John s/o Kiwanuka v. R. (PC) Crim. App. 391-M-66; 23/3/67; Platt, J.

John s/o Kiwanuka v. R. (PC) Crim. App. 391-M-66; 23/3/67; Platt, J.

Accused was convicted in three separate cases of housebreaking and stealing, and in a fourth case of school breaking and stealing, in Primary Court. Sentences of two years and twenty-four strokes were imposed for housebreaking, with one-year sentences for the thefts in those cases ordered to run concurrently with the housebreaking sentences- and a similar sentence was imposed in the school breaking –theft case; to run concurrently with one of the housebreaking sentences – by the magistrate who had tried all four cases. This magistrate ordered that the housebreaking sentences should run consecutively, resulting in an effective order for six years’ imprisonment and seventy-two strokes. On Appeal to the District Court, the District magistrate confirmed each sentence but ordered that all four should concurrently.

            Held: (1) Had the housebreaking charges been tried in a single case, concurrent sentences could have been imposed, under Primary Courts Criminal Procedure, paragraph 6. Moreover, only one sentence of corporal punishment could have been imposed according to Corporal Punishment Ordinance, Cap. 17, s. 10. (2) However, there is no provision in the Primary Courts Criminal Procedure Code defining the magistrates’ power as to sentence imposed in two or more separate cases. Section 36 of the Penal Code is “wide enough” to cover such a situation, but it has not been re-enacted as Primary Court legislation—apparently only because of legislative “oversight.

(3) Thus, in dealing with the charges in separate trials, the magistrate “excluded,” and the sentences “must be understood to be consecutive.” (4) The evidence does not support the school breaking conviction: a conviction of receiving stolen goods and a sentence of nine months is imposed thereon. (5)The “alarming result” is that the accused is sentenced to six years and nine months’ imprisonment and seventy-two strokes. (6) While the High Court has “no power to mitigate the severity of this sentence,” the matter would be placed before the Attorney General for consideration.