Court name
HC: Criminal Division (Uganda)
Judgment date
14 September 2017

Gwolo Jackson v Uganda (Criminal Appeal-2017/14) [2017] UGHCCRD 118 (14 September 2017);

Cite this case
[2017] UGHCCRD 118
Coram
Mubiru, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

CRIMINAL APPEAL No. 0014 OF 2017

(Arising from the Grade One Magistrate’s Court at Koboko in Crim. Case No. 069 of 2017)

 

GWOLO JACKSON alias MUGAGA       ….….………….…..…………….… APPELLANT

 

  1.  

 

UGANDA                  …….……………….…….….….….…..………………  RESPONDENT

 

Before: Hon Justice Stephen Mubiru.

 

JUDGMENT

 

In the court below, the appellant was charged with one count of obtaining goods by false pretence C/s 305 of The Penal Code Act. It was alleged that during the month of October 2016 at Dikasinga village in Koboko District, with intent to defraud, he obtained two Toyota Premio motor vehicles, Registration Nos. CE 505 AN and CE 583 AK from a one Bako Joyce, falsely pretending that he would sell them of and bring her back the proceeds, whereas not. 

 

The prosecution called three witnesses. The complainant, Bako Joyce testified as P.W.1. She stated that she and the appellant were both clearing agents before operating at Oraba. Following two previous successful sales of motor vehicles to customers in the DRC, the appellant approached her sometime in October 2016 and proposed that she gives him two other vehicles for sale and he would bring back the USD 9000 as proceeds within three days. When the days elapsed, she tried to call his number and it was off. She was able to get in touch with him after a month whereupon he told her he had not sold off the vehicles yet.   She asked him to return the vehicles to her. He returned to Koboko on 24th December without the vehicles but promised to bring them back on his return within two days. He did not communicate again until the end of December when the complainant called her and he responded demanding of shs. 150,000/= to process vehicle permits which money she sent him. After several promises to return the vehicles he later admitted having sold off one of the vehicles and undertook in writing to pay her the proceeds on 17th January 2017. He never complied hence the report to the police.

P.W.2. Mr. Metaloro Jacob who was present when the appellant took the two vehicles and when he signed the written undertaking to pay the proceeds of sale of one of the vehicles, testified that the appellant neither returned any of the vehicles nor accounted for the proceeds. P.W.3. Mr. Ratib Ismail alias Data testified that he was present at a meeting where the appellant admitted having sold off one of the vehicles at a price of US D 3,700 and agreed in writing to pay the complainant the proceeds. The appellant neither returned any of the vehicles nor accounted for the proceeds despite repeated promises to that effect.

 

In his defence, the appellant testified that he had been involved in a couple of dealings with the complainant that ended successfully. On this occasion, the complainant gave him two unregistered motor vehicles without log books which he refused to take and that annoyed the complainant. Although he had pleaded guilty to an earlier charge where he had an intention to steal, on this occasion he had no intention of stealing from the complainant in this case. He indicated that he was interested in settling the matter. 

 

In his judgment, the trial magistrate found the charge against the appellant had been proved beyond reasonable doubt. The appellant was convicted and sentenced to six years' imprisonment. Being dissatisfied with that decision, he appeals against both conviction and sentence on the following grounds, namely;

  1. The learned trial magistrate erred in law in convicting the appellant when the evidence on record discloses no offence / crime committed.

