Kigozi v Uganda (Criminal Appeal 70 of 1991) [1991] UGHC 43 (17 December 1991)

The Hon. Mr. Justice P. R. Souiade

THE REPUBLIC OF UGANDA

VIOJBELS,

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IN PHE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

CRIMINAL APPEAL NO. 70 OF 1991

(Original Criminal Case No. NPT5669 OF 1991 IN THE

MAGISTRATE'S COURT AT BUGANDA ROAD)

::::::::::::::::::::::::::::::::: APPELLANT NAPHAN KIGOZI

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$UGANDA \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots \qquad \vdots$ BEFORE: The Honourable Mrs. Ag. Justice M. Kireju JUDGEMEN! courts to hand down fine which or

This is an appeal from origanal criminal case No. NPT66/ 9/91 of the Chief Magistrate court Buganda Road fraffic Court before his Worship E. Puryamubona Magistrate Grade I. The appellant Natham Kigozi, was convicted on his own plea of guilty to the charge of reckless driving contrary to vin section $118(1)(c)$ , section $138(2)(b)$ and section $65(1)(a)$ of Existhe fraffic and Roedraafety Act 38 of 1970: He was sentenced to a term of 6 months imprisonment, his driving permit was suspended for 3 years and he was disqualified from obtaining another permit for 3 years. He is now appealing against the $\mathfrak{S} \mathfrak{L}^*$ weigh as as of fourthat dealersh sentence.

The grounds of appeal are the following:-

(1) That the custodial sentence which was passed was excessive given the circumstances of the case. viinuau siya And that the periods of sumpension of the driving very list of permit were also excessive.

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(2) That there were special grounds which the court A. I. X-M. E. N -17 should have used to reduce the mandatory gentence. Mr. Kiboijam learned counsel for applicant in support of the appeal submitted that under section 138(2)(b), the court has a discretion to impose a sentence less than the minimum provided under the section. He contended that the trial Magistrate should have imposed a lesser sentence in form of 'a fine, that in cases of this nature it was common for trial courts to hand down fine sentences. He submitted that in the accident no body was injured, the applicant readily cooperated with the police, he was a first offender and the vehicles $\mathfrak{t}_2 = 3$ were not exensively damaged. That he did not believe the report that the vehicles were extensively damaged, that it is difficult to imagine that if they were so expensively damaged, they could have been driven to the police station. From the said facts he submitted that the trial Magistrate should fine but that he went on to impose a deterrent sentence without considering the case itself. Counsel referred to me the book entiled A Guide to Criminal Procedure in Uganda by Justice Odoki 1990 ED page 460, in support of a fine sensence the paragraph referred to is as follows;-

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" Fines are generally used in cases where a deterrent sentence is considered necessary but the offence is not sufficiently grave to justify a sencence of imprisonment usually because the offence is not particulary serious or occasinally because there are particularly strong mitiagating factors "

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Last paragraph on the same page cited aboye reads;-

saccour in In minor offences which are misdemanours or the cast regulatory offences, where both imprisonment and $\mathfrak{S}(\mathbb{C})$ a fine are provided for, the general principle is that a fine should normally be appropriate that a encm! sencence, unless there are circu stances aggravating the offence, e.g. where the accused causes death by dangerous or reckless driving."

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He submitted that there were no aggravating circumstances and that the damage to the vehicle was not excensive. He that the mitigating factors were that the appellant contended was a first offender, pleaded guilty, he depends on driving as his means of livelihood. Counsel also wondered whether $\mathcal{G} \leftarrow \mathcal{G} \cup \mathcal{G} \cup \mathcal{G}$ the provisions of section 131(2) MCA on sendencing were complied with by the magistrate. He submitted that in view of what he has stated above a custodial sentence should be substituted with a fine.

