SENTENCIN

G
 Introduction
• Sentencing is the judicial determination of the penalty for a crime. A sentence is a
punishment imposed upon a person who has been found guilty of committing an
offence.

• A trial does not stop at convicting a person. The process of sentencing a person is part of
the trial. This is because the court will take into account the evidence, the nature of the
offence and the circumstances of the case in order to arrive at the appropriate sentence.

• After pronouncing its judgment, the court has a duty to determine the appropriate
sentence and pass the same onto the accused in the event of conviction.
• The sentence should not be ambiguous.
• Attorney General v Susan Kigula SC Const Appeal No 03 of 2006
 Uganda V. Kiwalabye Mohammed,
• In Uganda V. Kiwalabye Mohammed, court noted that “the determination of appropriate punishment after the conviction of
an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and
the limit of the punishment permissible for an offence, but the court has to determine each case a sentence suited to the
offence and the offender… the measure of punishment in any particular instance depends upon a variety of considerations
such as the motive for the crime, its gravity, the character, the age, antecedents and other extenuating or aggravating
circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by court
in passing the sentence.
• In matters of passing a punishment for offences committed by a person, there are many approaches to the problem. On one
hand is the traditional reaction of universal nature which is the punitive approach. It regards the criminal as a notorious
dangerous person who must be subjected to severe punishment to protect the society. The other approach is the therapeutic
approach. It regards the criminal as a sick person requiring treatment and reform. While the third is preventive approach
which seeks to eliminate those conditions from society which were responsible for the causation of crime.
• Under the preventive approach, the rationalization of punishment is based upon retributive and utilitarian theories. Deterrent
theory which is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only
to the offenders but also others in the community. It is true that sentences which are disproportionately severe should not be
passed but that does not mean that courts should mete out sentences manifestly inadequate since inadequate sentences should
fail to produce a deterrent effect on the society at large. Though undue harshness is not required but inadequate punishment
may lead to suffering of the community at large”
 Purpose of sentencing
• The purpose of sentencing is to promote respect for the law in order to maintain a just,
peaceful and safe society and to promote initiatives to prevent crime. The court shall in
accordance with the sentencing principles pass a sentence aimed at-
a) Denouncing unlawful conduct
b) Deterring a person from committing an offence
c) Separating an offender from society where necessary
d) Assisting in rehabilitating and re-integrating an offender into society
e) Providing reparation for harm done to a victim or to the community
f) Promoting a sense of responsibility by the offender acknowledging the harm to be done to
the victim and the community
• It is the duty of the court to impose penalties that will have the effect of deterrence to protect
the community and also be punitive to the offender
 Purpose of sentencing
• In Kyalimpa Edward V Uganda, the Supreme Court noted that; “it is a settled
position of law in our criminal justice system that sentencing is a matter of
discretion of the judge… discretion arise in circumstances where there is no more
than one viable option.

• In African Contitental Bank V Nnamani (1991) NWLR (part 186,486, the

Nigerian Court held that; “the exercise of the court’s decision is said to be judicial
if the judge invokes the power in his capacity as a judge qua law. An exercise of
discretionary power will be said to be judicial , if the power is exercised in
accordance with the enabling statutes. On the other hand, an exercise of
discretionary power is said to be judicious if it raises or conveys the intellectual
wisdom or prudent intellectual capacity of the judge as juex. The exercise must be
based on a sound and sensible judgment with a view of doing justice to the parties”
 Purpose of sentencing
• In Uganda V Baiga Kuchika, court noted that;
• “The court is mindful of the purpose for which punishment may be
imposed, i.e; to punish the offender to an extent and in a manner
which is just in all the circumstances (just punishment); to engaged
(denunciation); to deter the offender (specific deterrence) or others
(general deterrence) committing offences of the same or a similar
character; to facilitate the offender’s rehabilitation; to protect the
community from the offender (incapacitation); or a combination of
one or more of those purposes”
 Basic Sentencing Procedure
In determing an appropriate sentence, the trial court should consider aggravating factors and also take into account the
mitigating factors.
• Every court shall when sentencing an offender take into account-
• The gravity of the offence, including the degree of the culpability of the offender
• The nature of the offence
• The need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar
offences committed in similar circumstances
• Any information provides to the court concerning community, including the victim or the community, including victim
impact statement or the community impact statement
• The offenders’ personal, family, community or cultural background
• Any outcome of restorative justice process that have occurred or are likely to occur in relation to the particular case
• The circumstances prevailing at the time the offence was committed up to the time of sentencing
• Any previous convictions of the offender
• Any other circumstances court considers relevant
 Basic Sentencing Procedure
• After the judgment has been pronounced it is the duty of the court to determine the
appropriate sentence or punishment and pass the same on the accused in the event
of conviction.

