Mtanga v. R. App. 554 – D- 10; 4/11/70; Biron J.

 

Mtanga v. R. App. 554 – D- 10; 4/11/70; Biron J.

The appellant was convicted on four counts of creating a disturbance in a public place, assault causing actual bodily harm, going armed in a public place and malicious damage to property. The was sentenced respectively to imprisonment for two months, six months, six months all to run concurrently. On the fourth conviction, he was discharged under section 38 (1) of the Penal Code, conditionally that he does not commit any offence for a period of 12 months, Evidence showed that he entered a dance – hall without paying the entrance fee and violently resisted attempts to eject him. In the High Court, the judge considered that there was no merit in the appeal but dismissed the order for conditional discharge.

            Held: (1) [His Lordship set out the provisions of S. 38 (1) of the Penal Code and stated] “As immediately before making this order conditionally discharging the appellant, the magistrate had sentenced him to three terms of imprisonment, two to them of six months each, this order following such sentences is not only unrealistic, but I would say ultra vires, as a pre-requisite to making the order the court must be of the opinion, and I quote: “that it is inexpedient to inflict punishment”, and the court in this case had already inflicted punishment in the form of three terms of imprisonment. The order, therefore, is not only unrealistic, ultra vires, but could even be termed ridiculous.”  (2) “With regard to the terms of imprisonment imposed, they are severe, but in view of the fact that the appellant admitted to previous convictions for creating a disturbance, malicious damage, and uttering abusive language, and the magistrate’s direction that the appellant was the chairman of the local TANU branch no court, to my mind, would in the circumstances, be justified in interfering with the sentences imposed.” (3) “To the extent indicated that the conditional discharge under section 38(1), is set aside, and there is substituted therefore a term of imprisonment for two months.” (4) [Obiter] “If the magistrate wanted some assurance, as it would appear he did, as to the appellant’s future good conduct, he could have called in aid section 33 of the Penal Code.” (5) Appeal dismissed.