[1991] UGHC 66

The How. Mr. Justice Solvade

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CRIMINAL CONFIRMATION NO. 44/90 ORIGINAL CRIMINAL CASE NO. 28/90

PROSECUTOR ::::::::::::::::::::::::::::::::::::

## **VERSUS**

ACCUSED ::::::::::::::::::::::::::::::::::::

2. OCAMGUI

3. ONENCAN KATO

## **BEFORE:** The Hon, Mr. Justice G. M. Okello:

## REVISION ORDER NO. 44/90

This case file was sent to this court by the Magistrate Grade 1 in charge of Nebbi District. He was of the view that the trial Magistrate erred in taking into consideration while assessing sentence offences which were pending against the accuseds without any request from the accused's to that effect. That in consequence the sentences of three year impresonment which were imposed on the accused persons who readily pleaded guilty and who were first offenders were too harsh.

The file was placed before me. On perusal, I discovered that the three accuseds were charged with and convicted on their own pleas of guilty of stealing cattle contrary to sections 252 and 255 of the Penal Code Act. They were first offenders. But in assessing sentences, the trial Magistrate took into consideration offences which were pending against A1 and A2. He then sentenced each of the accused persons to three years imprisonment.

I am in agreement with the Magistrate Grade \$ that it was wrong for the trial Magistrate to have taken into consideration in assessing sentences offences of which the Accuseds had not been convicted. Such offences can only be taken into consideration in assessing sentence when an accused

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specifically requests for it. In such ^a case, the request must be recorded in the proceedings. (see section 13l(2)(b) of the MCA'70).

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In the instant case, the record of the proceedings does not reveal that such ^a request was made by the accuseds. It is clear that if the trial Magistrate had not taken those offences into consideration the sentences he would have imposed on the accused's as first offenders'who pleaded readily guilty thus saving the court'^s time, would have been certainly less. I then resolved to nake a'Bevision Order.

When the file was sent.to the D. P. P for his view, Miss Nandaula Betty a State Attorney writing for the D. P. P. in her letter ref; 6/4/2 of 6th November 1990, was of the same view that the trial Magistrate erred in taking into consideration in assessing sentences offences of which the accuseds had not been convicted. That in consequence.the sentences imposed were two harsh for the accused who were first offenders who readily pleaded guilty. She did not wish to be heard in the event of a Revision Order being made.

Clearly the trial Magistrate was wrong in lav; when he,took into consideration in assessing sentences offences of which the accuseds were not convicted whex. the .accused did not request for such consideration. In doing so he violated section 1.3l(2)(b) of the MCA'⁷⁰ • . Had.he not taken into consideration those offences of which the accuseds were not convicted, the trial Magistrate would have most likely to have imposed on the accused persons lesser sentences than those imposed particularly since the accused persons readily pleaded guilty thus saving the court'^s tine and were also first offenders.

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In the circumstances, those sentences of three years imprisonment are so harsh as to amount to injustice to tie accused\* They are accordingly set aside\* In their places, would be substituted imprison sente\* nces which would enable their immediate release from Prison unless they are being held for some other reasons\*

G-a Ma Okello

JUDGE 25/2/91

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