Hattan v. R., Crim. App. 557-D-69, 22/8/69, Georges C. J.

Hattan v. R., Crim. App. 557-D-69, 22/8/69, Georges C. J.

The appellant was an American seaman on board a ship visiting Dar es Salaam. On his day off, he met one Mariamu, apparently a prostitute, and both went to her home, presumedly for sexual relations. At some stage, they fell asleep. When Mariamu awoke she found the appellant gone and her radio missing. The radio was later found in the appellant’s possession. He was charged of theft c/s 265, Penal Code, and convicted on his own plea, being sentenced to six months imprisonment. Appeal from sentence only.

Held: (1) “Mr. Velji has told me from the bar that the appellant’s defence was that he had purchased the radio from Mariamu …….. He said that the appellant changed his plea to guilty because it became clear that the decision of the matter would have taken at least 2 weeks during which time he was responsible for his boarding and lodging here at considerable expense. In the circumstances he though he would cut his losses, pleads guilty and ask for leniency. As I indicated in the course of the argument, I do not think that the circumstances under which a plea of guilty has been entered are particularly relevant to the issue of punishment. Once an accused person voluntarily pleads guilty and accepts the facts put forward by the prosecution then punishment must be determined having regard to the facts as put forward and as admitted.” (2) I am quite satisfied that the learned Resident magistrate was misdirecting himself, when he stated that “a fine albeit heavy, would not meet the requirement o 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 shock deterrent. For example, it may be that a first offender found picking pockets in a market or at a football match may well be sent to prison because it is well known that offences of that nature are very common. There is nothing on the record to indicate that thefts by seamen from prostitutes with whom they consorted posed such a problem as to require a severe deterrent. The circumstances of the theft itself are in no way extraordinary”. (3) “There is nothing on the record to support the magistrate’s statement that the conduct of the appellant in the commission of the felony was “a deliberate contempt for the laws of this country.” If indeed the learned magistrate felt that the man may have been tempted to steal then clearly his having fallen to this temptation cannot be regarded as deliberate contempt of the law. Further it should be noted that laws against stealing are among the most universal of laws. There is nothing particularly Tanzanian about the law of theft which would make a theft here a deliberate contempt of the laws of this country. This could more aptly be said of disrespectful behaviour towards the National Anthem, or the Flag or other symbols and institutions of nationhood or deliberate disobedience of a law particularly brought to the notice of a visitor.” (4) “The position then was that this was an ordinary case of theft by a person with an otherwise unblemished record. This does not appear to be the type of case in which peremptory imprisonment is called for unless the law prescribes otherwise …. 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 learned bad habits from more seasoned criminals.” (5) Sentence varied Shs. 1,000/- fine pr. 3 months imprisonment.