Facts
The appellant pleaded guilty to the offence of being found in possession of native liquor, moshi, and on conviction was sentenced to five month's imprisonment. She was not given a fine option.When addressing the court in mitigation, the appellant, a first offender, said that she had problems that is why she manufactures gongo (moshi). This was an appeal against sentence. The appeal court considered the law and the circumstance of the case.
Held: (i) It is a common law principle that where a statute creating an offence lays down in no uncertain terms the sort of punishment to be imposed on offenders against that statute, it is incumbent on the court called upon to enforce the law to act within the H strict language of the law.
(ii) section 30 of the Moshi (Manufacture and Distillation) Act uses the words "shall be liable on conviction to imprisonment" which when properly construed gives discretion to the court to impose an option of a fine sentence.
(iii) the application of the common law principle (i.e.(i)) must be subject to section 27(3) of the Penal Code which says that a person liable to imprisonment may be sentenced to pay a fine in addition to, or instead ofimprisonment.
(iv) an offender is a member of society and quite often a product of social and economic conditions. If his interests and those of society conflict the former must be subordinated to the latter. If however, they can be reconciled the court should embark upon that course.
Case Information
Appeal allowed to a limited extent
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