[1992] UGHC 72

me Hom. Mrs. Justice Founder Altende

FIRST STEMBERS IN THE HIGH COURT OF UGANDA AT KAMPALA<br>WOND PLOOD CRIMINAL APPROVED poten cen 2 CRIMINAL APPEAL NO. 59 OF 1992 ORIGINAL CR. CASE NO. KCC.992/92 (Arising From The "Chief Magistrate's Court of Mengo)

1. CHARLES SEKITO ) $2.$ KATO GEORGE

ouilit

APPELLANTS 1111111111111111111 $\cdots \cdots$ VERSUS and the state $\mathbf{G} = \mathbf{V} \mathbf{G} \times \mathbf{C}$

**UGANDA \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** BEFORE: The Honourable Mrs. Justice M. Kireju JUDGEMENT.

the sing of producting their an element This is Appeal brought by the two appellants against sentence which was passed against them on $23/10/92$ by Grade 1 Magistrate at Mengo. The appellants were charged of theft contrary to section 252 of the Penal Code and were convicted on their own plea of guilt and sentenced to 12 months imprisonement sach. They have now appealed against sentence on the following 3 grounds.

South with AT TOE LEADING That the learned trial Magistrate erred in law when $(1)$ $\theta_{\text{E}} = \epsilon^{\mu} \sigma \sigma_{\mu}$ , $\delta \sigma_{\mu}$ も行きもするため sentencing the appellants when he did not take into consideration the appellant's past record and that they were first offenders. That the learned trial Magistrate misdirected himself $(2)$

when sentencing the appellants when he addressed his

mind to the assumption that thefts, of sand are on the

increase in the Country. $\mathbb{R}^n \to \mathbb{R}^n$

(3) That the learned trial Magistrate misdirected himself when passing sentence and passed an excessive sentence

not taking into account the value of the property

stolen.

or when The brief facts of this case are that on a date and

$\mathcal{H}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G}) = \mathcal{G}(\mathcal{G})$

month not stated, police carried out inquiries after getting

$\mathcal{C} \rightarrow \mathcal{C} \mathcal{M}$

a complaint from Damba Kasozi that his sand was being stolen from his land. The police found that the sand was being transported in a tractor Reg. No: URJ 568 the trailer did not have a number. Later A1 Charles Sekito who was the driver of the tractor was arrested with A2 and they both admitted having loaded the said sand on the tractor. They were charged and brought to court. $\begin{array}{c}\n1 & 111 & 111 & 111 & 111 \\ 1 & 111 & 111 & 111 &$

Mrs. Musoke, who represented the appellants submitted at length on the 3 grounds of appeal. Mr. Byamukama, counsel for the State conceded that there were some misdirection in the lower court as pointed out by counsel for the appellants. He agreed that the sentence was harsh and excessive and should be reduced. After listening to the above submissions I reduced the imprisonment sentence to 2 months and promised to write my full judgement of this appeal.

Mrs. Muscke counsel for the appellant submitted on the 1st ground that according to court record there was no previous record which meant that the appellants were first The record does not show how long the accused persons offenders. had been on remand and the age of the accused persons was not considered. Counsel submitted that since the above factors were ratio will gar hit. not considered the appellants should be released immediately -she referred court to the case of Uganda vs. Orengan 1976 HCB 146 in support of her submission. In that case it was held that $should$ in passing sentence what/' be followed is to pass a sentence reasonably proportianate to the actual offence committed : by the accused so that facts like gravity, prevalence of offence, antecedents of accused and any indication of remorse $11.392$ or repentence on his part are considered.

^he trial Magistrate when **sentencing'** the appellants address ^d himself to the fact that, they were first offenders and they prayed for leniency\* The trial Magistrate 'fiid not consider the period the appellants had been on remand as there was no period to consider. The accused persons on 21/10/92 committed the offence and on 2J/10/92 only two days later they were charged, tried, convicted"and sexi- -^nced\* The period they had spent on remind was therefore ncg^igable • and failure to consider it did pot occassion any miscarriage ofjustice. How ever considering the fact that the appellants were first offenders who pleaded guilty to the charge, and showed some remorse, a prison sentence of ¹² months was harsh in the circumstances. The first ground of appeal succeeds# - - ---- \_•

On the second ground counsel submitted that the Magistrate .... ' 7 .< \ acted on his own fantacy and imagination when he said that thefts were on the increase in that part of the country\* Counsel submitted that courts should never act on fantacies but on facts before it. Counsel referred court to the case of Qketh Qkale vs. 197^ EA, Uganda vs. Orengan (Supra) Uganda vs. Twahilibin Shafu /797?7 HCB 26? in support of her submission\* Counsel submitted that since the ground which, the Magistrate ; v.' ■' / ■'• •I ' v' -'ⁱ .based himself to sentence the appellants was baseless, they should be released as they had already spent a month .in prison\*

After perusing the court record especially what was said by the prosection and the Magistrate before sentencing the accused persons, I found that no where on the record did the prosecution, submit that thefts were on the increase in that part of the country. I agree with counsel for the appellants that the..trial Magistrate acted on his own motion when-he said that thefts were on the increase in that part of the country. I am of the opinion that this was a "^direction on the part of the Magistrate because he is

supposed to act on the evidence on record. If ,he was trying to impose a deterrent sentence, he should have facts on which to base it, so that the accused person is not prejudiced in defending himself. The case of Uganda vs. Orengan refer. I have therefore found that the trial Magistrate misdirected himself when he based his sentence -on facts which wore not before court, and tnis might have influenced him to impose a harsh sentence on the appellants.

On the thrid ground, counsel submitted that the\* Value of the property stolen was shs.5O,OOO/= and that in the absence • of any other evidence it is presumed that the property was. returned to the owner. Counsel submitted that since the owner received back his property there was no need to imprison the appellants they should have been cautioned, I do not agree with counsel that because there is no evidence to show what happended to the stolen property, court should assume that the property was returned to the'owner. If the property was stolen it could be right to assume that the accused persons kept the stolen property. However-these are the matters the trial Magistrate should have considered before sentencing the accused, persons, so that there is no speculation. As this was ^a petty theft the trail Magistrate should have imposed a- lesser sentence but he was influenced by the fact that ho wanted to. impose a deterrent sentence so that prospective offenders can learn from the appellants experience. As I have already said this was a misdirection as the trial Magistrate did not have the faxrts on which to base himself. The trial Magistrate, did not properly follow the provisions of S.155^5) of M. C-. A\* on sentencing. .»

«.-/5

- ⁴ -

After considering all the grounds of the appeal I have (Jdmep'bo' the-conclusi-on—that "the sentence of ¹² months imposed on the appellants was e'xp-csslve'taking into consideration that they pleaded guilty to the charge, they were first offenders and the value of the property stolen was not much\* The maximum sentence for this offence is ⁵ years\* I shall have the sentence imposed on the appellants reduced to ² months. imprisonment.

M. KIREJU

JUDGE, 30/11/1992