 

  1. The learned trial magistrate erred in law and fact when he passed a harsh sentence.

 

Submitting in support of the appeal, counsel for the appellant Mr. Mohammed Buga Nasur argued that the issue to be determined is whether the facts disclose a criminal offence or a civil suit. At page 2 of the record of proceedings P.W.1 agrees that the appellant is a broker and she had given her two Premio Toyota cars to be sold in Congo at USD 4,500 each. The appellant took long to pay back the money despite several calls by the appellant and they finally entered into an agreement for the appellant to pay the money which is P. Ex. 1. He defaulted on that agreement and the complainant reported the matter to the police. The appellant was arrested, tried, convicted and sentenced to six years imprisonment and refund of US D 9,000 for the cars. The facts create an agency contract between the appellant and the complainant which the appellant breached. He sold one of the vehicles but did not account for the proceeds. The appropriate remedy was a civil claim. After he defaulted on the agreement, the matter was reported to the police instead. The intention to defraud was lacking. The contract and the surrounding circumstances don't reveal criminal intent. The complainant knew the appellant before, they worked together in the same company, agreed that the car be given to the appellant on the instruction of the complainant to be sold.

 

As regards the second ground, he submitted that the sentence is harsh and excessive. Since section 305 of The Penal Code Act provides for a maximum of five years, it was illegal. There was no proof of the allegations made by the magistrate of habitual offending. The mitigating factors are that he was remorseful and prayed for lenience. He has siblings under his care. One year imprisonment would be appropriate to enable him to look for other ways to pay. The sentencing guidelines discourage imprisonment. He can be tested by imposing a term that requires him to pay while in prison and he can be reviewed after some time.

 

In reply, the Senior Resident State Attorney, Ms. Adubango Harriet argued that The intention to defraud was proved. The appellant failed to pay as per the promise. His number was off. After a month she asked him to return the vehicles which he failed to do. The appellant instead asked for some money for vehicle permits in Congo. He asked for shs. 150,000/= which she sent. Later he told her he had sold one vehicles but failed to account of the proceeds. The agreement of January 2017 was an attempt to remedy the situation. He failed even after the period agreed upon. There was an intention to defraud her. He does not explain why he could not return the goods or the proceeds. The presumption then is that he had no intention of honouring the transaction. 

 

She conceded that the sentence was illegal because the maximum is five years. However the fact that the circumstance of the offence; the conduct of the appellant, the sum involved and the fact that he had a previous conviction, the custodial sentence would be justified because he was not a first offender and is not afraid of defrauding people of such large sums of money and he was involved in cross-border business. He was never willing to pay. It had to take the law to subdue him. The maximum would be appropriate. The order of refund is correct and appropriate. He does not honour agreements and a variation is uncalled for.

 

This being a first appellate court, it is under a duty to reappraise the evidence, subject it to an exhaustive scrutiny and draw its own inferences of fact, to facilitate its coming to its own independent conclusion, as to whether or not, the decision of the trial court can be sustained (see Bogere Moses v. Uganda S. C. Criminal Appeal No.1 of 1997 and Kifamunte Henry v. Uganda, S. C. Criminal Appeal No.10 of 1997, where it was held that: “the first appellate Court has a duty to review the evidence and reconsider the materials before the trial judge. The appellate Court must then make up its own mind, not disregarding the judgment appealed against, but carefully weighing and considering it”.

 

An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination, (see Pandya v. Republic [1957] EA. 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion (see Shantilal M. Ruwala v. R. [1957] EA. 570).  It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (see Peters v. Sunday Post [1958] E.A 424).

 

The prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift to the accused persons and the accused are only convicted on the strength of the prosecution case and not because of weaknesses in their defence, (See Ssekitoleko v. Uganda [1967] EA 531). By their plea of not guilty, the respondents put in issue each and every essential ingredient of the offences with which they were charged and the prosecution had the onus to prove all the ingredients beyond reasonable doubt. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused are innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

 

When interpreting any section of The Penal Code Act, section 1 must be considered and it stipulates that the Code shall be interpreted in accordance with The Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith. Section 32 (1) of The Larceny Act, 1916 a charge of obtaining goods by false pretences is in pari materia with section 305 of The Penal Code Act. Section 305 of The Penal Code Act is a simplified version of section 32 of The Larceny Act but does not define the expression. According to section 304 of The Penal Code Act, a false pretence is a false representation which may be made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true. However, considering that the wording and form of section 305 of The Penal Code Act and of section 32 of The Larceny Act are so nearly alike, English decisions and authorities on the construction of section 32 of The Larceny Act must be accorded great persuasive value in determining the correct construction of s. 305 of The Penal Code Act.