• The court will normally first hear the prosecutor giving information regarding
character and other background of the accused as well as the prosecutors’
submissions, if any, about the nature of the sentence that should be imposed on the
accused and his/her advocate may address the court usually in mitigation of
sentence.

• The accused person may also be allowed to say something personally on his/her
own behalf before the court passes the sentence.
 Basic Sentencing Procedure
• When both the prosecutor and the accused have addressed the court on sentence,
the court will determine the suitable sentence taking into account what the
prosecutor and the accused have said, as well as having regard to the general
principles of sentencing.
•
• When the appropriate sentence has been determined, the court will write it down
giving reasons for passing that sentence. Then court will pronounce the sentence
and the reasons for the same.

• The sentence should be pronounced in the presence of both the accused and the
prosecutor. It should be signed on the date upon which it is pronounced. The
accused should be informed of the right of appeal.
 Basic Sentencing Procedure
• Regarding the gravity of the offence, the more grave the offence, the more severe the
sentence. The gravity of the offence is usually deduced from the punishment prescribed in
the law and the degree of loss or injury occasioned by the crime.
• Where a person is convicted and sentenced to a term of imprisonment for an offence, any
period he or she spends in lawful custody in respect of the offence before the completion
of his/her trial shall be taken into account in the imposing the term of imprisonment.
• This requires the court to pass an ascertainable and final sentence after it has taken the
remand period into account. Authorities to this position include; Bashir Ssali V Uganda
SC. Crim. Apeal No. 40/2003, Bukenya V Uganda SCA No. 17/2010 and Kabwiso V
Uganda SCA No. 7/2002. The period should be taken into account specifically along
with other relevant factors before the court pronounces the term to be served. However to
“take into account” does not require a trial court to apply a mathematical formula by
deducting the exact number of years spent by the accused on remand from the time of
sentence to be awarded by trial court.
 Basic Sentencing Procedure
• In Kabuye Senvewo V Uganda, the Supreme Court noted that;
• “The constitutional requirement ranks the period spent on remand among the several factors to
be weighed in assessing the term of imprisonment to be imposed on a person convicted of a
criminal offence. It must not be construed as a provision of a formula of discounting the
sentence”

• A trial court should also consider past sentencing decisions so as to promote uniformity,
consistency and transparency. Judicial officers should take cognizance of what sentences have
been passed by other courts on the same offence. Although such sentences passed in previous
cases of a similar manner are not precedent, they offer materials for comparison.

• It is a rule of practice that first offenders ordinarily do not receive the maximum sentence for
the offence of which they have been convicted.
 Basic Sentencing Procedure
• In Uganda V Baiga Kuchika, it was further noted that;
• “A court must have regard to the sentencing factors that are present in a
particular case when determining the nature and the length of the sentence that
will appropriately give effect to the purposes for which the sentence is imposed.
Among the many sentencing factors the maximum penalty is listed first and is
considered to be of primary importance in the sentencing process. In reaching a
sentence, judges are guided by the maximum penalty rather than directed
towards it. The maximum is the penalty prescribed for the worst class of case. It
is used as a navigational aid and the court may decrease the sentence that might
otherwise be imposed, if circumstances so warrant”
 Inquiry before Sentence
• The court is given power to make such inquiries as are necessary to enable it to determine the
appropriate sentence to be imposed on the accused. [S.133(2) of M.C.A. and S.98 of T.I.A.].
• 
• Therefore the court, before passing sentence, may make such inquiries as it thinks fit in order
to inform itself as to the proper sentence to be passed.

