[1991] UGHC 77

## THE REPUBLIC OF UGANDA IN THE MIGH COURT OF UGANDA AT KAMPALA

## CRIMINAL REVISION ORDER NO. 52/91

## ORIGINAL CRIMINAL CASE NO. MM.65/89

RESPONDENT UGANDA ::::::::: 11111111111111111111111111111111111111 VERSUS

FRANCIS DEGO :::::::::::::::::::::::::::::::::::: BEFORE: The Hon, Mr. Justice G. M. Okello: **GONFIRATION OF SENTECE:**

This file was sent to this court from Moyo Magistrate's Court for confirmation of sentence under section 167 of the Magistrates Court ACT 1970. The relevant file was placed before me.

On perusal I found that the accused was tried and convicted of shop breaking and theft contrary to sections $283(a)$ and 252 of the Penal Code Act. Subsequently he was sentenced to twenty months imprison. ment or to a fine of shillings ten thousand. The accused had one previsous conviction of a similar offence.

I am satisfied that the congiction of the accused in this or the ease was proper because there is ample evidence to support it. However, a sentence of imprisonment for twenty months does not attract confirmation under section 167(2)(a) $MCA'70$ . For a sentence to attract confirmation, under this section, it must be for a period of two years imprisonment or over or it must be on order for preventive detention under the provisions of the Habitual oriminal (Preventive Detention) Act.

In the instant case, the accused was sentenced to only twenty months imprisonment. This is less than two years. Secondly no order for preventive deten tion, under the provisions of the Habitual Criminal (Preventive Detention) Act was made. In the circumstances confirmation of the sentence is not necessary.

$.../2$

When the file was sent to the DPP for his view, it was returned with a letter ref\* 6/4/2 of 24/8/90\* In that letter Betty Nandawula a state Attorney writing for the DPP was of the view that although the withness (PWl)did not specifically state in his evidence that he was injured when he was speared, the word speared imported the meaning of piercing of the s skin and that this was capable of supporting a conviction for assault occasioning actual bodily.haxm\* She was of the same view that it is not necessary to produce medical evidence to prove bodily harm\* The learned state Attorney was also of the view that the reception on oath of the evidence of the child of 14 years of age without record of the prior conduct of a voire dire to determine whether or not the child understood the nature of an oath was improper\* She further agreed that the default sentence of ⁴ months imprisonment for a fine of Shs\*500/= is clearly illegal as it violates section 192(d) of the MCA'70\* She did hot wish tO be heard in the event of a Revisional Order being made\*

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The accused must have served the full length of the illegal default sentence by now\* So whatever I do now serves a purely academic purpose which is not of much use to the accused person.

The wrongly admitted evidence of the child (JW2) apart, there .is suffiein cient evidence to support not only the conviction for common Assault contrary to section 227 of the Penal Code Act but even of Assault occasioning actual bodily harm\* But no useful purpose will be served by substituting the conviction for common assault contrary to section 227 *of* the Penal Code entered by the trial Magistrate with that of Assault occasioning actual bodily harm contrary to section 228 of the Penal Cpde Act because the accused must have long served the sentence. However, the illegal default sentenced of 4 months imprisonment for a fine of Shs,500/= will not be allowed to stand\* It is set aside and in its place it is substituted ^a default sentence of days imprisonment for the fine of Shs,500/s

................\*

^573771 '