Court name
High Court of Tanzania

Tabu Fikwa vs Republic () [1988] TZHC 10 (01 June 1988);

Law report citations
1988 TLR 48 (TZHC)
Media neutral citation
[1988] TZHC 10
Coram
Samatta, J.

Samatta, J.: On March 10, 1988, the appellant, Tabu Fikwa who, according to the charge-sheet, is aged 33 and was employed as a nurse at the Government Hospital, Dodoma (according to Mr. Rweyongeza, her counsel, however, her title at the hospital  E was that of assistant nurse), was, together with five others, brought before the District Court of Dodoma District and charged with unlawful possession of illicit liquor commonly known as moshi, contrary to section 30 of the Moshi (Manufacture and Distillation) Act, 1966. The particulars of offence alleged that the appellant and her co-accused:  F
   ... jointly and together on 7th day of March, 1988, at about 20.30 hrs at Bahi Road within the Municipality, District and Region of Dodoma, were found in possession of 11/2 litres of native G liquor commonly known as moshi.
The appellant's plea to that charge was:
   It is true. I was found with native liquor known as Gongo without permit. H
All the appellant's co-accused protested their innocence. Their trial is yet to be completed. The learned District Magistrate entered the appellant's plea as a plea of guilty to the charge laid at her door.   I

  A The prosecutor, in accordance with the time-honoured practice, then outlined the facts of the case. He said:
   On the 7th March, 1988, at about 8.30 p.m., at Bahi Road in Dodoma one No. B 9457 Detective Corporal Selemani was on duty (patrol) at Bahi road. He found the 1st accused in her house B where many people gathered, and then discovered that those people were taking local liquor commonly known as gongo. He arrested them all (including) the 1st accused who was also among them and taking the same liquor without permit. The charges were (then) opened C against them as per charge sheet.
The appellant admitted that this outline correctly represented what had happened, whereupon the learned District Magistrate convicted her upon her own plea of guilty. The appellant, who is a first offender, then adressed the court in mitigation. She said very   D little. In fact she uttered just one short sentence, which was as follows:
   I have got problems, that is why I manufacture gongo.
  E Immediately after the appellant had said this, the learned District Magistrate proceeded to sentence her. He said:
   The accused is a first offender. I have taken into consideration her mitigating factors, but taking F into account the rempancy (sic) of the offence in the area, the accused is sentenced to 5 (five) months jail.
  G Citing Cross and Jones Introduction to Criminal Law, 7th Edn. at p. 379, and Hattan v R., [1969] H.C.D. 234, Mr. Rweyongeza submitted that, having regard to the circumstances of the instant case, the learned District Magistrate erred in not giving the appellant the option of a fine. Supporting the decision of the learned District Magistrate, Mr. Benne, for the Republic, contended, with a degree of plausibility, that no   H circumstances existed in this case making a custodial sentence inappropriate.
In this appeal I ask myself this question: Is there any merit in Mr. Rweyongeza's submission? I would answer that question in the affirmative. It is not necessary, I think, to   I cite any authority for the proposition that the following principles form part of the law of this country:

   1.   An offender is a member of society and quite often a product of social and A economic conditions. If his interests and those of society are in conflict the former must be subordinated to the latter. If, however, they can be reconciled the court should embark upon that course.
   2.   In determining or assessing sentence what the court must consider is the triad B consisting of the offence, the offender and the interests of society. Thus, the magnitude of the offence and motives to its commission and the character of the offender are some of the matters which the court must have regard to. The court must strive to strike a reasonable balance between the elements of the Ctriad.
   3.   When called upon to impose punishment upon the offender a judicial officer would be right in appreciating that the natural indignating of interested parties and of the community at large should receive some recognition in the sentence  D he imposes, but he would be wrong - very wrong - if he assesses the sentence simply upn the basis of the indignation. It is not sufficient for punishment to be fair to society, it must also fit the crime as well as the criminal. Righteous anger should not becloud judgment.  E
   4.   While it is impossible to over-emphasize the need for justice to be done, it must always be remembered that mercy, not a sledge-hammer, is justice's concomitant. In Sentencing a fellow mortal, therefore, an insensitively F censorius attitude should be avoided. It is wrong to equate the approach of mercy or plain humanity with maudlin sympathy or misplaced pity for the offender. Mercy is an element of justice itself. It is not unlikely that it was his belief in the correctness of that notion which inspired Willam Shakespeare (in Measure for Measure, Act 11, Section 2) to observe, through Isabella, that: G
         No ceremony that to great ones longs,
         Not the king's crown, nor the deputed sword,
         The marshal's truncheon, nor the judge's robe,
         Become then with, one half so good a grace H
         As mercy does.
   5.   Deterrence is a well-recognised purpose of punishment, but imprisonment has never been regarded by judges, lawyers or experts in penology as being the only punishment which is I