• For this purpose, the court may inquire into the character and antecedents of the accused, and
take them into consideration either at the request of the prosecution or the accused person in
assessing the proper sentence to be assed.
• The court may also take into account any offences admitted by the accused, whether or not
he/she has been convicted of such offences.
 Inquiry before Sentence
• However, the accused person must be given an opportunity to confirm, deny or
explain any statement made about him/her and in case of doubt the court should,
in the absence of legal proof, ignore such statement.

• Secondly, no offence of which the accused has not been convicted should be
taken into account in assessing sentence unless the accused person specifically
agrees that such offence should be taken into consideration and a note of such
request is recorded in the proceedings.

• Thirdly, if for any reason, the sentence passed by the court is subsequently set
aside, the accused shall not be entitled to plead autrefois convict in respect of any
offence taken into consideration in assessing the sentence that was set aside.
 The Role of the Prosecutor in the Sentencing Process
•  It is the duty of the prosecutor to bring to the attention of the court any information he/she may have in
his/her possession concerning the accused’s character and background to enable the court assess the proper
sentence. In so doing the prosecutor must be alive to the principles of sentencing as well as have
sufficient information regarding the accused.
• 
• The prosecutor should bring forward all the material information in his/her possession that is relevant to
sentence, whether it is in favour or against the accused.
• The prosecutor should not be shy to tell the court that the accused is a first offender or that he/she used no
violence or that all the property stolen was recovered, or that he/she has been helpful in assisting the
police in their inquiries factors which would tell in favour of the accused.

• On the other hand the prosecutor should find out whether the accused has any previous convictions and so
inform the court or ask the court to take a serious view of the case having regard to the gravity of the
offence and the manner in which the accused committed it.
• Where the accused disputes previous convictions, they must be proved in court by calling the fingerprint
expert who has submitted the record of previous convictions.
 The Role of the Prosecutor in the Sentencing Process
• However, prosecutors must not address the court on extraneous matters in relation
to sentence. A matter is extraneous if it is not strictly relevant to the offence
convicted and has not been proved in evidence during the trial. For whatever
allegations made by the prosecutor the accused must be given an opportunity to
admit or challenge them.
• 
• It is a rule of practice that a prosecutor should not suggest the actual sentence to
be passed upon the accused. This is a matter entirely within the discretion of the
court. The prosecutor may however request the court to impose a deterrent or
lenient sentence depending on the circumstance of the offence.
 Committal for Sentence
•  A magistrate’s court is given power to commit an accused person to a higher court
for sentence, if it is of the opinion that a higher or severer sentence than it can
impose according to its sentencing powers, should be imposed on the accused.
Magistrates Grade I, II and III commit their cases to Chief Magistrates for Sentence.
(S.164 of M.C.A.).
• 
• Therefore, where a court presided over by a Magistrate Grade I, II or III convicts a
person of any offence, and on obtaining information about his/her character and
antecedents the court is of the opinion that there are such that greater punishments
should be inflicted than the court has power to impose, the court may, instead of
dealing with him/her in any other manner, commit him/her in custody to a court
presided over by a Chief Magistrate of the area, for sentence. [S.164(1) of M.C.A.].
•  
 Committal for Sentence
•  However, if the Chief Magistrate considers that the conviction is improper or
illegal, he/she may forward the record of the proceedings to the High Court, and
postpone passing sentence pending the decision of the High Court. In the
meantime, the Chief Magistrate may, pending such decision, release the offender
on bail or remand him/her in custody, as he/she thinks fit.
• 
• Similarly, if the Chief Magistrate convicts a person of any offence and on
obtaining information regarding the character of the accused, he/she is of the
opinion that greater punishment than he/she can impose, should be inflicted on the
accused, he/she may commit the accused in custody to the High Court for
sentence. [S.164(2) of M.C.A.].
 Committal for Sentence
•  When an offender has been committed for sentence, the warrant of the committing court shall
be sufficient authority to the officer in charge of any prison for his/her detention in custody.
The record of the proceedings should be transmitted without delay to the relevant Chief
Magistrate or the Chief Registrar of the High Court as the circumstances may require.
• 
• The accused and the prosecutor should be given an opportunity to appear before the court to
which the accused is committed for sentence. It is at this court that the sentencing process is
finalized. In fact the court to which the accused is committed for sentence is required to
inquire into the circumstances of the case, and has the same powers to deal with the offender as
if he/she had been convicted by that court (S.165 of M.C.A.).
• However, while the court can exceed the sentencing powers of the committing or trial court by
exercising its own sentencing powers, it cannot exceed the maximum sentence provided for by
law for the offence with which the accused is convicted.
 Confirmation of Sentence
•  The following sentences passed by a Magistrates Court other than a Chief
Magistrates Court require confirmation by the High Court. (S.173 of M.C.A.).
a) A sentence of imprisonment for a period of two years or over;
b) A sentence of preventive detention imposed under the Habitual Criminals
(Preventive Detention) Act, Cap. 118.

