19791129 TZHC Dar es Salaam1

L1tw> IN THE HIGH CURT OP TANZANIA AT DAN ES SALMN APPELLATE JURISDICTION HIGH COURT CRLVIINAL ArPEAL NO. 193 OF 1979 0 ORIGINAL CRThIINAL CASE NO. 110 OF 1979 OP THE DISTRICT COURT OP KUOO DISTRICT AT IWXARA BWORE U. LUNG0I1BF, Esq., SENIOR RESIDENT MAGISTRATE 1. RASHIDI KADEGE ) 21 TAIPA THABIT ................................... APPELLANT Versus THE REPUBLIC.......o................................. RESPOIDENT Charge: Selling priéãoirolled goods above the maximuth price, c/s 20 of theRegulationof price control Act No.19/1973. • ' DGEMENT '. IVINZAVAS, J.K. - In this case the two appellants were, A on their own pleas of guilty, convicted of selling price controlled goods above the maximum price c/s 20 of the Regulation of Prices' Act, 1973. :, . On conviction the first appellant, Rashidi Ally Kadage, was sentenced to 12 months imprisonment and the second appellant,' Taifa Thabiti, was sentenced to 9 months imprisonment. They are appealing against the sentences imposed. When the appeals came up forhearing on 21.11.79 I allowed the appeal by the second appellant, Taifa Thabiti, quashed the conviction, set aside the sentence and ordered his immediate release from custody. I reserved my reasons for such order; and these are the reasons: As amply demonstrated from the record the second appellant is a cousin of the first appellant. In the charge sheet he is shown to be 16 years of age. The learned trial magistrate found it as a fact that the second accused is about sixteen years "He said when sentencing the second accused: Is 2 "I am mindful in this present case that accussed No.2 is very young, about 16 years, but since he has participated in committing this serious offence he deserves no mercy at all," The facts that led to the arrest and arraignment of the appellants are, in short, as follows:- Acting on information received one, Probationary Sub-inspector Emson, decided to investigate an allegation that the appellants were selling laundry soap - (popularly lmown as Ibuni), above the maximum price allowed under the law. He proceeded to first appellant's shop accompanied by other Police Officers and, on reaching there, he met the second appellant at the counter. He asked for two bars of Mbuni soap and there upon the second appellant sold him the soap at shs.10/= a bar. Apparently the first appellant, the oer of the shop, was present in the shop, during the trans- action. The appellants were immediately arrested and jointly charged with the offence of overcharging c/s 20 of Act No. 19 of 1973. As I have already mentioned above the aácused pleaded guilty to the charge and they have no quarrel regarding the conviction. Arguing against the sentences imposelMr. E1-Maamry learned counsel for the appellants attacked the lower court's assessment of sentence saying that in imposing the peremptory sentences of imprisonment it failed to take into account the fact that the appellants were first offenders. It was submitted that the fact that the accused were first offenders entitled them to leniency. It was also argued that the trial magi- strate should also have taken into account that the accused readily pleaded guilty to the offence - This fact, it was argued, entitled the appellant some leniency. Finally the learned defence counsel submitted that in imposing the sentences he did the trial magistrate acted immotionaily and met according to reason. In rebuttal the learned state attorney supported the sentences imposed. It was argued that in sending the appellants to prison the learned trialmagistrate followed a praatic approach in view of the present economic situation in the country. The Republic conceded that first offenders are usually accorded leniency but argued that in the present case accused's acts caused a lot of suffering to the villagers. It was S the Republic view that offences of selling goods above the maximum price under the law should be punished severely so as to act as a deterrent to would be offenders 4 . 0 • /3 :3: Pinally the learned state attorney argued that although the sentences imposed were severe for first offenders, they were not, it was submitted, so manifestly excessive as to call for reduction by this court, The Republic's view was that the sentences acted as a shock treatment to the accused and that they would have the effect of deterxing other would be offenders under section 20 of the Regulation of Prices Act - Act No. 19 of 1973. This Court has time and again pronounced that in deciding as to what sentence would be the most appropriate in any given case the court has to take into account not only the aggravating circumstances of the case but also factors, if any, militating against severe sentence. Speaking loudly against the accused persons is the.: fact that because of their greed they are exploiting the economic situation by enriching themselves to the detriment of the general public. Such acts, I agree, with the learned trial magistrate, should vigorously be condemned by the courts by imposing condign and even deterrent sentences. As for the factors that oried for leniency the accused persons were but for this offence, first offenders and they readily pleaded guilty to the offence charged. Generally speaking a first offender is entitled to leniency unless there are special reasons to the contrary - See the decision of this Court in ADIJA MXLIPHA VR (968) HOD 192. As the accused pleaded guilty to the offence on their first appearance in court, this fact alone entitled them to leniency see the decision in Rv ANGASISYE s/o MW!D(UGA (1968) H.C.D. 325. The reason is I think obvious, and is that one of the main objects of punishment is reformation of the offender, As Biron, J. once remarked in FRANCIS CHILH4BA VR(1968) H.C.D. 510 -. "Contrition is the first step towards reformation and a confession of a crime, as opposed to brazening it out is an indication of contrition." See also the decision by Georges C.J. (as be then was) in Rv MWANAIBA d/o RAMDHANI (1968) H.C.D. 511. .. • • :4: In the present case I am of the view that the circumstances of the case called for leniency. A heavy fine to each of the accused would have been more appropriate than sentences of imprisonment. There was doubt as to second age. The learned trial magistrate found him to be about sixteen years of age. There was no medical evidence as to his actual age. He could have been under sixteen. And if, for the sake of argument, he was under sixteen, sending him to prison was contrary to the clear provisions of section 22 (2) of the children and Young Persons Ordinance - Cap 13 of the laws which says inter 11:. l?No Young person shall be sentenced to imprisonment unless the count considers that none of the other methods in which the case may be legally dealt with. is suitable." Under section 2 of the children and Young Persons Ordinance a "Young person" is any person who is twelve years of age or upwards and under the age of sixteen." In this case there was, as I have I hope amply demonstrated above, doubt as to what was the actual age of the second accused. This court has, times without number held that when there is doubt as to accused's age the doubt has to be resolved in accused's favour - See the decisions in 1W CHIBAGO sb JTJMBE (1969) HCD 389 and 1W ATHUMAN HATIBU (1968) H.C.D. 396, to mention but a few of the decisions on this point. As there was doubt as to seQond accused's age, the law required the learned District Magistrate to resolve the doubt in his favour and find him to be a "Young person", Had the trial magistrate properly directed himself he would not have imposed prison sentence on the second accused. These are the reasons which prompted this court to order that the second appellant be released from custody unless he was otherwise lawfully held. As for the first appellant he has already been in jail for about 3 months. As I have already mentioned above the mitigating circumstances militated against prison sentence. I agree with the learned defence counsel that in sending the first appellant to prison the lower court also erred, the sensitivity of the offence not withstanding. It is myvi'r that a heavy fine would have adequately met the justice of the case. . . . [4 5: By now the first appellant must have already realized his folly and I therefore reduce the sentence of 12 months imprisonment imposed by the lower court to such sentence as would result in the immediate release of the first appellant from custody unless he is otherwise lawfully held in connection with another matter. ' D!J ES SALALM N. S. 29.11.1979 JAJI KIONGOI 9 r