preferred by fir. Ibise, learned advocate for the appellant, Elia Paphael 'wasongole. The learned state attorney for the Republic, i1 ir. i\angela, aeclined to resist the appeal. ifl a properly ceco. ed urequivocal plea of guilty, the district court of. Chnsya convicted the appeflint of two counts: - : First count: House breaking, cOitryto.sction.294(2) of the Penal Code. Second count: stealing, contrary to section 265 of the Penal Code. The appellant was sentenced to terms of imprisonment of five years and one year respectively under the Minimum Sentences Act No. 1 of 1972 , which was ordered to run concurrently. The appellant was a Form Two Student at Chunya Secondary School. His father separated from his mother. He stayed with a step mother who does not like him. He thus lacked parental care and love. On 21,12,99 he broke into the bedroom of his father and stole cash shs.80,0001= and a Camera. He explained in a cautioned statement (bct Pi) recorded on 21,12.99 that he was in need of essential personal effects which his father would not buy for him, so he stole the money. He also explained that he stole the Camera intending to make money by taking photographs. He immediately bought shoes and surrendered shsO'fl/: Pro. the Camera back to his father. As said earlier, the plea of OwOQta0000øO 12 pq

'' cl and properly recorded. The snag, however, was with the sentence. I agree with both learned counsel that the appellant was wrongly sentenced under the provisions of Act No. 1 of 1972. He was under eighteen years of age s and therefore a juvenile as defined in' section 3 of that Act' In terms of section 2 of Act No. 1 of i972 its provisions are not applicabie'to:.juveni1es. The chge 's'het gav" the age of the appellant as 19 years. But, ±hts Wa' an estimation by those who drafted it. The appeJ.le:at did not see the charge shct. he was not brought into the question of age. The question of age was not made part of the plea of , u'iIty proceedings. The apellant knew his age to be. about 16 years. . After conviction and sentence, however, the records at the Chunya' Government District 1 -lospital where thn ,appeilnnt was born revealed that the appellant Was Urn oh This was cèrtified by noneothèr thanthe Ditic't'edicäl Off iei" himeel±, Dr. Ma.u.eta, in ,a letter datea 2 80.2000 'annexed to's eidd methoiandum of appeal filed by Nr. Mbise with leave of the. court, and copy in this appeal file. The appellant therefore, was a juvenile aged about 16 years and four months at the time he was sentenced. The provisions of Act No. 1 of 1972 were thus inapplicable to him. I accordingly allow the appeal and hereby set aside the sentence 'oassed. The appellant Was a schooling youthful first offender who., had pleaded guiltj as weJl. Tre circi.mstances trieiefore crave for leiency. It is generaLly agr6h L.at yuthfu1 first offenders should not, as a rule, be sent to priso ¶&her th're is An opjOrtunity to mix with, and learn had habits from, seasonoe crim nls. " fagee with both learned counsel that emphasis here should be on the reforeative aspect of punishment and the need to promote good and healthy family care and understanding the lack of which had by and large contribute& to the commission of the offences, ll considered, I do not considered it expedient to impose a punishment on th.. Eppeilant who is in consequence, hereby conditionally discharged ......•.,. /3

under section 38(1) of the Penal Code, the coc1ition being that he keeps the peace and commits no offence for a periodof ten (10) months counted from the day he was sentenced He is to be released from prison forthwith0 B. P. MOSHI 4 1 May Q00 For Appellant: Present and represented byMr. Mbise0 ForPepublic: MrNgela0