5. 177 h 983 b In respect of the second ground of appeal he submitted that there were special reasons which the court could have used to impose a lesser sentence. He submitted that the term special reasons has been defined in the case of Uganda Vs. Jenaro Ongom Langol Crim. Rev. No.111/74 HCMB Sept./1975/ page 279. In which Justice Ssekandi as he then was defined 'Special reasons' to include, whether the appellant was a first offender, whether the accident resulted in any serious damage to the vehicles and whether no person was injured and whether he depended on his driving as his sole source of income with which to support his family and dependants.

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Counsel submitted that the duty to plead special reasons falls on the appellant, but that in this case

since he was not represented by counsel, court should have assisted him in enlisting information regarding special reasons and that since this was not done it should be considered as a fact by this court in favour of the appellant. He invited court to apply the above special reasons and impose a lesser sentence and also use the same reasons to give a lesser period of disqualification under S. 65 of TRS. Act.

Mr: Ojok, learned counsel for the state submitted that he was in support of both conviction and sentence. That the trial Magistrate had full facus against the appellant and properly exercised his discretion in imposing the sentence He submitted that the minimum period of 6 months imposed by the Magistrate was far too below the scale and that it cannot be said to be harsh. He also supported the disqualification from driving for 3 years on the ground that it was madatory. He invited the court not to go much in the evidence on record, since the appeal was only on sentence. On the issue of special reasons and the case of Ongom cited above he submitted that special reasons should apply to each particular case. He contended that the trial magistrace in this case had considered all the facts in mitigation against the appellant and the circumstances of the case after which he found it rucessart that a deterrent sentence be imposed because there were already instances of the same offence as comitted by the appellant. He submitted that the sentence passed by the trial magistrate iid not occassion any miscarriage of justice, commenting on

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the rider to the section, he submitted that all that was considered by the trial magistrate. On the issue that driving was the only source of livelihood, he submitted that counsel for the applicant was not in a position to testfy on this that it should have been in a form of an affidavit in support of the application. He prayed that ar and the polygons the appeal be dismissed.

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and the abiance of I have gone through the memoradum of appeal and the grounds of appeal as presented by counsel for the appellant. I have perused the record of the trial court and carefully noted the submissions by both counsels and my task now is to decide on the main two grounds of appeal.

Before I handle the grounds of appeal, I shall first decide on the issue whether the trial magistrate complied with the provisions of section 131(2) of M. C. A which provides that the court, before passing sentence may take such inquiries as it thinks fit in order to inform itself as to the sentence proper to be passed.

From the court proceedings under allectus, the appellant prayed for leniency. And thereafter the magistrate pronounced his sentence where he stated:s on well

> " cases of causing accidents attroad tolls stations by government drivers are becoming too prevalent and call for a deterrent sentence The court has considered the fact that the accused has readily pleaded guilty to the offence and as no records of previous convictions has been given the court takes him as a first

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offender. All these factors have been I find that the accused deserves considered. " a custodial sentence which will reform him "

It is clear from the extract that the magistrate. addressed himself to some of the mitigating factors in favour of the appellant and considered them before imposing the sentence. The provisions of the cited section are not madatory, it is the duty of the court to decide whether it needs to make such inquiries

or not. If there are enough factors on the record which the court can use to pronounce a fair sentence, then in my opinion it need not make any inquiries. Whe only other special reason which has been addeda to the is

by counsel for the appellant is that he derives of his livelihood from driving. I am of the opinion? A that this factor must have been considered by theo phiosp. magistrate, in view of the fact that he knew, that the it appellant was a government driver and almost all government drivers work full time and they do not engage in other work.

I therefore hold that the provisions of section 131(2) of Magistrate's court Act were complied with.

Now considering the first ground of appeal that the custodial sentence was excessive, and that the period of suspension of the driving permit were also excessive, that the Magistrage should have imposed a fine. It is now common that when sentencing the court must consider whether a deterrent or rehabilitative sentence should be imposed. Javis. $...17.$

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Having decided that a deterrent sentence is appropriate to punish the offender, than it has to consider whether the sentence should be a term of imprisonment or a fine.

