19800723 TZHC Mbeya1

tN TIIE HIGH COURT OP TANZANIA j

APPELLATE JURISDICTION I CRIMINAL APPEAL NO. 33 OF 1980 (ORIGINAL CRIHINAL CASE NO. 24 OF 1980 OP fl DISTRICT COURT OF RUNJE DISTRICT AT uIaJYu) BEFORE: P.S. MPONZI Esq, SENIOR MAGISTRATE (Original Accusea) versus THE REPUBLIC g . g , RESPONDENT (Original Prosecutor) C H A R G E: Loading more Capacity than declared by the manufacturers c/ss 39(2) and (5) of the road Traffic Act No.30 of 1973- JUDGF1JTT M1AKIBETE, J., - The appellant was convicted of overloading - under s. 39 (2) & (5) of the Road Traffic Act, 1973 - and fined shs.2,050/= or 12 months imprisonment in default. The appeal is against sentence only. tO It was alleged that onh 15th day of March, 1980 at about 12.50 hours along Mbeya/Tukyu road at Bagarnoyo area within the District of Rungwe - Mbeya Region - the appellant, being the conductor of flini bus Reg. No.TZ 50251, make Isuzu, d.id'perrnit the carriage of 35 passengers - 10 more pssengers than the said motor vehicle was licensed to carry. Counsel for the appellant and the Republic were agreed that the entence imposed was manifestly excessive. They observed that whereas the fine ought to fall within the means of the accused the trial court made no endevour to' ascertain the appellant's means before imposing the fine. They said, appellant was a conductor - an employee who did not belong to high income group - his salary being well below shs.1,0001= P.M. As such

- they continued - a fine of shs.2,050/= meant to punish the owner of the 1ini bus indirectly, which was a wrong principle of sentencing. I agree with the observations of the learned counsel. The trial - - r - court () ought td have exriined the appellant as to his means before imosiiig ( )L - - hefine It is wrong principle of sentencing to impose a fine which clearly defies the ability of the accused to pay. . V : - - - : • '1'' '.•'' -. ,0 • 0 • - 2 - For that means that either someone else pays for him or he goes to • prison. The offender ought to be the one to feel the impact of the punishment and the term of imprisormient must be imposed in deserving circumstances only. It does not appear this was the case here, because the fine was beyond the means of the appellant and a prison sentence was not deserving in the circumstances of this case - the appellant being a 2nd offender notwithstanding. And while the sentence must reflect a punitive element tiat isnot undul,r harsh, it ought also to seek to divest the offender of his ill-gotten gains. The facts in the instant case do not indicate what cotld be said to be ill-gotten gains. In all the circumstances therefore the sentence was manifestly excessive. Accordingly I would reduce the fine to one of shs.55011 or 4 months imprisonment in default. 0 In Court at Mbeya this 231'd day of July, 1?8. • '. • 0 0 • • M.J M\JAKII3ETE • • • • • • 0 0 JiI%.ZLj 11 - - - -t Now