 

The essence of the offence of obtaining goods by false pretence is misrepresentation of a fact in order to acquire someone else’s property. A false pretence is a representation, either by words, conduct or otherwise, of a matter of fact either present or past, which representation is known to the accused to be false, and which is made with a fraudulent intent to induce the victim to act upon such representation. A material fact is one that would be important to the victim, but it does not have to be the only factor, in his or her decision-making process. The owner is induced by the pretences to give his or her consent. The offence connotes the existence of untruthful representations or deceit underlying an offender’s receipt of property. In Re: London and Clobe Finance Corporation Ltd (1903) 1 Ch 728 Buckley J held as follows: “a person acts with intention to deceive when he induces another to believe that a thing is true, which is false, and which the person practicing the deceit knows or believes to be false.”

When a person is charged with obtaining goods by false pretence, there must be some deceit spoken, written or acted to constitute a false pretence (See Regina v. Jones [1898] 1 Q.B. 119). The misrepresentation does not have to be made in an express statement; it may be implied from behaviour or other circumstances. It ordinarily means to deprive dishonestly a person of something which is his or hers or of something to which he or she is or would or might but for the perpetration of the fraud, be entitled. The intended means by which the purpose is to be achieved must be dishonest. It should involve a fraudulent misrepresentation such as is needed to constitute deceit; a misrepresentation as to the accused's intentions. Therefore in the instant case, to prove the charge against the appellant, the prosecution had to show that he by a deception had dishonestly obtained for himself some valuable property belonging to the complainant. It must be proved that the complainant had been induced to part with some property right and not merely possession of the goods.

 

To find the accused guilty of this offence, the state had to prove that:

  1. The accused knowingly and intentionally deceived the victim by false or fraudulent representation or pretence relating to a matter of fact, either past or present, but not in the future (see R v. Dent [1955] 2 All ER 806 and Green v. R (1949) 79 CLR 353);
  2. The accused did so intending to persuade the victim to let the accused take possession and ownership of the property (see R v. Seccombe (1917) 12 Cr App R 275; R v. Bentone (1918) 13 Cr App R 145 at page 150; R v. Weeks (1928) 20 Cr App R 188 at page 190; R v. Baker (1923) 17 Cr App R 190 at page 191; R v. Marck (1928) 21 Cr App R 65;  Yusuf Omari and another v Republic [1964] 1 EA 162 and R v. Smith (1931) 22 Cr App R 180);
  3. The victim let the accused have possession and ownership of the property because the victim relied on the representation or pretence (see R v. Laverty [1970] 3 All ER 432; (1970) 54 Cr App R 495); and
  4. When the accused obtained the property, he or she intended to deprive the victim of it permanently or to remove it from the victim's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property (see R. v. Schweller (1924), 18 Cr. App. Rep. 52; R. v. Kilham (1870) 22 L.T. 625; R v. Lurie (1951) 35 Cr App R 113; [1951] 2 All ER 704; R v. Ball (1951) 35 Cr App R 24; R v. Smith & others (1951) 34 Cr App R 168; [1951] 1 KB 53 and R v. Stones (1968) 52 Cr App R 36).

 

It is common ground in this appeal that it is on basis of a representation  made by the appellant that the complainant delivered her two vehicles to the appellant and that the appellant thereby acquired possession and a power of sale (akin to ownership) in the name and on behalf of the owner. What is contested is the accusation that by that representation the appellant knowingly and intentionally deceived the complainant in persuading her to let him take possession and "ownership" of the vehicles with an intention to deprive her permanently of those two vehicles and their proceeds.

