REPUBLIC v ASIA SALUM AND OTHERS 1986 TLR 12 (HC)

 

REPUBLIC v ASIA SALUM AND OTHERS 1986 TLR 12 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mnzavas JK

21 December, 1983

CRIMINAL REVISION 7 OF 1983

Flynote

G Criminal Practice and Procedure - Sentencing - Youthful offender - First offender -

Considerations to take into account

-Headnote

The accused mother and her 17 year old son were convicted of assault causing actual bodily

harm. The mother, a first offender, and her youthful son were each sentenced to twelve months'

imprisonment. The record of the proceedings was H called by the High Court for the purpose

of satisfying itself as to the correctness, legality or propriety of, inter alia, the sentences imposed.

Held: (i) Where a first offender is concerned the emphasis should always be on the reformative

aspect of punishment I unless the

1986 TLR p14

MNZAVAS JK

A offence is 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 shock deterrent;

(ii) first offenders should not, as a rule, be sent to prison where there is an opportunity to

mix with and learn bad habits from more seasoned criminals; B

(iii) the sentence of 12 months imprisonment imposed on the first accused in the

circumstances of this case was rather on the high side;

(iv) youthful offenders should not be sentenced to terms of imprisonment. C

Case Information

Order accordingly.

Cases referred to:

1. R. v Kidato Abdulla [1973] L.R.T. 82 D

2. R. v Teodosio s/o Alifa [1967] HCD 216

3. Hattan v.R. [1969] HCD 234.

[zJDz]Judgment

Mnzavas, J.K.: On 23/11/1983 Asia Salum, Hussein Said and Rashidi Saidi were jointly convicted

of assault causing actual bodily harm c/s 241 of the Penal Code. E

Asia Salum and her son, Hussein Said, were each sentenced to 12 months imprisonment whereas

her other son, Rashidi Saidi, who the trial Court found to be 16 years old was put under

probation for a period of one year. F

Soon after accused's relatives complained to the Registrar of the High Court who brought the

matter to the Notice of the Court.

Acting under section 327 of the Criminal Procedure Code this Court called for the record for the

purpose of satisfying itself as to the correctness, legality or propriety of the finding and the

sentences imposed. On inspection of the record the G Court minuted:

Admit for revision....

(i) The sentences imposed could appear to be rather severe for first offenders. H

(ii) 2nd accused is a school boy.

Let the D.P.P. be served with notice.

When the matter came up for hearing on 12/12/83 Mr. Shio, learned state attorney, argued in

support of the convictions. As for the sentences of 12 months imposed on the first and second I

1986 TLR p14

MWALUSANYA J

A accused the learned counsel was of the view that the first accused, Asia Salum, was properly

sentenced to 12 months imprisonment. It was argued that the sentence of 12 months in respect

of the first accused was not manifestly excessive bearing in mind that the offence of assault

causing actual bodily harm carries a maximum penalty of 5 years imprisonment. B

As for the second accused, Hussein Saidi, the Republic argued that there was undisputed

evidence that he was a school boy aged seventeen and in Form III. It was submitted that it was

wrong for the trial court to sentence him to a term of imprisonment.

C The learned state attorney had no quarrel with the order by the trial court to place the third

accused under probation for one year.

After hearing learned counsel's submission I set aside the sentence of 12 months imprisonment

imposed on the second D accused, Husseini Saidi, and in substitution therefore I sentenced him

to such term of imprisonment as would result in his immediate release from custody unless he

was otherwise lawfully held; and reserved my reasons for such order. I now E give my reasons:

In so far as the convictions are concerned I agree with the Republic submission that there was

ample evidence in support of the charge of assault causing actual bodily harm.

Coming to the sentence of 12 months imprisonment there was no dispute that the second

accused is a school boy and, he is 17 years old; and he is also a first offender.

F In imposing sentence the court is required to take into consideration several factors; such as,

the gravity of the offence the record of the accused, his age and the interests of society and those

of the accused. That this is the principle to be followed is clear from the decision of this court in

Republic v Kidato Abudlla [1973] L.R.T. 82.

G In the present case the second accused is, as already mentioned above, aged seventeen. He is

a form III student and a first offender. As for the nature of the injury on the complainant, PF.3

(exhibit A) shows that he suffered a cut wound 1/2 H x1/4 x1/4" on his face and dislocation of

the left shoulder. Taking all these factors into account the learned trial magistrate should have

found that it would have served no useful purpose to sentence the second accused to a term of

imprisonment. The imprisonment would only serve to bring the school boy into contact with

hard core criminals and make him more of a criminal by the time he left the prison than when

he entered it. That youthful offenders should not be I sentenced to terms

1986 TLR p15

MWALUSANYA J

A of imprisonment is also evident from the decision of this court in R. v Teodosio s/o Alifa

[1967] HCD 216.

On the facts of this case the second accused should have been bound over, or put under

probation or even discharged, conditionally or absolutely u/s 38 of the Penal Code. It is for these

reasons that I ordered the release of the second accused on 12/12/83. B

Coming to the first accused it is not in dispute that she is, but for this offence a first offender. It

was no doubt most unbecoming for her and her children to assault their neighbour the way they

did, and for that she deserved a deterrent sentence. But the question is whether the sentence of

12 months imprisonment was so manifestly excessive as to call for C interference by this Court.

As I have already mentioned above the learned state attorney argued that the sentence was

proper in the circumstances. May be the learned state attorney has a point; but it has also to be

remembered that the 1st accused had an unblemished record; and, as it was held by this Court in

Hattan v R. [1969] HCD 234 "Where a first D 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 shock deterrent". E

The Court also said: "It is generally agreed that first offenders should not as a rule be sent to

prison where there is an opportunity to mix with and learn bad habits from more seasoned

criminals." Had the learned trial magistrate taken into account the factors to be taken into

account in sentencing before sentencing the accused to twelve months imprisonment F he

would no doubt have found that despite 1st accused's recklessness and unsocial behaviour she,

being a first offender, deserved some leniency.

Taking these factors into account it is the view of this Court that the sentence of 12 months

imprisonment in the circumstances of this case was rather on the high side. G

I accordingly hereby reduce the sentence of 12 months imprisonment to one of 3 months

imprisonment only.

Order accordingly H .

1986 TLR p16

A