A       appropriate for that purpose. The object of punishment to hurt the offender (the justness of the object is, understandably, a subject matter of serious controversy) can fairly often be met by a substantial fine. The fine has several advantages which the punishment of imprisonment lacks. These are mentioned by Alex Samuels in his article, "The fine: The principles" (see [1970] Crim. BL.R. 201) where he says, inter alia:
      "The fine is simple, uncomplicated, adaptable and popular, because it involves no expense to the public, no burden on the prison system, no social dislocation and less C stigma than most other criminal sanctions. Stigma tends to impede reformation."
   6.    In determining or occasion sentence the court is perfectly entitled to take into   D account the necessity of deterring other persons from perpetrating similar offences, but that factor is not the sole or predominant basis for assessment of sentence.
   7.    Generally speaking, imprisonment is only justified if it is necessary that the   E criminal be removed from society. Save where the nature of the offence and the circumstances of its commission call for a custodial sentence, or where the nature of the offence and the circumstances of its commission call for a custodial sentence, or where the court has no discretion in the matter because   F the offence attracts a mandatory sentence of imprisonment under the Minimum Sentences Act, 1972, or under any other legislation, the court should seriously consider alternative punishments before sending an offender to prison, especially if he is a first offender.
   8.    The deterrent effect of a sentence of imprisonment is not always G proportionate to its length.
   9.    The imposition of a substantial fine can have a deterrent effect and may constitute adequate penalty even in a case of serious nature. Its appropriateness or otherwise always depends upon the circumstances of each case.
H    10.    Every reasonable effort should be made to keep first offenders out of prison. Where appropriate, however, the court will send a first offender to prison to demonstrate that crime does not pay or to protect genuine and important interests of the community. A fine will not be imposed on an offender, even a first offender, where that punishment is considered by the court, after having   I paid due weight to each of the relevant

      factors, including the interests of society, as being inappropriate. A
   11.    The remorse or repentance, expressed inter alia in a plea of guilty, is a mitigating factor and must be given due weight by the court when sentencing the offender.
   12.    The prevalence of an offence and the need for sentence to deter the B perpetration of it in future must not be permitted to outweigh the appropriate sentence for the offence itself. Prevalence of offence should be given no more than its due weight. Failure to adhere to that rule may result in offenders being kept in prison for longer than is necessary to protect the interests of the Coffenders, of society or both. In ordinary cases the judicial officer should steer a course between the Scylla of misplaced pity and the Charybdis of severity.
It was once observed by a distinguished jurist -with respect, correctly in my view - that,  D compared with task of deciding what sentence should be imposed on the offender, trying an accused person is as easy as falling off a log. The difficult task must nevertheless be discharged. The offence which the appellant was convicted of attracts the maximum sentence of five years' imprisonment. Bearing that in mind, it is as plain as a pikestaff, in  E my opinion, that Parliament regards the offence as a serious one. It is not surprising that the offence is so regarded.
According to the report of the Government Chemist, put before the learned District Magistrate, those who drink moshi are likely to suffer from the following:  F
   (a)   damage to the eye-sight;
   (b)   very serious damage to the liver;
   (c)   damage to the nervous system; and G
   (d)   general deterioration of health.
It must be correct to say, therefore, that widespread drinking of moshi is bound to have extremely harmful effects on the lives of the drinkers, their families as well as on the life of  H the community at large. Seriousness and prevelence of an offence are, however, just two of the many factors which the court is required to take into consideration in assessing sentence. In the present case the fact that the (serious) offence of  unlawful possession of moshi is a prevalent one (in Dodoma) had to be weighed with the strong mitigating  I factors with existed in the case, to wit:

