Naigaga v Uganda (Criminal Appeal No. 12/94) [1994] UGHCCRD 5 (7 September 1994)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA

r ici such bebinder CRIMINAL A PPEAL NO. 12/94 nd To northern off (ORIGINAL IGANGA CRIMINAL CASE NO. MJ. 212/94)

The Hon Justice Tsekooko

NAIGAGA IRENE : : : : : : : : : : : : : : : : : : meetro esw that Is. VERSUS noqu be am constner end tant trata $UGANDA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :$ RESPONDENT BEFORE: THE HONOURABLE JUSTICE C. M. KATO CON It of within bebasing. the amount involved was only $70,000/-$ and the appellant appeared. repentant. It would appear the learnt what magistrate did not en os enclo pri bad $\cdot \mathbf{J}^T C \dot{\mathbf{U}}^{\text{OAP}} \mathbf{D}$ ad $\mathbf{E}^{\text{OB}} \mathbf{H}^{\text{OB}} \mathbf{E}^{\text{OB}} \mathbf{N}^{\text{OD}} \mathbf{T}^{\text{II}}$ . In the air examples $\cdot$ . would possibly have imposed a lessor scattence than what is imposed.

This is an appeal by the appellant Irene Naigaga against the office sentence imposed upon her by the Grade I Magistrate at Iganga. The appellant was charged with the offence of obtaining goods by false retences contrary to section 289 of the Penal Code Act. She pleaded guilty to the offence and she was sentenced to 12 months imprisonment.

She gave five grounds of appeal which may be summarized into only one ground which is that the sentence of 12 months was excessive.

At the hearing of the appeal the appellant was represented by Mr. Magelani Olubwe from Legal Aid Project (LAP) and the respondent was represented by the Senior State Attorney Mr. Vincent Okwanga. Mr. Olubwe submitted that the sentence was not only excessive but was also illegal because the appellant did not plead guilty to the offence and if at all she did so it was because she had been forced by the rosecutor to do so. On his part Mr. Okwanga argued that the sentence was not excessive and the plea was properly recorded.

Starting with the first point raised by Mr. Olubwe I would say that the plea by the appellant was materially properly recorded although when the appellant was asked to plead to the charge her words were not recorded as stipulated under the provisions of section 122(2) of the Magistrates Courts' Act which requires the exact words to be recorded. That irregularity was however cured by the appellant's acceptance of the facts of the case as being correct.

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## AUNITU LA

The question of the plea having been illegally recorded does not arise. (OSICINAL IGANCA OSIMINAL CASH NO. MJ. 212/94)

As for the real ground of this appeal I would say from the very start that the sentence meted upon the appellant was excessive considering the fact that the appellant was a first offender, she had pleaded guilty to the offence thus saving court's time and expense. the amount involved was only 70,000/- and the appellant appeared repentant. It would appear the learnt trial magistrate did not address his mind to all these metigating factors, had he done so he would possibly have imposed a lesser sentence than what he imposed. The learned magistrate's statement that this kind of crime is prevalent in the area was speculative as there was no evidence before him to the establish that the crime was common in that part of the country.

Considering all the circumstances of this case I do allow this appeal and set aside the sentence of 12 months imprisonment imposed upon the appellant and I replace that sentence with a sentence of 3 months imprisonment. DEDILUOIR So I order. one ground which is that bie son

af betweerqer asw fm. Lieggs end At the houring C. M. KATO id Froject (LAP) and the respondent Mr. Magelant Olohwe JUDGE , seaswill droomly . The yemicta o rd tepresentes $7/9/1994$ sentence was not only excessive int was wit bertinder owderlo . TM sensite off or within basis for bid Justianus off center is the efforce and if at all ane did so it was because she had been forced by the cometens on to to this part wir. Okwanga argued that the sentence .bebroost virogeng naw reig sht hus svisteens for an

Starting with this paint raised by Mr. Clubwe I would say believer vinegory vilabrotes new cusileges and ye sele and tant abrow the appeals of of beeld of bedea any frelleggs and sell myredia (2)SST motion is anotherough and rebun bets limits as beindoor demonster (2)(2) of the Harleir who Courts' Act which resulter the exact words to be recorded. The irrelative was however cured by the appellant's acception of the facts of the case as both, correct,

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