[1995] UGHC 55
The trial magistrate's sentence was illegal because it exceeded the statutory maximum fine and improperly allowed the accused to choose between imprisonment and a fine. Section 113(1)(a) of the TRSA 1970 prescribes a maximum fine of 5,000 shillings or imprisonment not exceeding two years, or both, at the court's...
Source-derived case information.
- Citation
- [1995] UGHC 55
- Parties
- Applicant: Uganda; Respondent: Ben Selcatulca
- Court
- High Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- Criminal Revision 10 of 1995
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- sentence set aside and substituted; excess fine ordered refunded
- Judges
- GM OKELLO, J
- Legal Topics
- Sentencing Illegality, Magistrate Powers, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda
Applicant
Ben Selcatulca
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was in accordance with section 113(1)(a) of the TRSA 1970.
- 2 Whether the accused could be given the option to choose between imprisonment and a fine exceeding the statutory maximum.
Ratio Decidendi
The trial magistrate's sentence was illegal because it exceeded the statutory maximum fine and improperly allowed the accused to choose between imprisonment and a fine. Section 113(1)(a) of the TRSA 1970 prescribes a maximum fine of 5,000 shillings or imprisonment not exceeding two years, or both, at the court's discretion. The magistrate imposed a fine of 75,000 shillings or six months imprisonment at the accused's option, which is not permitted by law. The High Court set aside the illegal sentence and substituted it with a lawful sentence: a fine of 5,000 shillings or, in default, one month imprisonment. The excess fine paid by the accused was ordered to be refunded.
Court Disposition
sentence set aside and substituted; excess fine ordered refunded
Orders
- The sentence imposed by the trial magistrate is set aside.
- The accused is sentenced to a fine of 5,000 shillings or, in default, to serve one month imprisonment.
Full Case Text
Judgment text and source record
13 paragraphs
THE REPUBLIC OP UGANDA IN THE HIGH COURT OP UGANDA - AT GULU CRIMINAL REVISION NO. 10/95
(Original Criminal Case No. TRIG 290/95) Uganda ..................versus ..................... Ben Selcatulca. Before: The Honourable Mr. Justice G. M. Okello.
ORDER
The accused was convicted on his own plea by a Magistrate Grade I Gulu of using a motor vehicle for the carriage of Passengers for hire or reward without a licence contrary to section 113 (1) (a) of the TRSA '70. He was then sentenced to six months imprisonment or to a fine of shs 75,000/= in lieu thereof.
That order of sentence is contrary to what the section which created the offence provided. That section provided for a fine not exceeding 5,OOo/= or to a term of imprisonment not exceeding <sup>2</sup> years or to both. That section thus gives to the court power to choose the penalty to impose from those prescribed by the section. The magistrate could choose to impose a fine which must not exceed 5,000/= or to impose a term of imprisomentt which should also not exceed two years or to impose both a fine and imprisonment all of which must be within the range . prescribed by that section.
In the instant case, the -trial magistrate by his order gave to the accused power to choose whether to serve a term of imprisonment of *<sup>6</sup>* months or to pay a fine of 75,000/=. He chose to pay the fine. This was contrary to the meaning of the section which created the offence. The section did not give power to an accused to choose his sentence.
The Resident Senior State Attorney by his letter ref <sup>2</sup> RSA/N/GK/12/PAP dated 15/12/95 agreed that the order of sentence made by the trial magistrate was illegal for non compliance
.../2..
with the section which erected the offence. He did not wish to "be heard in the event of a revision order being made.
As already pointed out here earlier, that order of sentence imposed by the trial magistrate is illegal and can not be allowed to stand. It is set aside and in its place it is substituted the following order
- (1) Sentence Accused fined shs 5,000/= or in default to serve <sup>1</sup> month imprisonment. - (2) Excess shs 70,000/= paid by the accused as a result of the order made by the magistrate be refunded to the accused.
0- GJ-L 'okello
Resident Judge Gulu. 19/12/95.