LUKATRARIA v. R. Crim. App. 711-D-70, 4/11/70, Onyinke J.

 

LUKATRARIA v.  R.   Crim.  App.  711-D-70, 4/11/70,  Onyinke  J.

The appellant appealed against a sentence of 2 years imprisonment imposed when he pleaded guilty to a charge of             causing death by dangerous driving c/s 44A(1) of the Traffic Ordinance.  In reply to the Allocutus the appellant was recorded as saying “I was born in 1952. I was working in London as Engineer. I    just came to visit my uncle. I am intending to do further studies. I do not mind anything of the fine. I would like to notify my uncle as to the fine and that is my only concern.” In sentencing the appellant the Magistrate remarked, inter alia “It will be wrong in principle to allow criminals to buy their way out of offences as easily and I   cannot help feeling that the accused disregarded traffic law as he    knew his uncle or family would pay his way out.”

Held: (1) (Distinguishing CHANDA KANTA SETHI v.  R. (1962) E.A. 523 (K).  “There is some difference between section 44(a) of the Traffic Ordinance of Kenya and the of Tanzania. I am of the view that where the section which creates an offence specifically empowers the court to levy a fine as an alternative to prison sentence the court should not normally impose a prison sentence unless the circumstances of the case warrant it. On the other hand where the section does not specifically provide a fine as an alternative to prison sentence the court should not normally levy a fine unless there are sufficient mitigating factors to warrant such a course. (2) [The appellant’s reply to the allocutus] does not demonstrate any sign of contrition. On the contrary it showed the extreme levity with which the appellant was treating an offence   which involved the loss of human life and for which he legislature did not think suitable to specifically provide a fine as an alternative to prison sentence. The learned Magistrate was entitled to take this piece of irresponsibility into account in determining sentence. It cannot be said that he exercised his discretion wrongly in imposing a prison sentence on the appellant but the length of imprisonment is another matter. The appellant was a first offender, a young person and of previous good character.” Sentence reduced to 8 months imprisonment. (3)  Appeal dismissed.