Hadija d/o Omari v. R. Crim. App. 1-D-70; 23/1/70; Georges C.J.

Hadija d/o Omari v. R. Crim. App. 1-D-70; 23/1/70; Georges C.J.

The appellant in the case was charged with unlawful possession of moshi, contrary to section 30, Part V, of the Moshi (Manufacture and Distillation) Act, No. 62 of 1966. The particulars alleged that at about 7.30 p.m. on 1^st January, 1970, at Pemba Street in Dar es Salaam, she had been found in possession of 29 bottles of moshi. The appellant pleaded guilty – unequivocally – admitting the facts set out in the particulars. The prosecution pointed out that the quantity of liquor found was such that it must have been intended for

sale and not personal consumption. It was suggested also that the appellant quite likely used a secret moshi-distilling plant. On behalf of the appellant, the probation officer urged that the appellant was a woman of 38 with two of her own children and four of her sister’s children to look after. She had been divorced 16 months ago. He asked the Court to place her on probation. The trial magistrate stated that the offence was a serious offence – prevalent in both small towns and big towns. He thought a deterrent sentence was necessary and sent the appellant to prison for 2 years. It was pointed out on appeal that in another case decided on 22^nd December, 1969, by another magistrate at the Dar es Salaam District Court – Criminal Case No. 1783 of 1969 – an accused person found with 27 bottles had been placed on probation. It was urged that there should be some uniformity. The probation officer appeared. It was enquired from him how probation could be thought appropriate in cases such as this. He appeared to agree that this was not the sort of case in which probation was typically useful. Probation officers did, however, help by stressing the harmfulness of this type of trade and educating the offender so that he or she no longer wanted to engage in it. They also helped by finding alternative income-producing activity.

            Held: (1) “An appellate tribunal should not interfere with a sentence imposed by a trial magistrate unless he has misdirected himself in his remarks on sentence, or unless the sentence is so severe that he must have misdirected himself even though this does not appear explicitly on the record. This case falls, in my view, in the second category.” (2) “I agree that a serious view must be taken of this offence. Under the old Ordinance, the maximum penalty was a fine of Shs. 1,000/= or 3 months’ imprisonment or both. The maximum penalty is now 5 years imprisonment. This change in standards must be reflected in the level of sentence.” (3) “Where the quantity of liquor found with the offender is such that he must very plainly have been distributor, a prison sentence would seem to be correct, even for a first offender. This can be regarded as shock treatment to bring home dramatically both to the offender and to the community at large the gravity of this offence. In such cases, however, there is no need for such an extended sentence as one of 2 years’ imprisonment – particularly where, as in this case, it necessarily involves the disruption of family life and the possible break up of a family unit. The mere imposition of a prison sentence on the first offender is itself the deterrent. I am satisfied that a sentence of 6 months would meet the justice of the case. Is hall accordingly quashing the sentence of 2 years and substitute a sentence of 6 months.” (4) “I should be stated that this is not the type of offence for which probation should be considered proper. Most people in this country should by now be aware that the sale and purchase of moshi are illegal. Education in this matter should not be needed …. It is an offence which is deliberately committed and hardly ever the result of sudden temptation …. I note that the prosecution did not allege in this case that the offence was particularly prevalent in Dar es Salaam or that it often resulted in crimes of violence as often happens up-country. In areas where these factors particularly apply, a sentence somewhat above the 6 months term in this case may well be imposed.”