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I have noted the referrences referred to me in Justice Odoki's book cited above, about fines, that normally fines are imposed in minor offences unless there are circumstances aggravating the offence. In the same book it is stated on Page 157, that course before imposing a prison sentence on the first offenders must do so in certain circumstances namely where the offence is particulary grave or aggravated or prevalent in the area. In this case the magistrate considered. all the facts, took into consideration the facts, to the same

that drivers of government vehicles are too reckless and have onded up ruining government vehicles at the expense of the tax payer. He then decided that although the appellant was a first offender he still needed a custodial sentence which would reform him. I am received of the opinion that the magistrage rightly considered all Mitigating factors and decided to impose a minimum sensence of 6 monchs. in all a string about an

It would have been dificult for the magistrate to impose a mimimum fine of Shs.12/- or a maximum fine of Sh.50/-. Until these fines are amended to correspond with the present currency situation in the country, imprisonment sentences will continue to be passed as the fines serve on useful purpose and the option of prison sequence is still available.

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It is important to note that accidents have become so rumpant on our roals that deterrent sentences have $\Gamma_{1,\Omega_1\cup S}$ become necessary to deter other drivers who may commit the $\mathcal{H}(\mathcal{A}, \mathcal{B}, \mathcal{A})$ same offence. I was referred to the case of Ongom which was decided in 1975, that case can be distinguished from the instantc case, in that since that case was deciled.

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things on our roals have changed, there are more 1 84 0015130, UNI 6081W cars, accidents have increased and therefore courts cannot sit there as spectators, they have to take into consideration environmental changes, and act accordingly, therefore the prison sentence was justified in this case as a deterrent measure. milo idev

さんだきぎるい On the second issue whether there were special reasons which the court could have used to impose a lesser sentence, I have looked at the reasons advanced by the th 463 10 trial magistrate when passing out his sentence, he r anisepiulm considered that the appellant was a first offender, and that he pleaded guilty to the charge and in his opinion he did not find any special reasons required under section 138(2), and he went on to pass the minimum sentence, of 6 un un de la months imprisonment; and disqualification for 3 years under section $65(1)(a)$ . ter lin lange - 18 categorisance 400 impartabledoa

However, in the case of Uganda Vs. Mayombwe 1973 EA 566. it was held by Justice Saied that before disqualifying

an accused, the court must ask him whether he wished to make a prea what there are special reasons why disqualifications should not be ordered: As already noted the disqualification is madatory once you are convicted under section 118 of It is therefore important that before this PRS Act. rather heavy sendence is passed the appellant should be given a chance to plead special reansons.

In this case it is apparent on the face of the record that the appellan, was not assisted to pleadespecial reasons, this matter was overlooked by the trial magistrate. In the interest of justice the disqualification cannot be upheld, for the special reason that proper procedure was not followed.

In reaching my decision which follows, I have been assis ed by the following decided cases.

- (1) Wanjema Vs. Republic /19717 EA 493 - R. W. Eneriko Sempala 7193673 EACA 23<br>John Mukalazi Vs. Uganda Crim. App. 40/91 $\begin{pmatrix} 2 \\ 3 \end{pmatrix}$

(4) Serunjogi Buluhame Vs. Uganda Crim. App. 53/91 Although the appellant was a first affender and did not waste court time I still believe that the magistrate did not wrongly exercise his discretion in ordering a sentence of 6 months on this charge and I shall not interfare with the award. The appeal on this ground is accordingly dismissed.

Because the trial magistrate failed to address himself to the issue of special reasons under section $65(1)(a)$ as

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$\overline{3,1,5}$ of tradition $\overline{3}$ there is no evidence to that effect on record, the disqualification under section 65(1) dispset aside. Equine only are the in $\mathcal{M} = \mathcal{M} \oplus \mathcal{M} \oplus \mathcal{M} \oplus \mathcal{M}$ the Bank of the sam sicilities<br>The approval

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