[2024] UGHCCRD 66

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT HOLDEN AT KAMPALA**

**CRIMINAL DIVISION**

**CRIMINAL APPEAL NUMBER 077 OF 2024**

**(**Arising from Nateete/ Rubaga Court Case Number 0432 of 2024**)**

**SONKO MICHAEL:::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**JUDGMENT**

**BY JUSTICE GADENYA PAUL WOLIMBWA**

Sonko Michael, hereinafter called the appellant was convicted by His Worship Adams Byarugaba, Principal Magistrate Grade I, of obtaining money by false pretenses contrary to sections 305 of the Penal Code Act. He was sentenced to fifteen months’ imprisonment and ordered to pay the complainant compensation of UGX5,350,000.

The Appellant was dissatisfied with the sentence and asked the court to set him free since he had paid compensation and served part of the custodial sentence. Ms. Apolot Joy Christine, Senior State Attorney, who appeared for the Respondent opposed the appeal. She submitted that the sentence of fifteen months’ imprisonment imposed on the appellant was fair given that the offence carries a maximum sentence of five years. However, she advised the court to deduct the period the Appellant spent on pretrial remand from the sentence since the Trial Magistrate did not deduct it from the sentence.

An Appellate court will only interfere with the sentence of the lower court in rare circumstances. **In R vs. Havilland (1983) 5 Cr. App. R(s) 109 it was held that:**

***An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice.***

**The Supreme Court in Kamya Johnson Wavamuno vs. Uganda Criminal Appeal No.16 of 2000** held that:

***It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently.***

As guided by the Supreme Court in **Rwabugande vs. Uganda 2017 UGSC8(3 March 2017)** a sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision. In this case, although the Appellant had spent 21 days on pretrial remand, the Trial Magistrate did not mathematically deduct this period from the sentence. Therefore, in line with **Rwabugande** case (supra), the sentence of the Trial Magistrate is hereby set aside for being illegal. The Appellant will be resentenced pursuant to **Article 28(3) of the Constitution**.

The offense of obtaining money by false pretenses carries a maximum sentence of five years’ imprisonment. However, only the worst or repeat offenders are given the maximum penalty. Other offenders such as the Appellant receive lower sentences based on the combination between the aggravating and mitigating factors. In this case, the Appellant pleaded guilty and thus saved court’s time. He also offered to pay compensation to the victims of his crime. In court, he informed me that he has paid compensation to the victims. These two mitigating factors show that the Appellant is remorseful and has accepted responsibility for the offense and is therefore willing to reform. Be that as it may, the Appellant breached the trust that customers had reposed in him by defrauding them. For his selfish reasons, he defrauded the victims of their hard money which they had saved to travel to Canada. Not only did the Appellant inconvenience them, he caused them a lot of distress and financial loss.

For these reasons, therefore, the Appellant cannot get a lenient sentence. He needs a reformatory sentence that will help him to change. I am aware that he has been in prison since 13th June 2024. This about five months. Five months is however, too low given the circumstances under which he committed the offense. I consider a sentence of one year’s imprisonment as adequate punishment for the Appellant. **Article 23(8) of the Constitution** directs me to deduct the period the Appellant has spent on pretrial remand from the final sentence. The Appellant spent 21 days in pretrial remand, which I am deducting from the sentence. Therefore, the Appellant will serve a net sentence of eleven months and nine days in prison. The order of compensation will remain undisturbed.

**Decision**

The Appeal is allowed and dismissed in part with the following orders:

1. The sentence imposed on the appellant is set aside and substituted with a new sentence. 2. The Appellant will serve a custodial sentence of eleven months and nine days’ imprisonment with effect from 13th June 2024. 3. The order of compensation shall remain undisturbed.

It is so ordered.

Gadenya Paul Wolimbwa

**JUDGE**

6th November 2024.

Judgement delivered in open court in the presence of the parties and Mr. Najjib Kagwa, Court Clerk.

Gadenya Paul Wolimbwa

**JUDGE**

6th November 2024.