Thobias s/o Sigonda vs Republic (High Court Misc. Criminal Application No. 25 of 1990) [1990] TZHC 261 (28 November 1990)

4 . 1 ~ \ (: ~ _ , ET HIGH COURT OF TZ2NL - AT DIBEYA hIGh COURT MISC,, CRIMINAL AP?LICTIOIT NO. 2 5/199 0 (Origiia1 Criminal Case No. 564 of 1939 of the District Court of n, oya Dis.trjct at hThoya) BEFORE: T A, R. NASSi\RY — II. N, TEIOBIAS S/O SIGONDA .o'o,o' oaoco.0000eoo 'APPLICNT VERSUS rrvrrr' IDTT)T Tr . - DDCThrn7T OOI0000.0000,0000000C•6000 L_DJ4. JUDGMOT IT Mcbone, 3. Thobias Sigoncla was ohar&d , with , Stecilin By Agent contray to section 273 (b) of the Penal Cod.. fib f6uncl. t TLaity and sentonced to throc years imprisonment. He now appeals agaths both conv4cti.oia.anrl sentence.' T10 undisputed facts are that the" ppoll was iri:.June. 1988 . handed over cash 36 9 000/= by the complainant, one Dauson Nyer'oro to buy him two (2) bundles of corruated iron-sheots. Instead he spent the money for his own use andhas never returnec'. it to the complainant given him the iron-shoet.0 Instead the complainant gave' the appellant 500/= moDe for transportation of his timber. The appellant. 'spent the coriplainans money to rescue his 'timber business which ventttho also failed. Tho appellant approobed the complainant and told him what misfortune bad befallen, him and zis1ec1 for 4,000/= more to transport his tiber to Mbeya na sell' it sothat he refunds the, complain n money. Despite the complainant' s' addina': the 4,000/= to th appellant the appellant has not r.ofuned. the coaplainarb his Doncy up. to now. The appellant arguos that since ld had inforuci t.o conpla4nant that lie ,LiadaL,Teed aria had spent his money and the couPlainantion him.. 4,000/= morto .eble him transport the timer and. 'raise the money t.o pa 'the d.oht the matter. -had been turned into a civil deiDt and there was no theft. The learned trial, magistrate rightly dealt with this point 'in his judgomont at page 15 (typCd.) and I otally concur with him,' lie . says, citing___GLLINVILLE UILLLM'S CRII-iL'hLL U, SECOND EDITICHI 1961 GEORGES, C.J. in YtJSUFU S.LBi iKiiLI V,R, (1969) j i l aC,D, 264 and s, 258 of the Penal Code' "ConsiderinG the issue Glanvillo Williams in his book CrimInal Law, Sobond.. Edition .1961 at page. 779 obeorvod" that: 'In tbeso crimo' on 'which the CoflSCnt of the victim excludes rcsponsii1ity the consont'mist be givri •' - before or at the tine of tho act. Subsequent

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-2- condonation or ratification of the act' by the victim does not deprive it of its criminal character. 'Nor (cone - rally) can any lDiflding promisobo,.. made not to prosecute. In fact the author wont on t,o explain that oven the Compromise between the victim' and the accused does not tie the hands of the criminal court., In th.s case tho accused is sayin t that ho compromised with the complainant that he could have refunded him his money any tine ho Got it... The : fact, the accused had intention to refund the complainant his money does iot absolve him from criminal liability, In the case of L.0V. Cock1Dnrnl'968) 466 which was referred to by Georges, C.J. in Yusufu Salim &alyV. R. (1969) H.C.D 0 24 Winn L.J. noted 'If coins half a crown, a lOs. a £5 note, whatever it may be, are token in all the circumstances which I have already indicated with the intention of spending or putting away souo''. where those pnrticular coins or notes, albeit not only hoping, intending,cxpecting,roasonably to be able to replace thou with their equivalent nevertheless larceny' has bean committed because with full appreciation of what is being done 9 the larcenous person, the person who commits the offence has token something which he was not entitled to tce,., 'had no 2lain of right to take uithcut the cdnsent of ' the owner and is in effect trying to force on the owner a substitu-tion which the owner has not consented to, In fact the act of -the accued falls squarely under the definition of theft.uncicr section 258 (2)(.e) of the Penal Code "000.o :° case of money an intent to use it at the will of the. OS0fl who takes it or converts it although he may intend aftorwds to repay the amount to the owrier, The con'Vic . tion ws .therf ore properly oxriirod at as aniuus rcvotond.i is no defence in a case of larceny . of money, T' e appeal aaanst conviction is hereby dismissed, As for the sentence I think under the circumstances of the case it is a bit excessive. Though.s I havo'said. ananirus revetondi is. no, defence a genuine one is a groat mitigating factor in sentence, .. ,/3 V

F In this case the appellant showed a oocl intention to refund the complainant his money though without success for two yos0 I therefore reduce the sontonco imposoa on him from tbxoe to one yer's imprisonmont.. The District Courtt s ordor as to compensation romains' undisturbed. IIi/JJM" JuDGE 28/11/1990