• The Court has power to release the accused on bail pending confirmation of sentence
[S.168(1) of M.C.A.], although this power is rarely resorted to because of the danger
in releasing the accused. However, the High Court has power to order the convicting
court to release accused on bail pending its decision [S.174(5)].
• Where the accused is released on bail, the term of imprisonment shall run from the
date upon which he/she is received in prison after confirmation or other order
imposing imprisonment made by the confirming court.
 Confirmation of Sentence
• Where the accused is not released on bail, he/she must start serving his/her sentence pending
confirmation, as from the date upon which he/she is sentenced in the magistrates’ court unless
he/she elects to postpone serving the sentence until it is confirmed.
• If the accused elects to postpone serving sentence, the court should remand him/her to prison
pending confirmation of sentence. In such case, the term of imprisonment shall run from the
date upon which the confirmation court makes its order.
• 
• The procedure for confirmation of sentence is that the trial magistrate forwards the record of
proceedings in the case of the Chief Registrar of the High Court normally through the Chief
Magistrate of the area.
• The Chief Registrar would then place the case before a judge who would peruse the record of
proceedings including the judgment and sentence, to ensure that not only is the sentence proper
but that the conviction too is proper.
 Confirmation of Sentence
• If the judge considers that the sentence is proper, he/she will pass an order confirming it, and
the record will be remitted back to the trial court.

• If the judge finds that either the conviction or the sentence cannot be maintained, he/she is
empowered to invoke revisionary powers under S.50 of the C.P.C. [See S.174(4) of M.C.A.]
and will make a revisional order after seeking the views of the DPP.
• While revising the case, the judge may quash the conviction and set aside the sentence or
he/she may order a retrial.
• The judge may also reduce the sentence if it is manifestly harsh, or excessive, or may enhance
it after hearing the accused, if he/she finds that the sentence is so lenient as to amount to a
miscarriage of justice.
• This procedure enables the High Court to exercise important supervisory powers over the
sentences imposed by magistrates courts to ensure a measure of uniformity and legality in the
sentencing process.
 Combination of Sentence
•  

•The High Court and Magistrates Courts may pass any

lawful sentence, combining any of the sentences which
each court is authorized by law to pass.

•[S.2(1) of T.I.A. and S.172 of M.C.A.] respectively.

 Concurrent and consecutive sentence
•  Concurrent sentence are two or more sentences of jail time to be served
simultaneously.
• Consecutive sentences are two or more sentences of jail time to be served in
sequence.
• An appropriate sentence is a matter for discretion of the sentencing judge. Each case
presents its own facts upon which the judge exercises his discretion.

• Judicial discretion is the exercise of judgment by a judge or court based on what is

fair under the circumstances and guides by the rules and principles of law a court’s
power to act or not act when a litigant is not entitled to demand as a matter or right.

