Francis Chalabika vs Republic (Criminal Appeal No. 26 of 2000) [2000] TZHC 359 (6 July 2000)

IN T HIGH COURT OF TANZANIA ATA :. CRL'INAL iPPEiJ NO. 26 OF 2000 (Original Criminal Case i. 105 of 1998 of Mbsrali DistriGt CGurt Before' P.A. Lyirao . Resident Magistrate) • FRANCIS ANPELL/.NT Versus THE RCPUBLIC .. .. RES 1 ONDENT • --- - •----- • JUDGtENT :jIj This appeal is against senteo The dist?it e.urt .f MIãrali convicted the appellant, rancis Chalabika, of the Offnce of Throat of injury to a person employed in public service, contrary to seetion 10' of the.-Penal Code, and sentenced him to two years imprisonment0 The a tei.e agg'ieved hirn, and his learned advocate, Mr9 .Mkumbe, prEferred this appeal in VoAuancev whib :eiste 0 d by the Republic. , & 2

• On 3 1 11.98 PC Nassoro (Pii), a traffie ppLiexnan t Rujewa, waA on duty ai.rig Iawa/Ubaruku road. He stopped áOtrehicle rUg. No. MB .2175 make peugot driven by the appllant He asked th aDpellant to rpduce his driving licence

. itBLB, and, its inaurance cover. The appellant failed to do so. He askd the appellant to gc. the police stetion without the motot vhde. The appellant refused saying be would, not leave his vehicle behinc... To de ionstc'te he was serious the appellant held a spanner and threatened to hit Pvfl wi1h it. and knock off some of his teeth in the event he were no to go to the.:plce statiçn with his vehi.le, Al Somehow P11 nanaged to subdue the appellant and pulled mm to tie police station by his trouser. .. ;_• The main grounds of complaint by iYumbe, which were conceded by the learned state attorney, Mr Bonifacc, were twofold firstly, that a sentence of a fine would have sufficed in the cir&istances, and, secondly, that the sentence meted out was manifestly excessive. I would, with respect s agree with both learned counsel. 0000 .... 12

The of femGe shard is e. misdnioanourpunishable under section .5 of th. enal Cde ith imprisonment for a term not exceeding two years o r with a finr with bh. In point of piinciple, where, as here, thq zertign which

• cmat—ex an offnc vpocifically empowers the court to levy a fine ae an a3ternative tc6 prison sentence, the court should not normally impose a prison sentence unless the ,e ircum at aneels of the case warrant it. In this case the circumstans did not warrant a stod.ial sentence. There was nothi--,2 , g agavatIn. The order by WI that the apllant eheld not go ,to the police station with his, mor vehièle was clearly unreaonable, The order was made in complete <isrogar4 to thC fact that the vchi.le cld bde beeü vandalized if left on the road u.nguar'ded. Smething else too. The sentence handed down was the u axim= prescrjled for the offence. That sentence was wholly unjustified in the ruin4ax1ç$. In mint f prin.ple, the maximum penalty must be reserved fr thW Wy w'et of 4-.. - V. -. - -•. This was, not the worst breach of the relevant law. Indd ng one •an tefl if a part icuar Gase before the court contitutes the irors brasb. o f 'elvant law. So it is always safe 'f or i cOurts to assume that tho worst breach of law is ret tQ Qg jur and avoid the imposition of maximum penalty e x 4g pt Way in extreme and exepial eases in this case tho circumstances wem < lev ;~ id 9f: any g rg undq fo - the imposition of the maximum penalty. The appellant has stayed in prison for tkn'ee months. This is mh more than he desrcjd, I a.çordingly allow the appeal, and hereby reduç thg senter4a as would rsuit in his immediate release from prison. B$. M0&II JU]GE.

AT MBYA. - 6 July 2000. For Appellant . Mkwnbe.

• For Ieptthlic: Mr. Mulokozi, S.S.A.