Akol v Uganda (Criminal Revision 1 of 2023) [2023] UGHCCRD 29 (6 June 2023)

The Republic of Uganda

## In The High Court of Uganda Holden at Soroti

Criminal Revision Application No. 0001 of 2023

(Arising from Criminal Case No.2O2 of 2022 of the Chief Magistrates Court of Kumi Holden at Bukedea)

Akol Mary Kevin ::::::::::::::::::::::::::::::::::::

### Versus

Uganda ::::::::::::::::::::::::::::::::::: 15

## Before: Hon. Justice Dr Henry Peter Adonyo

### Ruling.

This is an application by way of Notice of Motion under section 48 & 50 of the 20 Criminal Procedure Code Act Cap 116 and section 33 of the Judicature Act for orders that this court calls for and examines the record of proceedings vide criminal case No. 202 of 2022 at the Chief Magistrates Court of Kumi Holden at Bukedea and this court alters or revises the sentence issued by H/w Kimono Juliana of the Chief Magistrates Court of Kumi Holden at Bukedea. 25

The grounds of this application are briefly that the applicant was charged with the offence of theft C/s 254 & 261 of the Penal Code Act and on the 12<sup>th</sup> day of

$\mathsf{S}$

August 2022 he pleaded guilty to the offence, was convicted and sentenced to $\mathsf{S}$ one (1) year imprisonment. That the applicant at the time of his conviction and sentence was a young offender of only 20 years and a school going student of Senior 3 at Malera Secondary School whose future is now in jeopardy. That there is an error apparent on the face of the record as the sentence is excessive since court did not consider his status of being a school going student. 10

The respondent was served with this application as evidenced by the affidavit of service on record however no response was made.

The applicant was represented by M/s Ewatu & Co. Advocates who submitted that the applicant at the time of his sentencing was only 20 years and a school

going student whose future is in jeopardy and as of now he missed his third term 15 examinations that were done in November 2022 which exams would get him promoted to Senior 4. Counsel contended that the one-year sentence was excessive and issued in error since the applicant was a school going student who deserved mercy having asked for forgiveness. Counsel prayed that the sentence 20 be altered and or revered and the applicant be set free to allow him pursue his education.

Section 48 of the Criminal Procedure Code Act provides that the;

The High Court may call for and examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the $-25$ correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the magistrate's court.

Section 50 of the CPCA provides for the power of the High Court on revision. $50(1)$ provides thus;

- In the case of any proceedings in a magistrate's court the record of which has been $\mathsf{S}$ called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court $may-$ - (b) in the case of any other order, other than an order of acquittal, alter or reverse 10 the order.

Section 17 of Judicature Act provides that

(1) The High Court shall exercise general powers of supervision over magistrates courts.

(2) With regard to its own procedures and those of the Magistrates' Courts, the 15 High Court shall exercise its inherent powers—

(a)to prevent abuse of process of the court by curtailing delays, in trials and delivery of judgement including the power to limit and discontinue delayed prosecutions;

(b)to make orders for expeditious trials; 20

(c)to ensure that substantive justice shall be administered without undue regard to technicalities.

The proceedings in Criminal Case No. 202 of 2022 indicate that the applicant on the 11/08/2022 pleaded guilty to theft of his mother's new laptop bag and was thereafter convicted on his own plea.

The state attorney while giving the aggravating factors stated that the though the convict was a first time offender, theft is prevalent in Bukedea, that the applicant had stolen from his mother and had also failed to go to school. The state attorney

further stated that the applicant's parents were in his office and were fed up, $\mathsf{S}$ they prayed that the applicant is kept away for one year. The trial magistrate during sentencing considered this factors and found that the applicant had declined to go to school despite his parents providing for him. She noted that the applicant's parents wanted him kept away so that he could reform and because of these factors she sentenced the applicant to one year for the purpose of 10 rehabilitation.

From the above it is clear that the applicant's parents specifically, the mother who was victim of his theft requested that the applicant be kept away for the sake of his rehabilitation.

Through the state attorney it was also made known that the applicant had 15 declined to go to school despite his parents providing for him.

The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) **Directions, 2013** give guidance on sentencing for various offences:

Paragraph 6 (d) provides that every court shall when sentencing an offender take into account-

(d) any information provided to the court concerning the effect of the offence on the victim or the community, including victim impact statement or community impact statement.

Paragraph $9(3)$ provides that

(3) The court shall before imposing a custodial sentence consider—

(a) whether the purpose of sentencing cannot be achieved by a sentence other than imprisonment;

(b) the values, norms and aspirations of the people within the community;

(c) the character and antecedents of the offender;

(d) the circumstances and nature of the crime committed;

(e) the ruthlessness with which the offender committed the offence;

(f) the health and mental state of the offender;

(g) previous conviction record;

(h) the age of the offender;

$\mathsf{S}$

(i) remorsefulness or conduct of the offender;

(i) whether the offender may be a danger to the community;

(k) views of the victim's family or community; or

(I) any other matter that court considers relevant.

(5) The court shall when sentencing a first time offender consider that 15 imprisonment is not a desirable sentence for a minor offence.

Paragraph 45 and Part VII of the 3<sup>rd</sup> Schedule provides for the sentencing range for theft and theft related offences.

Part VII, item 2 provides for the sentencing range for theft to be from one year

up to ten years with the starting point at 5 years and the maximum at 10 years. 20

Paragraph 45(2) requires the court into account the factors in paragraphs 46, 47 and 48 determine the sentence in accordance with the sentencing range.

Paragraph 46 provides for considerations in determining a sentence for theft and theft related offences. It provides thus:

In considering a sentence for theft or a theft related offence, the court shall take 25 into account the following factors—

- (a) the value of the property stolen; $\mathsf{S}$ - (b) prevalence of the offence in the community; - (c) the circumstances surrounding the commission of the offence; - (d) the impact of the offence on the victim and the community; - (e) any breach of trust where the offender is an employee, relative, neighbour or - a person in a position of trust; 10 - (f) any aggravating or mitigating factors; - (g) antecedents of the offender; - (h) plea of guilty by the offender; - (i) any reparation offered; - (j) the operation of restorative justice processes; or 15

(k) any other factor as the court may consider relevant.

In the instant case the trial court got information from the state attorney who had been interacting with the applicant's parents that he had failed to go to school and the parents are fed up.

- The applicant's mother was the victim of his crime and her say in his sentencing 20 is vital seeing us she has to bear the burden of taking care of him after his release. - From that, I would find that the sentencing by the trial magistrate was not excessive and was well within the guidelines on sentencing as stated above.

Furthermore, it was already established in the trial court that the applicant had

failed to go to school despite being provided for and as such he cannot use school 25 as a reason to lessen his sentence.

Consequently, I would find that this application lacks merits and would thus be $\mathsf{S}$ accordingly dismissed with no order as to costs.

I so order.

$10$

Hon. Justice Dr Henry Peter Adonyo

Judge

# $6^{\text{th}}$ June 2023