Mashauri Masaba v. R., Crim. App. 630-M-71, 19/5/72.

 

Mashauri Masaba v. R., Crim. App. 630-M-71, 19/5/72.

            JONATHANI, AG. J. The appellant was convicted on his own plea of driving while his efficiency was impaired by drinks contrary to Section 49(1) of the Traffic Ordinance and sentenced to a fine of Shs. 400/= or 4 months’ imprisonment in default. He was also disqualified from holding or obtaining a driving licence for a period of 18 months. The fine was paid

            The appeal is only against the sentence and order of disqualification. The facts as outlined b the prosecution and admitted by the appellant were briefly that, on the 31^st October, 1971 in the township of Musoma, a Police Constable stopped the appellant who was driving a Government Land drover, because judging from his manner of driving he suspected him of being under the influence of alcohol. The appellant admitted to him that he was drunk while the medical report, vague as it is would seem to bear this out. On these facts he was convicted. I am satisfied the conviction was proper.

            The appellant said nothing in mitigation regarding sentence, but when asked if he had cause to show why his licence should not be suspended, he is recorded as stating tersely thus: “It is bad luck”. The Court then proceeded to pass the sentence and to make the order. In his petition the appellant has stated not only that he had a clean record of driving dating back to 1956 but also that he had a family of ten to support on no more than his monthly salary of Shs. 160/=, and that but for a relative of his who advanced him the money for paying the fine, he would have gone to prison. I have no doubt that, if these were the circumstances and he had made them known to the Magistrate, which he did not, the fine which I would consider excessive, would not have been imposed.

            While the appellant should have said something in mitigation, it was also incumbent upon the court to find out the appellant’s means so as to enable it to arrive at a proper sentence, for if the Magistrate was minded that the appellant should not go to prison, he should have sentenced him to such fine as was within his ability to pay, which he could have ascertained only after making due inquiry. In the event, I would consider it unlikely that he would have imposed the fine had he found the appellant was a person of lowly circumstances, and for this reason and also for another reason which will be apparent presently, I would grant the petition and reduce the fine to a sum of Shs. 150/=. Accordingly, it is ordered that Shs. 250/= out of the fine paid should be returned to the appellant.

            And now to the order of disqualification. It is raised in the petition that, the material day being a Sunday when he was off duty, he had been drinking when he received an order from his superior officer that he should convey back in that landdrover some students of the Home Economics Training Centre, Buhare some four miles from Musoma Government Hospital where they had been receiving some training in nursing. He says that was an order with which he had to comply lest he should lose his job. Although this is belated explanation, it cannot lightly be dismissed. I have had a look at a calendar for last year and, contrary to what learned State Attorney said at the hearing of this appeal, it does appear that the date when the offence was committed was, in fact, a Sunday which is normally a public holiday. It the appellant was off duty as he claims, he was entitled to drink. In the light of this, I think there is reason to accept his explanation that he was sent for while he was drinking and asked to drive the trainees back to their institution, which order he felt obliged to carry out. It may very well have bee in those circumstances that he was found driving. In my view, if such were the circumstances in which the offence was committed, the lower court would not have made the order of disqualification. Accordingly, the disqualification rescinded.

            Ed. Note: The court’s ruling in relation to the disqualification order is consistent with that laid down in Eli Sambila v. R., (1969) H.C.D. n. 63.