R. v. Mavunge Crim. Rev. 214-D-71; 3/3/72; Biron, J.

 

R. v. Mavunge Crim. Rev. 214-D-71; 3/3/72; Biron, J.

The accused who was employed as a Branch Assistant Secretary of the TANU Youth League at Mikumi, was convicted of stealing Shs. 82/70 the property of the Youth League and he was sentenced to imprisonment for twelve months. The accused was a first offender. On revision of his sentence the accused in his memorandum submitted to the High Court stated that he had an aged mother, a wife and child 6 months’ old to look after.

            Held: (1) “According to the Act before a court can exercise its discretion and impose a sentence less than the prescribed minimum on a conviction for a scheduled offence, there must be three factors present. They are:- (1) that the accused is a first offender; (2) that the value of the property involved does not exceed Shs. 100/=; and (3) that there are special circumstances. There is a conflict of view amongst the judges of this court as to whether the low value of the property involved can in itself constitute special circumstances, one school of thought holding that where the value of the property involved is so low and minimal that in itself can constitute special circumstances, thus providing the third factor in addition to constituting the second factor that the amount involved does not exceed one hundred shillings; whilst the other school of thought is of the view that the value of the amount involved cannot serve in such dual capacity, but the special circumstances must be made up of factors other than the value of the amount involved. The magistrate would appear to have followed the former view in sentencing the accused. However, I very much doubt whether more than eighty per cent of the prescribed minimum value can be regarded as so minimal even according to the former judicial view as to constitute in itself special circumstances, as would be the case, to take an extreme example, if the value of the property involved was no more than a shilling or two.” (2) “The accused

Has certainly put up a very good case for not enhancing the sentence, though it is arguable whether the case put up by him constitutes special circumstances within the meaning of the Act. In all the circumstances, without committing myself to either school of thought referred to above, I am not persuaded that this court would be justified in enhancing the sentence awarded by the convicting court, it accordingly stands as imposed.”