Hamza v. R. Crim. App. 22-A-71; 23/3/71; Kwikima Ag. J.

 Hamza v. R. Crim. App. 22-A-71; 23/3/71; Kwikima Ag. J.

The appellant, who was a first offender, was convicted of unlawful possession of moshi c/s 30 of the Moshi (Manufacture and Distillation) Act 62/66 and was sentenced to 18 months imprisonment. The evidence against the appellant was overwhelming and the only issue an appeal was whether the sentence imposed was excessive or not.

Held; (1) “There can be no question however, that the sentence awarded to the appellant was manifestly excessive. In the first place the appellant should have been given the option of paying a fine in order that he may have avoided getting in touch with dangerous or hardened criminals in jail. In cases where the accused is an occasional or amateur offender it is normally appropriate to award a fine. [See Hadija Omari v. R. 1970 H. C. D. 158.] In this case there is no evidence that the appellant was more that an amateur or occasional offender. He must therefore be held to be so.” Accordingly I will set aside the sentence of the appellant. In substitution thereof I order that the appellant who has been in jail since 18.11.70 be sentenced to such term as will result in his immediate release. (2) Sentence set aside and substituted therefore such a term as will result in his immediate release.