 

In R v. Sullivan (1945) 30 Cr App R 132 Humphreys J, delivering the judgment of the Court, stated at pages 134 – 136:

In order that a person may be convicted of that offence [i.e. "false pretences"] it has been said hundreds of times that it is necessary for the prosecution to prove to the satisfaction of the jury that there was some misstatement which in law amounts to a pretence, that is, a misstatement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money, and that the proceeding on the part of the accused person was fraudulent. That is the only meaning to be applied to the words "with intent to defraud". […]

 

It is, we think, undoubtedly good law that the question of inducement acting upon the mind of the person who may be described as the prosecutor is not a matter which can only be proved by the direct evidence of the witness. It can be, and very often is, proved by the witness being asked some question which brings the answer "I believed that statement and that is why I parted with my money"; but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to been defrauded parting with his money, and that is the false pretence, if it was a false pretence.

 

To support a conviction for obtaining property by false pretences, it had to be shown that the appellant made a false pretence or representation with intent to defraud the complainant of her two vehicles, and that the complainant was in fact defrauded. The false pretence or representation must have materially influenced the complainant to part with both title and possession her two vehicles.

 

It is the requirement of the law that the pertinent false pretence should be specified in the charge (see R v. Thomas (1931) 23 Cr App R 21). In the instant case, the particulars of the offence as stated in the charge sheet specify the false pretence as "pretending that he would sell [the vehicles] off and bring [the complainant] back the proceeds, whereas not." This constitutes the deceit and to deceive is to induce another to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To deceive is by falsehood to induce a state of mind while to defraud is by deceit to induce a course of action (see In re London and Globe Finance Co. [1903] 1 Ch. 728). A false pretence therefore is constituted by defrauding another of his or her property by deceit.

 

In Director of Public Prosecutions v. Ray, [1974] AC 370, the respondent ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided that he would not pay. Biding his time until the waiter had gone out of the Restaurant to the kitchen he then ran out of the Restaurant. On behalf of the respondent it was contended during the trial that no deception had been practised. It was conceded that when the meal was ordered there was a representation by the respondent that he would pay but it was contended that once the meal was served there was no longer any representation but that there was merely an obligation to pay a debt: it was further argued that thereafter there was no deception because there was no obligation in the debtor to inform his creditor that payment was not to be made. The trial Court found that the respondent had practised a deception, and that, having made himself liable for a debt in respect of a meal, had by his deception dishonestly evaded payment. The Court accordingly found the case proved, convicted the respondent and fined him.

 

On appeal, the court decided that the transaction must be regarded in its entirety, beginning with the respondent entering the restaurant and ordering his meal and ending with his running out without paying. The different stages of the transaction are all linked and it would be quite unrealistic to treat them in isolation. The representation of the ability to pay existed at the moment of entering the restaurant and ordering for a meal and was continuing. It covered the whole transaction up to and including payment and had therefore to be considered as continuing and still active at the time of the change of mind. When that happened, with the respondent taking no step to bring the change to notice, he practised a deception just as real and just as dishonest as would have been the case if his intention all along had been to go out without paying. According to Lord Morris of Borth-y-Gest;

In the present case it is found as a fact that when the respondent ordered his meal he believed that he would be able to pay. One of his companions had agreed to lend him money. He therefore intended to pay. So far as the waiter was concerned the original implied representation made to him by the respondent must have been a continuing representation so long as he (the respondent) remained in the restaurant. There was nothing to alter the representation. Just as the waiter was led at the start to believe that he was dealing with a customer who by all that he did in the restaurant was indicating his intention to pay in the ordinary way, so the waiter was led to believe that that state of affairs continued. But the moment came when the respondent decided and therefore knew that he was not going to pay: but he also know that the waiter still thought that he was going to pay. By ordering his meal and by his conduct in assuming the role of an ordinary customer the respondent had previously shown that it was his intention to pay. By continuing in the same role and behaving just as before he was representing that his previous intention continued. That was a deception because his intention, unknown to the waiter, had become quite otherwise. The dishonest change of intention was not likely to produce the result that the waiter would be told of it. The essence of the deception was that the waiter should not know of it or be given any sort of clue that it (the change of intention) had come about. Had the waiter suspected that by a change of intention a secret exodus was being planned, it is obvious that he would have taken action to prevent its being achieved.

