Sigwavuba Gwamko vs Republic (HC Criminal Appeal No. 147 of 1930) [1982] TZHC 255 (1 December 1982)

IN 'I H 7 HIGH COTIIfl? OF TAiTZfNIA m r I APPFILATH JTHIISDIcTION (labora Registry) (i-ic) CRIHINAL PFEAL NO0 147 OF 1930 ORIGINAL CRIIAIITAL CASH NO. 72/80 1 - •. OF I HE DISTRICT C0TT OF Hi13OHDO DISTRICT AT TI]3ONDO q. BEFORE: N .K. MABOTTDO Esa 9 DISf RIOT J4AGISTRATE SUGWAVTJBA Gi'ANKOO . • • • •• • 0 • OAPPELLANT (Oriinil 'ccused) * THE REPmLic. , . . .RESPONDENT Original Prosecutor) CHARGE:— Hunting in Game controlled area c/s 10(1)(2)(b) of the Wildlife Conservation Act No. 12/74 UP SPENT RTJBAMA, J. SiGWAVUBA s/o SWANGO ws charged with aid convict edon his own • plea of guilty, to huntin in a Game contd1iëd area cIs 10(1)(2)(b) of the Wid1ife Conservation Act. Np.'12/7. He was then sentenced to ' three years imprisonment. .•. i On appeal, Mr. Mussa, the learned State Attorney s'thrnitted that the sentence was illeraal. The offence should have attracted a fine of not exceeding Tehe. 3,0O0/=.cr a. term of imprisonment not exceeding two yers6 Reading the relevant provisions of the law, that indeed is the position. I thus uash this illegal sentence and set it aside. The appellant was a first offender and relatively young. He sho- uld in the circumstances. have been given the option of aiyin a fine 1 This was not done and no reason fo:L t he stea taken by the trial court is provided. Granted that tie offence is serious but the law makers were aware of this fact when they passed the isv givina this option of payment of fine. Prison sentences are not always the best for the first offenders; it certair]y was not for the appeilnat in this cose who had also readily Dleaded guilty to tue offence a fact that should have weighed in favour of tie nprvellarit, In the circumstances of this case, I sentence the appellant inthe place of tae illegal sentence '4 . I have set aside, to ag a fine of Tsh. l,000,/= or suffer six months •y7

2 - imprisonent in defou1t As tre orpellont his sireody served more than the slternative term of in?risonmeat by now, it means that the sentence wuld res't to his imnediote release from prisons. Lstiy, the trial aistrtc had made an order for the forfeiture of the weapons of apreilon1; to the covernment without having given an opportunity to the appellont to show oaoe thy tho same shodd nabbe forfeited. This . was icreiilm The apDalignt shoa].d have been given the oiportan1ty to s 1or caLico rray his wolpons igi, two axes and a short gun No. 53291 should not be forfeited. I, in the circumstances, set aside this order and its place DIRECT the District Court, Kihondo to hear the apelant in this respect and to dispose the matter in accord- ance with the law. TEA , J. ri/12/1932 Coram RUBA1OA, J r. Mussa, tito 1ittorney for the Republic. Appellant Judgant delivered. r:cfrt Rui.Ai!fA, J 1/l2/l982 Ij