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G. Arell & A. Hocken .v. R. Crim. App. 8-D-70; 23/1/70; George C. J.



G. Arell & A. Hocken .v. R. Crim. App. 8-D-70; 23/1/70; George C. J.

The appellants in this case are seamen. They were charged with stealing goods in transit, contrary to sections 269(c) and 265 of the Penal Code. The particulars alleged that at 4.15 a.m. in the

Port area, they stole a carton containing 12 bottles of gin valued approximately 432/=, the property of East African Cargo Handling Services. They pleaded guilty and the trial magistrate sentenced then to 4 months’ imprisonment. At the trial, it was urged in their favour that they had pleaded guilty and that they were under the influence of drink at the time, as evidence by the clumsy manner of taking. The prosecution stated that thefts from the port were becoming “epidemical”. Such thefts damaged the economy of the country. The trial magistrate stated that he would take into account the fact that the appellants were first offenders and that they had pleaded guilty. He commented that thefts from the port area were on the increase and that the courts were concerned with the problem. These thefts, he thought, should be discouraged, and heavy sentences might help. He took also into consideration the fact that the appellants were tipsy. He considered a prison sentence was appropriate and imposed a term of 4 months’ imprisonment.

            Held: (1) “In deciding whether or not it should interfere with a sentence, an appellate tribunal must consider whether the magistrate has in fact misdirected himself in any particular, or whether the sentence is so manifestly excessive that it is clear that there must have been a misdirection even though not explicit.”  (2) “[The defence] points to one particular sentence in the trial magistrate’s remarks, which [it] says, is a misdirection. The sentence reads: - “Having considered all these factors, I am of the view that imprisonment sentence is a desirable – at this juncture, I must stress that he emphasis is on the reformative aspect of the punishment.” A moment’s thought must clearly show that there can be little hope of reforming a first offender by imposing on his a short prison sentence. All authorities are agreed that short term prison sentence may have a harmful effect in that they expose the offender to hardened criminals from whom he might pick up socially dangerous ideas, and in that hey do not allow sufficient time for enlightened prison authorities to teach useful skills or inculcate socially correct attitudes. Had the magistrate imposed the sentence in this case because he thought he was helping in the reform o the appellants, I would have had no hesitation in stating that his was a serious misdirection …. It may be that the trial magistrate slipped in this phrase in an effort, so to speak, to take out insurance against appeal, having regard to a comment of mine in Vernon L. Hatton v. Republic, [1969] H.C.D. n. 234, an appeal from the same magistrate. I said there- “Wherever a first offender is concerned, the emphasis should always be on the reformative aspect of punishment.”  I see no reason to depart form this attitude, and would indeed re-emphasize it. I went on, however, to add – “unless the offence is one of such a serious nature that an exemplary punishment is required, or unless the offence is so wide-spread that severe punishment is needed as a shock deterrent.” As an example, I quoted that of a first offender found picking pockets at a football match. It is clear that the trial magistrate in this case thought that the offence fell into the group of widespread offences where shock –deterrent was necessary …. I cannot say that the trial magistrate erred in placing the offence in that particular category.”(3) “Before me …… arguments were geared largely to establishing hat this case and the case of Vernon Hatton cited above wee so similar that he same principles should apply to produce the same result. I do not think the cases are similar ….. The fact that a sailor the fact that a person is sailor should make any difference in the punishment he should receive, unless the offence for which he is being punished is one peculiar to the particular locality which he may not have known was an offence.” (4) “In this case, there to acquit the accused on all these three stealing counts namely 2nd, 4th and 6th counts.”

            Held: (1) “With regard to the stealing counts, learned State Attorney has sought to distinguish his instant case from that of Rajabu s/o Mbaruku v. R., which the learned magistrate followed, by submitting that in that case, the passengers did not care where the money they paid to the accused went, whereas here Julius Lyimo intended the monies he paid to the appellant to go to the Government; and also that in that case the accused’s employers, that is, the East African Railways and Harbours Administration, did not really suffer any loss, whereas in this instant case, the Government did not really suffer any loss, whereas in this instant case, the Government dis in fact pay out on these forged local purchase orders. However, with respect, I fully agree with the learned magistrate, who did consider these particular aspects and found that this instant case was indistinguishable from that of Rajabu s/o Mbaruku v. R., which he felt bound to follow, and did. It must be said at once that, in my view, the learned magistrate cannot be faulted for this, because he was bound to follow the decision in Rajabu s/o Mbaruku’s case. But I am not so bound. In coming to the decision Spry J., (as he then was) in the case cited, very reluctantly followed English authorities on the interpretation of the expression “by virtue of his employment”, remarking that the English cases were based, and I quote: “on a very narrow interpretation”. To my mind, they are based on too narrow an interpretation, and I do not feel disposed to follow them. Spry J., however, felt constrained to follow the English interpretation because of the wording of section 4 of the Penal Code. However, despite the wording of the section, I do not feel inclined or even constrained to follow the English decisions, particularly now that appeals to the Privy Council have been abolished and English cases have no more that persuasive authority. In his judgment, Spry J., also considered section 262 of the Penal Code, the relevant part of which reads:- “When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received …..” he was, however, of the opinion that his section could not e called in aid in such cases, presumably on the ground, as stated by him and quoted by the learned magistrate in citing the case, the- “What is relevant is what is in the mind of the receiver, not what is in the mind of the payer.” This last proposition is, I think, arguable. In any event, as sufficiently indicated, I am not persuaded that the narrow construction put on the expression “by virtue of his employment” by the English authorities should be followed in this country. Accordingly with respect, I must differ from the decision of Spry, J., and hold that in the circumstances for this instant case, the appellant received the monies by virtue of his employment as a prison officer, that is, a servant of the Government. He should therefore, have been convicted of stealing as a Government servant, contrary to section 265 and 270 of the Penal Code, as charged.” (2) “The appellant’s appeal is dismissed in its entirety …….. The appeal of the Republic is allowed, convictions are formally entered on the three counts of stealing by a person employed in the public service, as charged.”

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