 

One of the principles in that case is that if the pretence relates to future actions, evidence of non-performance of the promise is not enough to establish the falsity of a promise. Devlin, J. in the case of R v. Dent, [1975] 2 All E.R. 806 at page 807 held that “to constitute a false pretence the false statement must be of an existing fact.” At page 808 he stated further that: “... a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law.” Law, J.A. in the case of Abdallah v. Republic, [1970] E.A. 657 at page 658 stated that a representation as to a future event cannot support a charge of obtaining money by false pretences. It was held in that case that the giving of a post-dated cheque is not a representation that there are sufficient funds to meet the cheque. It instead is a representation that when the cheque is presented on the future date shown on the cheque there will be funds to meet it. This is a representation as to a future event and cannot support a charge of obtaining money by false pretences unless the person who made the representation did so without any present intent to perform it or with a positive intent not to perform it.

 

In R. v. Jennison (1862) L & C 157 however, it was held that where a representation relates to the future but its material part relates to the present, this will constitute a false representation. In that case the accused, who had a wife living, told the complainant that he was unmarried, and, pretending that he intended to marry, induced her to give him eight pounds representing that he would furnish a house for living and would then marry her but after obtaining the money, he went away and did not return. It was contended that the money had been obtained by three representations; that he was unmarried; that he would furnish a house, and that he would marry the complainant; and that only the first representation made reference to an existing fact, while the others related to things to be done in the future. Thus whether the pretence is a false promise or a misrepresentation of fact, the accused's intent must be proved in both instances by something more than mere proof of non-performance or actual falsity. However, a promise which at the time it is made, the accused does not intend to keep, constitutes a criminal false representation of a material fact. The accused need not have planned the false representation in advance nor to have calculated to deceive the victim into transferring title by way of the false statement. If a representation which the accused himself knew to be false was made and if such representation was made with a dishonest intention and on such representation, the complainant was induced to part with the property, the offence is made out.

 

The other principle in the case of Director of Public Prosecutions v. Ray, [1974] AC 370 is that deception is proved even in circumstances when an accused person, who initially obtains the property honestly by representing his or her willingness to pay, later dishonestly decides to evade payment but fails to correct the original representation. The initial representation is falsified by the subsequent change of mind. Intention to defraud the victim occurs where the accused plans to unjustly acquire title to the victim's property by means of the untruth by way of a representation which must be false at the time the victim is about to pass not mere possession but title to the goods. The accused must have obtained title as well as possession of the property to be guilty of false pretences. When considering the pretence, the entire conduct of the accused is taken into account. If there is a  false pretence  made by the accused, and continuing at the time when title to the goods is relinquished, that will operate as evidence that the goods were obtained by that  false pretence (see R v. Greathead (1878) 14 Cox’s CC 108 and R v. Moreton (1913) 8 Cr App R 214). The  false pretence  is a continuing matter, it does not only exist when it is first made, it is a  false pretence  at all and any time on which it is acted upon. A false representation may therefore arise by omitting to provide information necessary to correct an impression that by a subsequent change of mind, has become false at the time it is acted upon.

