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Peter Lugayula v. R. Crim. App. 690-D-68, 14/2/69, Georges C. J.



Peter Lugayula v. R. Crim. App. 690-D-68, 14/2/69, Georges C. J.

The appellant pleaded guilty to three charges under the Penal Code: one of forgery, c/ss 335 and 337; one of fraudulent false accounting, c/s 317; and one of stealing by clerks and servants, c/s 265 and 271. he was an employee of the National Agriculture Co. Ltd., and what he did was to forge the duplicate of a receipt for Shs. 5,584/- by altering it to Shs. 5,184/-, and then pocketing the difference. He was sentenced to 24 months imprisonment on the first count, 24 months on the second count and 36 months on the third count, all to run concurrently.

Held: “The sharp issue of principle or decision in this case is whether or not one should take into account in a case of theft the fact that the property belongs to a parastatal organization and is in fact, if not in law, Government property, and impose a stiffer sentence more or less in line with the sentences prescribed under the Minimum Sentences act; or whether that should be ignored and the theft treated as theft from some owner of private property. That really is clearly the issue. What motivated the magistrate was the fact that, though parastatal organizations are not covered by the Minimum Sentences Act, in fact they are organizations which deal with public funds and which exist to increase and guard public property. The magistrate felt that offense against corporations of this sort were prevalent and merited some form of special treatment, and for that reason he imposed the sentences passed in this case. I would, basically, agree with this approach. I have noted the cases ….. – Rep. v. Joseph Michael: Jumanne Dumwalla v. Rep. – neither of which, unfortunately, has been reported and must be referred to in the original case files. I do not regard these cases …… as precedents – they are basically guides. But I do think that when the learned magistrate directs himself as to the prevalence of the offence and notes that the employer is not covered by the Minimum Sentences Act, but is in fact a public body, financed by public funds, then he is entitled to impose a sentence somewhat higher than he would have imposed had these considerations not been present. I do not think the principles on which the magistrate acted are basically wrong, but I do think that the result at which he arrived may be criticized in that even if this matter had come under the Minimum Sentences Act, there would seem to be no reason in this case for imposing a sentence of imprisonment higher than the minimum prescribed. I have noted the circumstance of this case which has been called mitigating – the fact that the appellant is a first offender; and that he would lose his job and also his contributions to the Provident Fund. As regards the second circumstance. – that he would lose his job and his contributions to the Provident Fund – I do not think these should be regarded

as forms of punishment which should dispose a court to look more leniently on the offence. The fact that the appellant made arrangements to refund the money is, I think, relevant. It is also said in mitigation that the appellant has a large number of dependents. Normally, I would not place much emphasis on this, because it is a matter which should have been in the appellant’s mind before the commission of the offence. I think there may, at some future date, be much argument as to whether or not the number of dependents is itself a special circumstance under the Minimum Sentences Act and it may well be strongly argued that it is not. I do not think the learned magistrate took these mitigating factors into consideration – in particular, as I say, the fact that the appellant was a first offender, and that he had made arrangements for the refund of the money. In that way, I think he has erred, although the basic principles on which he acted were correct. Taking into account the mitigating circumstances, I would, therefore, vary the sentence to – 12 months on the first count; 12 months on the second count; and 18 months on the third count; all the terms to run concurrently”.

(Editor’s note: The two cases referred to in this judgment, Joseph Michael v. R. Crim. Rev. (-)-D-68, and Jumanne Dummwalla v. R. Crim. App. 399-D-68, have both been digested and appear in 2 H.C.D. n. 435 and 437, October 1968. It was held therein that neither the National Development Corporation nor the National Development Credit Agency were part of the public service and so were not covered by the Minimum Sentence Act. In both cases, sentences of nine months imprisonment were awarded for theft by servant from the above-mentioned organizations).

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