Thomas Sizande and Another vs Republic (Hc Criminal Appeal No. 18 of 1998) [1998] TZHC 2339 (27 November 1998)

IN TEE EIGH COURT OF TANZl\NIA AT MBEYP. HIGH COURT CR~ 1 1INAL · ii.PP}AL NO. 18 OF .:1998 (Original Criminal Case Noo139 of 1997 of the District Court of Mbozi District at Vwaa · Before: J .L. Lupe!nza - Senior District Magistrate) THOMAS SIZANDE ) FRID/.Y MW.ANG I AMBA~ • • 0 0 • • • 1 • •" • • • • 1 t APPELLANTS Versus THl~ REPUBLIC •••••oooobDll!SoetoaOcooo RESPONDENT JUDGMENT l-iOSHI J • .. -!:.1-..- I consolidated the hearing of these t\10 appeals. Both appellants; Thomas s/o Sizande, and Fr.iday s/ o Man3 1 a.mba, were jointly arraigned be fore the district court.of Mbozi on one count of Unlawful possession of firearm, contrary to section 20 of the First Schedule to, and nection 59(2) of, the Economic and Organized Crime Control r.ct No.13 of 1984, as amended by Acts Nos. 10 of 1989 and 3 of 1992, read togcthr· with sectiorrs13(1) and 31(2} . . . . of the ,'..rrns and Ammunition Ordinance Cap. 223. 1

Ther_- appears to have been an irregularity which obtained in the s_ection and the law cited for the offence charged. The offence was committed 0n. ·, 29.11.97 when, as rightly submitted by the learned Senior State Attorney, Mrsg Makuru, the offence was not an economic offence. Section 65 of Act No. 9 of 199? deleted }?E,:r_fl;eh 2.Q. Af First Schedule to :ii.ct No. 13 of 1984, and ii.ct No. 31 of 1997 Assented to on 11.'12.97 reintroduced it as Parra.£,l} .12• The irregularity, however, did not occasion a failure of justice, and it is curable under section 388 of the Criminal Frocedure Act 1985, on account of that the offence charged remained. an offence under sectJons 13(1) and 31 (2) of Cap. 223, as amended by the Third .Schedule to Act No· 13, of. 1984. The appellants pleaded guilty to the. charge with the result that they were convicted as t:n-,. ...... t:,-.rl. and each sentenced t-o ten years irrrprisonnient. \ 1.. ;# • 11 • e • • • e o • /2

..... 2 'I'he conviction and.sentence aggrieved trem, hence these appeals which were resisted before me by Hrs •. tv1alru;11..,in the p:i;-esence of both appellants who abided by the contents of l_leirmemoraridum of appeal. 'rhe conviction of. the . appellants, as a.lread.y said, was consequent upon their own pleas of guilty wbich, I am satisfied., were unequivocal in the circumstances. 'rhe appellants, therefore, had .no right' of appeal against the conviction in terms of section 360(1) of the Criminal. Procedure Act 1985. These provisions of the -law,· which -are couched irl ruc;lndatory terms, deny an ~ •• w • - ' • •• • • - • ' • • • accused, who bas been convicted by a subordinate court on his own plea of guilty, the right to appeal to the Hign·Court against the conviction. Thus the appeals against conviction in tbis case must be, and they are ber.py_,, dismissed for beirig incompe'tent. 1'he appeals against sentence,· however, have some merit. - · 'rhe sentence ;assed. was no't only manifestly excessive for first offenders but· it was the maximum penalty in' terms of the' Third Schduie to Act No· 13 of 1994. - Despite . . . ~ . . that a·sentence must bear proper relation to the.-intrinsicgravity of. the offence committed, maximum penalty must be reserved for the very worst of cases .. The appellants were each found with a locally made muzzle gun -('gobore) • They were founc~. doing nothing wi tb . the. guns. The case. did not constitute the worst breach of t~~ relevant· law. I agree with Mrs .• Makuru ti1at interference by this court is nec_essary. · The sentence; ;in _conse,quence. 1 .. is reduced to J.e years imprisonment .. In the event, save for· the reduct-ion of the se.ntence to three years :impriiionment; the appeals st~.nd dismissed in every .other regard. B.P. MOSRI AT MBEYAo 27 November 1998. . -, 01<". T°lnf ORIG i:frX1.