WILLIAM KIBONA v. R (1968) HCD 320

WILLIAM KIBONA v. R (1968) HCD 320

     Enhancement of sentence – Accused must be given notice. 

Held: A District Court, exercising revisional jurisdiction under section 18 of the Magistrates Courts Act, if it wishes to enhance a sentence, must, under the proviso to section 17 (b) of the Act, give specific notice of enhancement of sentence. It is not enough to inquire whether accused wishes to appeal. Case remitted to the District Court for service of notice of enhancement of sentence and disposition according to law. 

R. v. JONATHANI S/O CHAMADE (1968) HCD 237

R. v. JONATHANI S/O CHAMADE (1968) HCD 237

Reduction of sentence – Proper only where sentence so excessive as to be unsuitable. 

 Crim. Conf. 65-M-68, 22/4/68, Seaton J.

Accused was convicted of possessing “moshi”, a prohibited liquor, and sentence to two years imprisonment. [Local Liquor, Ordinance, Cap. 77, sec. 36 (1), (2); G.N. 229/41] Maximum penalty for this offence is a fine of Shs. 4,000/- or two years imprisonment, or both. The district magistrate, in imposing sentence, remarked; “Severe sentences have always been recommended for this prevalent murderous stuff.” Accused was a first offender, with several dependants. The case came to the High Court for confirmation of sentence.

            Held: 

(1) “The fact that the Legislature has expressly provided for the imposition of a fine at the discretion of the trial court is an indication that the offence may not always be so heinous as to require imprisonment. It should also be observed that if the maximum term of imprisonment is imposed on every offender, the trial court is left with little sanction  to deter second or chronic offenders.” 

(2) “Having said all of the above, however, it is borne in mind that this court will not interfere in a matter in a matter of sentence unless it is so excessive as to be unsustainable. The sentence imposed in this case, although severe, cannot be said to fall into such a category as would clearly require revision by this Court. The sentence is accordingly confirmed.

MOSHUA S/O MDUNA v. R (1968) HCD 227

MOSHUA S/O MDUNA v. R (1968) HCD 227

Held: 

(1) ....(N/A)

(2) “Before imposing fine a court should make enquiries of the financial standing of the accused, and this should form part of the record.” [Quoting R. v. Bison s/o Mwango, 2 T. L. R. (R) . 31,32]. This should be done to ensure that the fine is one “which is within the means of the accused person to pay.”

 (3) A man convicted of striking a woman should pay compensation even though there is no permanent injury, since striking a woman “is not a manly act.” 

Fine reduced to Shs. 200/-

R. v. VENDELIN S/O JOHN COSTA (1968) HCD 190

R. v. VENDELIN S/O JOHN COSTA (1968) HCD 190

Held: 

(1) Section 6(1) of the Minimum Sentences Act, applicable here, requires an order for compensation where the accused has obtained property as a result of a scheduled offence. The word “obtained”, however, means more than that the accused has “had possession” of goods; it means that he must have made some gain on the transaction, since the purpose of the provision is to “ensure that the offender does not receive any benefit from the offence but is made some gain on the transaction, since the purpose of the provision is to “ensure that the offender does not receive any benefit from the offence but is made to disgorge ……” all gains. Here, accused made no such gain. [Citing Sajile Salemulu v. R. (1964) E. A. 341]. 

(2) Compensation may also be ordered under section 176 of the Criminal Procedure Code, upon the showing that some person has suffered some material loss or personal injury because of the offence. The Code specifies that the liability be determined as in a civil case. Such order is not justified here, as it would not be in a civil case, “without more precise proof of damages.” 

(3) Under the compensation provision of the Minimum Sentences Act, compensation is recoverable as a civil debt and “an order for distress in default of payment … is bad in law.” [Citing Mwakapesile v. R., (1965) E.A. 407]. Compensation reduced to Shs. 88/50.

R. v. YASINI S/O RAMADHANI (1968) HCD 372

R. v. YASINI S/O RAMADHANI (1968) HCD 372

Crim. Rev. 22-D-68, 10/7/68, Biron J.

Accused was convicted in each of two separate cases of housebreaking and stealing. Both cases were heard by the same magistrate on the same day, and judgment and sentence in the cases were also given on the same day. In one case accused was sentenced to imprisonment of 16 months and in the other case to imprisonment of 14 months.

            Held:

(1) In the absence of any direction to the contrary, the sentence in the second case would run consecutively to that in the first case for a total of 30 months.

 (2) As the Minimum Sentences Act applies to the offence of housebreaking, and as special circumstances cannot be considered in the facts of this case, the minimum permissible sentences in each case was two years imprisonment. 

(3) The Court stated, obiter, “(I) t is not understood why the offences were dealt with in two separate files.” Sentence enhanced, due to accused ’s long record of previous convictions, to three years imprisonment in each of the two cases, the sentences in the two cases to run concurrently.

JAYANTILAL LAVJI KARA SHAH v. R (1968) HCD 328

JAYANTILAL LAVJI KARA SHAH v. R (1968) HCD 328

Held: (1) All of the counts refer to a single transaction, and consecutive terms of imprisonment should not have been imposed. “In such cases, the best method of sentencing is to arrive at an appropriate punishment for the entire transaction and award concurrent terms to meet each separate count, taking into consideration the maximum punishment fixed for each by law.” 

(2) The jurisdiction of the Senior Resident Magistrate is limited to passing a sentence of imprisonment for a term not exceeding three years for any single offence. Sitting on appeal, the High court cannot pass a sentence higher than that which the trial magistrate could have passed. Although the term of four years’ imprisonment is not in itself excessive, the imposition of concurrent terms of imprisonment will result in a total term of imprisonment of three years. Sentences ordered to run concurrently.