Joha d/o Milaji vs Republic (HC Criminal Appeal No. 74 of 1999) [1999] TZHC 280 (4 October 1999)

ik THE HIGH COURT OF TANZANIA AT MWANZA · APPELLATE JURISDICTION ;,' IDGH COURT CRIMINAL APPEAL NO. 74 OF 1999 (briginal:Criminal Case No,." 29d of 1998'.· of the . ·; ·Dsti;-it __ Court of Geit~ Distri,.ct at,~eita. Before: L. N. B. Ngovongo 1 Esq. 1 D/M.) JOHA D/O MILAJI •••••••••••••••• • ~--..... • • • • • • • • APPELLANT ( Origi_nal Accused) ; . · Versus· : . ' ,•n. .• ,..., THE REPUBLIC .- • •·• •• .:., •.•••.•• •·• ••••• 0 ••• ; ,1 • .;.;. • 0 0 • RESPONDENT. . . ·:. ·. ., . . ''(Orig-~nal- Prosecutor) }•.'".·'• JUDGMEtlT . . . .·. ~· . ....... , .. , MROS0 2 J .• This is an appeal against the severity of a'senten:ce of ,five years imprisonment,· upon a c_gnvi-ction for unlawful posses@ion ,of a native liquor, commonly knovm as -Moshi, c/s 30 of the Moshi · (Manufacture and Distill;tion,.Act, No.62 of 1966. l The maximum senfence .... fGir the offence as provided by law is five years imprisonment and the question for discussion in this appeal is whether the trial ccurt erred in iniposing the ma.;-;i}n~ sentence in the circumstances of the appellant. . . The appellant had pleaded guilty to· urila:Sfur po'sse~i6n. 6f· hlenty litres of moshi. She was a first offender and was aged 54 years. She was a widow, with nine children under her care. She claimed she was suffering from cancer, although she di not tender any evidence of such illness. She therefore, pleaded for leniency. · The trial court apparently considered- those mitigating eireumstane-e but decided that since the offence was prevalent in the Geita District, the appellant was to get a severe, deterrent sentence. The learned State Attorney, Mr. -Rwabuhanga, who appeared before me, submitted that the sentence was excessive in the circumstances of the appellant and suggested that a probation order would have been the more appropriate sanction ~ 6 inst th0 apellnt.

2 I would agree with the appellant ·as well as with the learned State Attorney that the circumstances relating to the appellant did not call for· imposition of the maximwn sentence. The trial court., therefore, •'erred in its exercise cf discretion regarding the choice of the appropriate sentence. Even so, I think the trial magistrate was entitled to consider the fact that the offence was prevalent and that a custodial sentence was needed as the only meaningful deterrent •. But, in view of the mitigating circumstances as pleaded by the appeppant which were not disputed, a sentence of one year imprisonment would have met the justice of the case. In view of the prevalence of the offence in Geita, a probation order would be unsuitable. I now proceed to quash and set aside the sentence of five years imprisonment anq-- substitute thereof a sentence of one year (12 months) imprisonment. It i.s so ordered. JUOOE .. , 4/10/99. Mr. Feleshi, S.A. - present. . · : ... ~· ... ;r i