Lugakingira, J G
The appellant and another person who was the second accused at the trial were on their own pleas of guilty convicted of being in unlawful possession of moshi contrary to ss 30 and 34(1), Act 62 of 1966. I have perused the record and satisfied myself that the pleas were unequivocal. The problem was with sentencing. The appellant was sentenced to twelve month's imprisonment H because he said nothing in mitigation; the second accused, an 18-year-old female, was fined Shs 10,000/= because she told the trial magistrate: `I pray to be fined'. This appeal is against the sentence. The appellant claims that he is hard of hearing and did not understand what was transpiring at the sentencing. He also lists mitigating factors I
A which include advanced age, poor health and `a dozen of grandsons and granddaughters'.
The appellant's claim that he has lost the capacity of hearing makes no sense and must be rejected for a lie because he is challenging the sentence only, not the conviction. The real problem in the case is indeed whether the disparity in B sentencing was justified. For the information of the trial magistrate, however, even the second accused said nothing amounting to mitigation of sentence but asked for the sentence she preferred. If sentence is going to proceed on the wishes of accused persons, very soon they will also be shopping for the prisons they prefer as is the case in some countries. C
For the further information of the trial magistrate even the `mitigated' sentence he imposed on the second accused was illegal. The offence attracts a maximum fine of Shs 5,000/= but he ordered her to pay twice over!
D I think the disparity was unjustified. Where two or more persons are jointly convicted of an offence, a severer sentence on one cannot be justified by his failure to advance mitigating factors but by aggravating factors on his side.
E Failure and even refusal to speak in mitigation is not an aggravating factor for it is within the accused's lawful discretion. A wrong principle was thus applied in this case and the appeal ought to succeed.
Learned counsel for the Republic also wondered whether it was proper for the arresting officer to prosecute the case, but I see no difficulty in this. There is no F rule really, against this, and in view of the prompt and unequivocal pleas in this case, I think there was no failure of justice. This court has in fact had the occasion to say that there was no bar for a prosecutor to be a witness in the case he prosecutes: see for example R v Sarwan Singh (1).
G The appellant has been in prison since 22 October 1996, a period of six months. I think that serves the justice of the case. I allow the appeal and reduce the sentence to result in his immediate release. In revision I also set aside the sentence imposed on the second accused and substitute a fine of Shs 5,000/=. She should be refunded the extra Shs 5,000/=. H
1997 TLR p107