 

It is argued by counsel for the appellant that in the instant case the representations involved demonstrate simple breach of contract rather than fraud. Indeed fraud requires proof of deception, which is absent from ordinary breach of contract, and it is the reason why common law does not permit a claim of fraud based solely on contractual breach. However, where it is proved that at the time of entering into the contract, be it oral or written, the accused knew and intended that he or she would not perform his or her future obligations thereunder, it ceases to be a case of mere breach of contract but is instead one of fraud. A representation is fraudulent only if made with the contemporaneous intent to defraud - i.e., the statement was knowingly or recklessly false and made with the intent to induce harmful reliance. It is the preconceived design of the accused, formed at or before the contract, not to perform his or her side of the bargain, that constitutes the fraudulent concealment which renders the representation fraudulent, and not an intent formed after the contract is executed. If the accused forms the intent not to perform his or her side of the bargain after he or she has received the goods and the title has passed, it is a mere intended breach of contract, and not such a fraud as to give rise to a false pretence․ This intent never to not to perform his or her side of the bargain has sometimes been treated as a fraudulent misrepresentation, and sometimes as a fraudulent concealment, but in either event it must precede or be contemporaneous with execution of the contract. The distinction is between an intent not to perform his or her side of the bargain according to the terms of the contract and an intent to obtain goods under colour of a contract, upon a sham promise to pay, but with the design of never paying for them. The former is a mere intent to break a contract; the latter, an intent to defraud. To constitute the fraud, there must be a preconceived design never to pay for the goods. A mere intent not to pay for the goods when the debt becomes due, is not enough.

Intention, which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved. Fraudulent intent is rarely susceptible of direct proof, and must instead be established by legitimate inferences from circumstantial evidence (see Sinnasamy Selvanayagam v. R [1951] AC 83 at page 87). A design not to pay according to the contract is not equivalent to an intention never to pay for the goods, and does not amount to an intention to defraud the complainant outright, although it may be evidence of such a contemplated fraud. In this case though, the appellant's conduct subsequent to taking possession of the motor vehicles; failing to establish communication with her after the three days had elapsed, avoiding phone contact, becoming evasive, concealing information that he had sold off one of the cars until it was coaxed from him, making a written undertaking to pay which he had no intention of honouring, fixing appointments he never honoured and admitting in his defence that he had engaged in similar conduct previously with an intention to defraud, went beyond proof of a mere design not to pay according to the contract and established facts from which a clear intention to defraud that existed at the time of the contract, could be inferred. The evidence as a whole demonstrated that the appellant did not intend to comply with his promise from its inception.

 

The facts before the trial court established that the appellant made a statement of fact which he knew to be untrue, and made it for the purpose of inducing the complainant to entrust to him the two motor vehicles which he knew the complainant would not have done but for her belief in the truth of his statements, yet he intended to use the money obtained from selling off the two vehicles for a purpose different from that for which he knew the complainant understood from his statements that he intended to. This is proof of intent to defraud, although he subsequently may have intended to repay the money if he could, and although he may have honestly believed, and may even have had good reason to believe, that he would be able to repay it.

 

Although the appellant’s representation related to the future, to the extent that he would hand over the proceeds of sale to the complainant, but the material part of it related to the present, in that he claimed to be in position to sell off the two vehicles on behalf of the complainant and for the benefit of the complainant, whereas not. This was a statement regarding an existing fact and therefore amounted to a false representation to the extent that he at the time he made it had no intention of selling off the vehicles for the benefit of the complainant but rather for his own personal benefit.

 

The fraud is constituted in the mode of obtaining the motor vehicles, because one may by fraud get hold of property, even if one means to return it or its proceeds, and thoroughly believes that he or she can repay it, that person is still defrauding the owner. As Lord Goddard CJ, delivering the judgment of the Court, stated at pages 173 - 174 in R v. Kritz (1949) 33 Cr App R 169 said, "You are not defrauding him out of the money if you eventually do repay it, but you are defrauding the man because you are giving him something different from what he thinks he is getting, and you are getting his money by your false statement. In such a case as that the false statement would not be honestly made, and this question as to the intent to defraud substantially comes to this: whether or not the statements were honestly made." Throughout the cases the statement of proof of that knowledge is commonly described as proving the accused's "dishonesty." In other words, did the accused act dishonestly? Prima facie there is an intent to defraud where property is obtained by false pretences (see R v. Porter (1935) 25 Cr App R 59 at page 62). When the appellant solicited for the two vehicles, having no intention of accounting for the proceeds of their sale and, of course, concealing that intention since possession would not otherwise have been given, the appellant’s conduct, to my mind, did amount to obtaining good by false pretence. Having re-evaluated the evidence, I have not found any merit in the first ground of appeal and it therefore fails.

