Francis Chalabika vs Republic (Criminal Appeal No 26 of 2000) [2000] TZHC 263 (6 July 2000)

fttc\ Cc2 IN TdE HIGi COURT OF TANZANIA AT IA OPININAL APPEAL N0 26 OF 2000 (Original Criminal Cae No0 105 of 1998 of . MbáraliDistrict Court Before: i:A0 Lyimo RésidnMgistte)

• .LFRANCISCHILABIKI1 APPELLANT Versus. . THEREPUBLIC RESNDENT JUDGMENT A. .. This apjeal is against sentence. The district court of Mbarali convicted the appellant Francis Chalabika, of the. Offence of Threat of injury to a person employed in public service, contrary to se#tioh 101 of the Penal Code, and sentenced him t.. two years Imprisonment0 The sentence aggrie\ed him., and his learned adv6cate, Mro.Itkumb.e, preferred this appeal in cxseuen, which is notreaisted by the Republic0 - -• 0nf301 1'98 PCNassoro (P 1 0), a traffic policeman E.t Rujewa, was on duty al.ng Igawa/Jbaikuroad0 He stopped a mothr vehicle reg0 No0 ME 2175 make peugot driven by the 4 appl1nt0 He asked the appellant to produce his driving licence, its TLB, and'its insurance cover0 The appellant failed tc do no. He asked the appellant to go the police station without the motot vehicle0 The appellant refused saying he would not leave his vehicle bhiñd0 To denonstrate he was seriOus the appellant held a spanner and threatened. to hit PWI with it and 1nock off som of his teeth in the event he were not tb go to the police station with his vehie'0 Somehow PW1 managed to subdue the appellant and pulled him to the police station by his trouser0. The main grounds of complaint by I1r. Mkumbe, which weze conceded by the learned state attorney, Mr0 Boniface, were twofold: firstly, that a sentence of a fine would have sufficed in the cirmstanes, and, secQndly % that the sentence meted out was manifestly excessive0 I would, with respect, agree with both learned counsel0 00014004.00 12

2 - The of fenee charged is a. misciomeanour puni wble under section 35 of thh.ena]. Ce with irnprisoxment fra term not exceeding two yesre or with a fine or with beth. Inpoint of principle, where, as here, the sgrtion which creates an offence specificaUy empowers the court to levy a fine as an aJternative to prison aentenoe, the court should not normally impose a prison sentence unless the circums.ances of the case warrant it. In this case the circumstances did not warrant a custodial sentence. There was nothing aggravating. The order by P1 that the apllait should not go to the police station with his mtor vehicle was clearly unreasonable. The order was made in complete disregard to the fact that the vehisle Could tiave been vsndalized if left on the road uxguarded, mething else too. The sent enee handed down was the nsxinmm. pesca-ibed tg.' the oftence. That sentence was. wholly imjistified in the unne In mint of prniple,, the naximum pcnaltmut be reserved for the. uQry w.jt, of cae. This was not the worst breach of tim-relevant law, Indeed ris azc , ean tell if a part isular case bofore the court constitutes the worst breash of thu. relevant law. So it is always safe for courtito assume that the worst breach of the law is yet t .ur and avoid the imposition of maximum penalty except W31y in extreme and exeptinhl eases. In this case the circumstances were devoid q6f any eampellir grounds for the imposition of the maximum penalty.. The appellant has stayed in prison for three months. This is mh more than he deserved. I accordingly allow the, appeal, and hereby reduce the senten.e as would result in his iinmediaterelease from prison. 47 ) - ( 5

B.?. 0SHI -! d AT NBEYA.

6 July 2000.

• For Appellant Mr. Mkumbe.
• For RCpühlic: Mr. Mulokozi, S.S.A. I