The Republic v. Musa Yusufu, Crim. Rev. 34-M-70: 14/8/70; Mnzavas, Ag. J.

The Republic v. Musa Yusufu, Crim. Rev. 34-M-70: 14/8/70; Mnzavas, Ag. J.

The accused, an employee of Kalemera Primary Court, was charged with and convicted of two counts of stealing by public servant and two counts of fraudulent false accounting c/ss 265 and 270 and 317 of the Penal Code. He was sentenced to 12 months and six months imprisonment on counts of stealing and on counts of fraudulent false accounting respectively. On the question of Minimum Sentences Act – In sentencing the accused, the learned Resident Magistrate said, “the accused is a young man of 16 years and coupled with the fact that he is a first offender, I find that there are special circumstances in his favour. The accused alleged that he is suffering from pneumonia, and there is no evidence to contradict him. I have to accept his word. Consequently there are enough special circumstances which dictate the taking of this case out of the Minimum Sentences Act which I do”.

            Held: (1) “I do not agree with the magistrate that there were special circumstances within the definition of section 5(2) of the Minimum Sentences Act, to entitle him to impose a lesser sentence than the minimum. In my view, and without in any way trying to challenge previous decisions on this point, section 5(2) of the Minimum Sentences Act only comes into operation if three things are satisfied (1) The person so convicted must be a first offender; (ii) The property obtained or attempted to be obtained in committing the offence does not exceed Shs. 100/= o r(iii) in cases falling under section 3(2) of the Prevention of Corruption Ordinance the value of consideration given does not exceed Shs. 100/-. These conditions having been fulfilled – in this case only condition No. (i) and No. (ii) Apply; the court must, over and above look for special reasons, if any, before taking an offence out of the Minimum Sentences Act. In the present case the accused is certainly a first offender. His youthfulness, I agree, can be taken as a special circumstance. But the money stolen certainly exceeds Shs. 100/- He stole in all Shs. 566/-. The allegation that the accused is a victim of pneumonia is a matter more conveniently dealt with by the prison medical officer than a court of law. In my view, it should not have been included as a special circumstance to mitigate the sentence.” (2) Sentences in all counts increased to the statutory 2 years and 24 strokes corporal punishment.