19850124 TZHC Dar es Salaam

IN 'I'IIJJ EIGH COtntT CRIMDTAL APP_:J.LL lTC, 21 OJ? 1984 ., ·;\ir···;-r,·,- •·r,·r ( o.a.IGINA.iJ CRI,-ilh.t .. D r-(/•"i'',j 'vi-,,.:,_,::, T·T .:-0. • .••• 0 83 1L~24 O..cTl 19 ••••••• KISUTU OF THE DISTRICT COurtT O.::' ••• "~~t-:i_J; ••• DISTRICT AT •••••••• VS· Oshen Kiraro was convicted of br~i:r.-J.,::;:; in unlawful possession of bhang contrary to se:ctj_on 2 (b) of the Cultivation of Noxious I'lan-t:J (Erohj_bitiou) OJ~,.:,inance Cap. 134 of the LawG. he ;,,-3_,;3 se;:1t anc;ed. to seven months imprisonment. This -'":1.]J_p,:! J.1 is &ga,::11ic:~t the f,entence. 0 The amount of bhm1g :f:ound. i:.'1. the 2,1):pf;llant 's possession was examined by tJH3 Government Chemist and it weighed one gram only. The c:,,ppel~_an-t is a young man aged twenty four years and he is a studantc He was a first offender. 'rho o:tienco of vrhich t:.10 apr::ll.a:n:t was convi0.ted is punishable with fin~. or im:prisonmont .. In ]iakari §/p.Jiamisi · V& 1969 HOD 11. 311 the appellant was convicted of dangerous uriving and .s;,;ntonced- to_ eighteen months imprisonment_. _On appc:z:l to thi_;::; court, Georgesg C.J. (as :he then was) - said that whore t~~e 1E,.,-;r _:c:n.d::n~ ·which a person is convicted lays dmm , -i:loth a t::;:2i:-1. . cf imprisonment and a fine as a method of punishmcmt t}1'.:-.-c would :i11di.cate that this was the type of off enc:) j_n ;irl':: icJ·: ;:-1. fine 1,rnuld normally be appropriate. In th1::1,t Gace tho sontonc6 of imprisonment was altered to a fine-11 ..... /2 I ', ' 1 2 Similarly, in tJ:10 1971 HCD n·. 144; th.u court reduced the sentenc) .of imprisonment for ·unlawful possession of Moshi to immediate • release of the appellant, for the same reasons as in the Bak§:.B ca.se. With respect I agree that where the legislature envisaged that a fino should be the principal mode of punishment, imprisonment should not normally be •awarded, unless, of course, there are aggravating circumstances. There were none i..,v1 the present case. There is a further point. The appellant was a young first o•ffender. As Georges C .J. said in H0tts!P... V& 1969 HCD n. 234. "It is generally agreed that first offenders should not, as a rule, be sent to prison where there is . .'_,,. ' '•. apportunity to mix with, and learn bad habits from, more se.asoned1 criminals 11 • TJ:-18.t was also -che view· of :i:3iron, J. • in Qmari _Sa.J.d ·\G.. g 1969_ ECD n. 42. In the p~~esent case, the appellant being a young, first off ender .,ir;d a. student, should not have been sentenced ' ·, . . to imprisonmant. ' ~ ' The learned State Attorney declinGd• to support the sontE-;;nce. With re~rect, I agree i·J'i th both counsel, :~~at. the sentence was inappropriate. This a.P.l)eal is allowed. 'rhe appell&nt f..k\S a.lr,:,;ady served two months imprisonment. That is .:.::nough punishment for him. ·', . l •, The sentence of the trial·court is reduced to such a term of imprisonment as "Will result· in: thG 3,ppella,.'1..i; 1 B ~irm11ediate I release. I· I ' If . . I I I ) .i. . ( ,. ! .. ! : , ~ ! :· ·. . W~-J ~ Ma,iria 1 JmJn· r.:,-;::, ~-...:!~ DAR ES SALAAM 24th January, 1985 Mr. Mwingira for the appellant Mr. 8alti.la for the He·publj.<:.