 

As regards the second ground of appeal, it was conceded by the learned Senior Resident State Attorney that the sentence is illegal in so far as it exceeded the maximum punishment provided for under the Act. The maximum punishment for the offence is five years' imprisonment and indeed a sentence of six years' imprisonment that was imposed is manifestly illegal. An appellate Court is not to interfere with a sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where the trial court failed to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle (see Kiwalabye Bernard v. Uganda, S. C. Criminal Appeal No. 143 of 2011).

In the instant case, the sentence imposed is wrong in principle, thus justifying this court's interference. It is for that reason set aside. It was submitted by the learned Senior Resident State Attorney that the appellant deserves the maximum penalty provided for the offence because he is not afraid of defrauding people of such large sums of money, while counsel for the appellant proposed one years' imprisonment.

 

The factors to be considered when sentencing a convict are outlined in Regulation 6 of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. They include; the gravity of the offence, including the degree of culpability of the offender; the nature of the offence; the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances; 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; the offender’s personal, family, community, or cultural background; any outcomes of restorative justice processes that have occurred, or are likely to occur, in relation to the particular case; the circumstances prevailing at the time the offence was committed up to the time of sentencing; any previous convictions of the offender; or any other circumstances court considers relevant.

 

In Gerald Nsubuga and another v. Uganda C. A. Criminal Appeal No.064 of 2008, the Court of Appeal upheld a sentence of three years' imprisonment imposed on the appellants convicted of the offence of obtaining property (a land title) by false pretences, among others. In Mutema Emmanuel v. Uganda, H. C. Criminal Appeal No.15 of 2014, the court upheld a sentence of two years' imprisonment imposed on an appellant convicted on his own plea of guilty for the offence of obtaining money by false pretences c/s 305 of The Penal Code Act. The amount involved was shs.  1,600,000/=. In Baingana John Paul v. Uganda, C. A. Criminal Appeal No. 008 of 2010, the appellant were convicted and sentenced to four years' imprisonment for the offence of obtaining money by false pretences c/s 305 of the of The Penal Code Act. He was also ordered to pay shs. 50,000,000/= as compensation to the complainants. Both aspects of the sentence were upheld on appeal.

 

Although the appellant is a first offender in so far as he has no previous conviction, has a family to look after, still has the obligation to compensate the complainant as directed by the trial court and he is a relatively young man at the age of 35 years, which are all factors that mitigate the sentence he deserves, in his own admission in his defence he has engaged in similar practice before his lack of respect for other people's property demands that he is subjected to a deterrent custodial sentence. I consider a sentence of three years imprisonment as befitting the circumstances of this case.

 

In the final result, the appeal against conviction is dismissed. Section 197 of The Magistrates Courts Act confers discretion upon a trial court, in addition to any other lawful punishment, to order the convicted person to pay another person such compensation as the court deems fair and reasonable, where it appears from the evidence that, that other person, whether or not he or she is the prosecutor or a witness in the case, has suffered material loss or personal injury in consequence of the offence committed and that substantial compensation is, in the opinion of the court, recoverable by that person by civil suit. Not having not found any reason to interfere with the order of compensation, that aspect of the sentence is upheld. The sentence of six years' imprisonment is set aside and instead the appellant is sentenced to three years' imprisonment to run from the date of conviction.

 

Dated at Arua this 14th day of September 2017.

…………………………………..

                                                                                                Stephen Mubiru

                                                                                                Judge

                                                                                                14th September 2017.