A    (1)   the appellant is a first offender;
   (2)   she expressed contrition by pleading guilty to the charge;
   (3)   the amount of the illicit spirit she was found in (unlawful) possession of - 11/2 litres - was not considerable;
   (4)   while the method she chose to use in the war against inflation is B unquestionably condemnable, hard life seems to have been the thing which drove her to desperation; and
   (5)   she was gainfully employed as an assistant nurse for many years before she foolishly chose to fight inflation by manufacturing and selling moshi.
  C The learned District Magistrate appears to have entertained the view, that, because the offence she was convicted of happens to be a common one, the appellant had to receive a severe sentence.
With respect, this was wrong approach in law. I should have thought that the decision of   D the Court of Appeal in Silvanus Leonard Nguruwe v Republic, [1981] TLR 67 inflicted a fatal blow on that approach. Speaking through Mwakasendo, J.A. the Court said, at p. 68:
E    Prevalence of an offence is indeed a factor which a trial court should always take into account when assessing a proper sentence to impose in any particular case; but it would be contrary to principle to consider this factor either as the predominant or only factor that must guide the F court in its consideration of sentence.
Section 30 of the Moshi (Manufacture and Distillation) Act, 1966 (hereinafter referred to as the Act) which creates the offence the accused was convicted of reads as follows:
G    30. Any person, other than a licensee or a distiller, who has moshi in his possession shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding five years.
  H It leaps to the eye that there is no mention in the section of punishment of a fine. It is an elementary principle of common law that where a Statute creating an offence lays down in no un-certain terms the sort of punishment to be imposed on the offenders   I against that Statute, it is incumbent on the court called upon to enforce the law to act within the strict language of the law. The section does

not, in my considered opinion, bring that principle into play. I hold that view because, in  A my opinion, the legislature having used the word "liable" in the section, imprisonment becomes the maximum, and not the sole, punishment which can be imposed on the one contravening the section. But assuming that that interpretation of the section is wrong, it  B seems to me that the application of the common law principle in this case must be subject to section 27(3)of the Penal Code, which reads:
   A person liable to imprisonment may be sentenced to pay a fine in addition to, or instead of, imprisonment. C
That being so, it cannot be doubted, in my opinion, that in the instant case the learned District Magistrate had the discretion at least to impose on the appellant the punishment of a fine. Did he exercise that discretion judicially? I am decisively of the view, having  D given anxious and, I hope, careful consideration to both aggravating and mitigating circumstances in this case, that that question must be answered in the negative.
In my opinion, the learned magistrate ought to have exercised his discretion in  E accordance with what was laid down by Georges, C.J. (as he then was) in Hattan v Republic (supra). In the course of his judgment the learned Chief Justice said:
   I am quite satisfied that the learned Resident Magistrate was misdirecting himself, when he F stated that "a fine albeit heavy, would not meet the requirement of this case." Wherever a first offender is concerned the emphasis should always be on the reformative aspect of punishment unless the offence is one of such a serious nature that an exemplary punishment is required, or unless the offence is so widespread that severe punishment is needed as a G shock deterrent.
The appellant in that case, an American seaman, stole a radio belonging to a prostitute who he had met on his day-off when his vessel called at D'Salaam. The magistrate's  H court sentenced him to six months' imprisonment. The sentence was varied to a fine of shs. 1,000/- or, in default of payment, three months' imprisonment. In my opinion, neither exemplary punishment nor a severe punishment as a shock deterrent was necessary in the instant case. Bearing in mind the existence of strong mitigating factors in the case, I am  I decisively of the opinion that the sentence meted out to

  A the appellant is manifestly excessive and that deterrent purposes and the interests of society could have been attained by means of imposition of a substantial fine. But since the appellant has already served slightly over half of the custodial sentence imposed on her, it would not be fair to the appellant, in my opinion, to set aside the sentence of   B imprisonment and substitute therefor a fine. In my view, the period the appellant has spent in prison serving that sentence is a sufficient punishment for the crime she was convicted and of and an adequate and firm warning to others not to contravene section 30 of the Act. I would therefore, allow the appeal to a limited extent by reducing the   C sentence of five months' imprisonment to such term of imprisonment as would result in the appellant's immediate release from custody.
Appeal allowed.

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