Athunani Makulunge vs Republic (Criminal Appeal No. 104 of 1999) [2000] TZHC 475 (9 October 2000)

IN THE HIGH COURT OF TANZANIA AT ;rANGA &...-=r CRIMINAL APPEAL NO. 104 OF 1999 (Originating from Tanga District Court) ATHUN.l\NI HAKULUNGE " '> C O O O C • O O. 0 0 lo O O O O APPLICANT VERSUS: Tl{E RfDPUBLIC • o o o ., "o • ., •• • o., ••• •• o o ••• RBSPONDENT JU D G ME, NT : ....:11..•CZL~..:a~....,::::a,,.~~----- The appellant in this case, namely ATHUltJ\NI MAKUll.JNGJt~, is appealing against the decision of the District Court of Ta.11.ga in Traffic Criminal Case No. 80 of 1999. The salient facts of this application can be briefly stated as followse On November, 11,1999 the appellant wD..S by bis own plea of guilty convicted of permitting a defective motor-vehicle to be driven en the public road contrary to Section 39(6)(a) of tbe RoD.d Traffic Act, 13 and was sentenced to a custod.ial sentence of twelve(12) months. The appellant is now appe&J.ing aga.in.st tbe sentence imposed upon bim. The appellant lias in bis six-ground-memora.nclum of appeal impugned the sentencing Court 1 s decision. If I may put it in a narrow compass tbe appella.,ts is saying that the learned sentencine magistrate had proceeded on a fundamental mis-apprehension of facts and /or law, resulting into a mis-carriage of justice. Tbe case for the Responc1ent/Republic was advocated. upon by Mr. Rutagwelera, Principal State ittorney who declined to support the decision of the sentencing court. . . ... /2

j 2 It is trite law, where tbe legislature b::!S imposed punishment by fine vvitb imprisonment, fine is normaly appropriate. The rationale being th::,t fine bas been envisaged by tho legislature as the principal J!l'lO.de of punishment (See: B.,~~~ '-~~1.J1[1§HC2, ( 1969) l:!,&~]2,!.a,E.~~-l.J.1¥"'!J)~J.l .. J:'.!!.¥?.fu'1JVffi.:l V.R. (1969) H.C.D. no. 305 and ViASUDI EAB/31-U'H V .. Ro ( 1970) H.C.D. 161 r:-.:.·4~-,. .... :.::.,...,,•--.,;.:.,,:::.1;<;-..,:--.,.... ___ to mention just a few decisions of this court)• It has been demonstrated in the forementioned cases that in cases of this kind a custodial sentence necessity of imposing a sentence of imprisonment viitllout the option of a fineD In the :present case tile learned sentencing magistrate has in his sentence, characteristic ,of •its 1.mtw.ual length, stated ,i1!,!e:;:::~ tbat the offence committed is rampant and that a deterrent sentence was called for. I hasten to say ths.t in sentencing the E.',ppell2..u1t 1 the sentencing magistrate had, \vitb due respect to him, proceeded on a fact tl.lat he did not, and infact, could not, substantiate or evidence/ otherwise. CAT - ). by statistics, given imperical It is on the basis of the foregoing tl:at,, I am principally persuaded., as was Mro Rutagwelera, tbe le2-rned Principal State Atto:cney, that the apper:J. should be allowed and I so do allow it a

( In view of the fact that the appellant had served a custodial sentence for a period of twenty six days, I regard tbe sentence as enough. I therefore substitute thereof a sentence tlla.t renders bim a fn,e man as he ))ad since December; 8 1999, been out on bail pending appealo It is so ordered.. on this 9th day of October, 2000 in the presence present in per.son 2 .. nd Mr. Ki tainda, State tittorney o 9/10/2000