19850124 TZHC Dar es Salaam3

EIG-H COURT CRDENAL APJ:··1~L.L }TC c.r 1 o::_,~,, • •N _ 1984 • - • .• -;- ~r·. --- ,

KISUTU · OF THE DISTRICT COURT Or:' ••• , ::1~u_-.i-~ ••• DISTRICT AT • • f • I •• vs- Oshen Kiraro was convicted of' b,::;in,:".; in unlawful possession of bhc.mg contrary to cc~ctj_on 2 (b) of the Cul ti vat ion of Noxious I'lant:J (Prohibition) OJ'.',.:, inance Cap. 134 of the LawGo He W,?a:3 ;:3e;:1te:need. to seven months imprisonment. Thia a..JJJJ<:!,s.1 is f,;,ga:::..:i.1et the sentence. The amount of bha;:1g found in the e,ppellant' s possession was examined by t}w Government Chemist and it weighed one gram only. The ,c,ppel~_ant is 2c young man aged twenty four years and he is a stu.da:n:c r Ile ,ms a first Ji)::., offender. •rho of'ienco of vrhich t~J.v ap::=,c:11ant was convi0ted is punishablo with fin~ or imprisonmcmt~ In J3akar_i sL ~Hamisi · V.R_ 1969 HOD n. 311 the appellant was convicted of dangerous driving and .s:Jntuncod to_ eighteen months imprisonmeJ:1t .•..On appe:al to th;_;:;; court 1 Georges, C.J. (as :ho .then wa.s) · said that whore t~~e l,,nr .1.L1.1dGr 'which a person is convicted lays dovm ·0oth a t:J:..."n cf irnprisonment and a tine as a method of punishmcm,v thc;i:; would b:1dicate that this we.s the type of off enc ::o i..11 wb icJ-; .:'-1_ f.ino ,rnulc1 normally be appropriate. In that case the sontonc6 c-£ imprisonment was altered to a finee ... ~ ./2 2 Similarly, in tl10 -V. - R. 1971 HOD n-. 144; th1~ court reduced the sent enc) -of •

• imprisonment for unlawful possession of r1oshi to immediate release of the appellant, for the same reasons as in the ~~ri ca.se. With respect I agree that where the legislature envisaged that a fine should be the principal mode of punishment, imprisonment should not normally be •awarded, unless, of course, there are aggravating circumstances. There were none in the present case. There is a further _point. The appellant was a young • As Georges C.J. said in Hattan V Ji 1969 first offender. -·---- HOD n. 234. "It is generally agreed tbat first offenders should not, as a rule, be sent to prison where there is . . • .t. --~ ' apportunity to mix with, a1~d lGarn bad habits from, more • se.asonedl criminals 11 • Tr.tat was also_ the view of :airon, J. in Omari .E.§J-d,_V...t. g 1969 ECD n •.

42. In the p1~esent case, the appellant being a young, first offend2r .and a. student, ,', . should not have been' sentenced ., . to . imprisonmant. .. . The lea:rned State Attorney declined, to support the sentence. With re~rect, I agree i-rith both counsel that thG sentence was 1.'·_ inappropriate. This appeal is allowed. The ap11ells.nt J.k\S e.. lr.:.:ady served two months imprisonment. Tbat is ,.mough punishment for him. The sentence of the trial·~ourt is ·reduced to such a term of .. imprisonment as ·will result in thG i3,ppelian.t '.s .;iimnediate release. PAR !_S SALAAM 24th January, 1985 Mr. J\1wingira for the appellant Mr. 8alv.:la for the Re-pu.bltr..