19810831 TZHC Mtwara

• : ' 44- 'IN.THE-HIGH . COURT OF TkNZXNI 1 AT MTARA APPELLATE JURISDICTTON HIGH COURT CRIMINAL APPEAL NO 61 OF 1980 Original CrirninalCase N61 of 1980 of the District Court of Songea District • At Songea 0 Before L. C. Mielwa, Esq,, Resident Magistrate t0. THE DIRECTOR OF - PROSECUTOR PUBLIC PROSECUTION versus Accd. BONIFCE FRANCIS - RESPONDENT J U D G E M E N T CHARGE: lstcourzt: Causing death by dangerous driving contrary. to section 40(1)(.27(1)(a)4 :3(2)(a) of the road Traffic Act. 63O/1973s 2nd count: Permitting persons to be carried on a loaded motor vehicle c/s 58 (2) (4) and 63 (1) of the ro8d Traffic Act. No.30/1973. MUShi J.- This is an appeal by the•••Director of public Prosecutions against the sentence imposed on.the reppondent on the first count. The respondent, Bonif ace Francis, was charged with two counts of Traffic offences contrary to provisions of Act. No. 30 of 1973 On 0 the first count, he was charged with causing death by. dangerous driving c/s 40(1) and 63(2)(a) of the Act. It was alleged in the charge sheet that the respondent drove recklessly and caused the deaths offour people and injured 24 more. The respondent pleaded guilty to the charge and was properly convicted. On this count, the respondent was sentenced to a fine of shs.700/= or six months imprisonment in default. The respondent was disqualified from obtaining a licence for twelve months and his present licence was suspended for similar period. From the sentence the Director of Public Prosecutions has appealed arguing that the learned magistrate erred in law by not, in the absence of any special reasons, impo8sing the minimum sentence provided by the law. This arguement is well founded. I For an offence under section 40(1) of At No. 30 of 1973, where death has occured the sentence providedundersection 63(2)(a) is imprisonment for not less than two years. Unless of course the court found special reasons which in this case'.there were none. Similarly under section 27(l)(a) the minimum period of cancellation of the driving licence and disqualification is three years for an offence under section 40 as was the case. The respondent advanced no reasons as to why the illegality should not be correctee. This appeal must succeed with the result that in .addiion to the fine of shs.700/= .irnposed by the trial court, the respondent Is sentenced to threeyears imprisonment. Futher the period of cancellation of the licence and disqualification from obtaining a licence is enhanced to that of five years. These were the reasons for allowing this appeal. 11. N. Mushi Judge 31/8/1981 &