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No. 67154 PC, Opio Andrew Stephen v Uganda (Criminal Appeal No. 17 of 2023)

High Court · [2024] UGHCACD 13 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction and sentence by Magistrate Grade One Court at Kololo
Decision
Appellant to serve 2 years, 5 months and 14 days imprisonment with credit for time already served

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Holding

The High Court held that a sentence which does not arithmetically deduct the remand period in clear terms is illegal, notwithstanding that the failure to deduct remand was not raised in the memorandum of appeal, applying the principle that a court cannot sanction an illegality. The court may address this constitutional imperative even when raised for the first time on appeal. The sentence of 2½ years imprisonment for embezzlement by a police officer was not excessive given the maximum sentence of 14 years and the gravity of betrayal of public trust. The appeal succeeded on illegality grounds only; the sentence was set aside and substituted with 2½ years imprisonment minus 2 weeks remand, totaling 2 years, 5 months and 14 days.

Outcome

Appellant to serve 2 years, 5 months and 14 days imprisonment with credit for time already served

Facts

The appellant, a police officer attached to Jinja Road Police Station, pleaded guilty to embezzlement of an SMG rifle AK47 and 30 rounds of ammunition valued at UGX 5,000,000, property of the Uganda Police Force, on 24 October 2016. The trial magistrate sentenced him to 2½ years imprisonment excluding the two weeks spent on remand. The appellant appealed on grounds that the sentence was harsh, excessive, and that the magistrate failed to arithmetically deduct the remand period. The gun was recovered but 30 rounds of live ammunition were lost and unaccounted for. The appellant was 32 years old, had served 7 years in the police force, and was remorseful.

Issues

  1. Whether the trial magistrate erred in law when he imposed a sentence without arithmetically deducting the period the appellant spent on remand.
  2. Whether the sentence of 2½ years imprisonment was harsh and manifestly excessive.

Orders

  • The sentence of 2½ years imprisonment is set aside.
  • The Appellant shall serve 2½ years imprisonment.
  • The 2 weeks for which the Appellant spent on remand is hereby deducted from the 2½ years sentence.
  • The Appellant will therefore serve a total of 2 years, 5 months and 14 days imprisonment.
  • The period which the Appellant has already served is credited to him.

Rules and key headnotes

Sentencing — Remand Period — Deduction — Constitutional Imperative
A sentence imposed without arithmetically deducting the period spent on remand in clear terms is illegal, as the requirement to deduct remand time is a constitutional imperative and a fundamental right of a convict guaranteed by the Constitution.
Criminal Appeals — Raising Grounds Not in Memorandum — Constitutional Imperatives
An appellate court may address an issue not raised in the memorandum of appeal where the issue concerns a constitutional imperative or fundamental right, applying the principle that a court of law cannot sanction what is illegal (ex turpi causa non oritur actio), notwithstanding the general rule that new arguments should not be entertained on appeal.
Criminal Procedure Code s.28(5) — Unrepresented Appellant — Raising Grounds Orally
Section 28(5) of the Criminal Procedure Code permits an unrepresented appellant to raise any proper ground of appeal orally at the hearing even where not included in the memorandum of appeal, provided the ground is proper.
Sentencing — Appellate Interference — Principles
An appellate court will not normally interfere with the discretion of a sentencing judge unless the sentence is illegal or manifestly excessive as to amount to an injustice. It is not sufficient that members of the appellate court would have exercised their discretion differently.
Sentencing — Embezzlement by Public Officer — Aggravating Factors
In sentencing for embezzlement by a police officer, the betrayal of trust placed in the officer by the institution and the citizenry served constitutes a significant aggravating factor reflecting complete loss of moral direction and absence of sense of responsibility to the community.
Criminal Procedure Code s.34(2)(c) — Alteration of Sentence
Section 34(2)(c) of the Criminal Procedure Code empowers an appellate court to alter the nature of a sentence with or without any reduction or increase and with or without altering the finding, enabling the court to correct an illegal sentence while applying established sentencing principles.

Legislation cited (4)

Cases cited (4)

Full judgment

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No. 67154 PC, Opio Andrew Stephen v Uganda (Criminal Appeal No. 17 of 2023) [2024] UGHCACD 13 (19 February 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.