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Deushanker v. R. Crim. Case 7-D-70; 25/5/70; El-Kindy, Ag. J.



Deushanker v. R. Crim. Case 7-D-70; 25/5/70; El-Kindy, Ag. J.

The accuse was convicted on his own plea of guilty for theft of Shs. 16,690/10 c/s 265 Penal Code. This money was collected by the accused in his capacity as Court Broker for Singida Region in respect of various civil cases. He was committed to High Court for sentencing as the District Magistrate was of the view that he did not have sufficient power to impose adequate sentence. In High Court it was argued that the offence be treated as a simple theft and the Court should not apply the Minimum Sentences Act.

            Held: (1) “Admittedly the section of the law referred to in the lower court is theft under section 265 of the Penal Code, but the particulars, in my view, clearly show that the intended charge was theft by public servant c/ss 270 and 265 of the Penal Code …. I consider that in fact the accused was charged for theft by public servant, but the section of the law omitted to state that it was also contrary to section 270 of the Penal Code. Therefore, I exercise my powers of revision, and amend the reference to section of the law so as to include section 270 of the Penal Code….. I would …. Respectfully disagree with the defence counsel and hold that as this was in fact a charge of theft by public servant, the offence fell under the Minimum Sentence Act”. (2) (On the issues of the deterrent and exemplary sentence) “Accused is a business man, and I am told that he used part of this money to pay for instalments of his land rover, and part of it to pay for the wedding expenses of his daughter. I do not have any sympathy for anybody who makes use of trust money in this manner. As a liabilities business man, he should have raised money in other ways to meet his liabilities towards payments for his land rover and wedding expenses for his daughter … in my view, if he had valued his position in society, he would have been careful and would certainly have done everything to avoid the breach of trust which he had committed…. It cannot be denied that if Court Brokers take liberty. With monies collected in the course of their employment, public confidence in respect of safety of their property in custody of Court Brokers would be undermined. Taking all these factors into consideration, I agree that a deterrent sentence is called for even though the accused in this case is more first offenders. In the circumstances, I sentence the accused to a term of three years in prison. As he is 56 years, he is exempted from the application of corporal punishment.”

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