• A court may pass any lawful sentence combining any of the sentences which it is
authorized by law to pass.
 Concurrent and consecutive sentence
•  where a person after conviction for an offence is convicted for another offence,
either before sentencing is passed upon him or her under the first conviction or
before the expiration of that sentence, any sentence of imprisonment which is
passed upon him or her under the subsequent conviction shall be executed
concurrently with the former sentence or of any part of it; but it shall not be
lawful for the court to direct that a sentence of imprisonment in default of
payment of a fine shall be executed concurrently with a former sentence or any
part of it.
• Where a person is convicted of more than one offence at the same time and is
sentenced to pay a fine respect of more than one of those offences, then the court
may order that all or any of such fines may be noncumulative.
 Concurrent and consecutive sentence
• In Sekandi Zebron V Uganda, court noted that “a judge lumbered with the
responsibility of exercising discretion is required to reach every decision based on the
facts and circumstances of placed before him or her and apply the applicable law where a
convict is convicted of several offences at the same trial the sentences shall be served
concurrently, that is together or at the same time, or that the sentences are to run
consecutively, that is the sentences follow one another.

• As a general rule of practice cases where a person has been charged and convicted on
two counts involving the same transaction, the trial court may direct that sentences
should run concurrently.
• However, nothing bars a judicial officer from directing that the sentences run
consecutively even where conviction is on two or more counts involving the same
transaction
 Calculating the totality of a sentence
•Where the court imposes consecutive sentences, the
court shall first identify the material part of the conduct
giving rise to the commission of the part of the offence
and determine the total sentence to be imposed.
 Types of sentences
The court may impose any of the following sentencing options-
1.Death penalty
2.Imprisonment for life
3.Imprisonment for a specified period of time
4.A fine
5.Community service
6.Probation
7.A caution and discharge without punishment and
8.Any other lawful sentence option
 Sentencing orders
The court may make any of the following orders when sentencing an
offender-
1. Conditional discharge
2. Costs
3. Compensation
4. Restitution
5. For feature
6. Or any other lawful sentencing orders
 Punishment
Definition of punishment 
• Punishment may be defined as the intentional infliction of pain and suffering either physically
or mentally or both upon the offender by the State basically for the sake of making the
offender suffer for his/her wrongs or desist from similar conduct.
Punishment consists of the following characteristics or elements:
• It must involve pain or other consequences normally considered unpleasant;
• It must be levied for an offence against legal rules;
• It must be given to an actual or supposed offender for his/her offence;
• It must be intentionally administered by human beings other than the offender;
• It must be imposed and administered by an authority constituted by a legal system against
which the offence is committed.
 Aims of Punishment
Aims of punishment are sometimes referred to as theories of punishment. They attempt to explain
the justification for punishment and what is intended to be achieved. Generally speaking,
punishment may be said to serve four main goals namely, retribution, prevention, deterrence and
reformation.
• Retribution: According to the retributive theory, punishment is justified because the offender is
treated in the manner he/she deserves by being punished. It involves concepts of vindication,
denunciation and proportionality. Punishment satisfies the victim’s desire for vengeance or
revenge. Punishment is also said to be an expression of society’s disapproval of the accused’s
conduct.

• Deterrence: The deterrent theory is that by punishing the offender, both the offender and the
public are discouraged from committing similar offences. Individual deterrence aims at giving
the offender such an unpleasant treatment that through fear of a repetition of punishment, he/she
does not repeat his/her criminal conduct. There is a general deterrence whereby the general
public is discouraged from committing crimes by threat of punishment, the accused being used as
an example.
 Aims of Punishment
• Prevention: According to this theory the aim of punishment is the
incapacitation of the offender from committing further crimes.
• Society has to be protected from the offender’s injurious conduct by
confining him/her and keeping him/her away from the public. The
main object here is the protection of society. But the offender is also
rendered incapable of committing further offences, by confinement.
• 
• Reformation: The reformative theory of punishment is the
rehabilitation of the offender. Punishment is believed to bring
remorse, repentance and reform
 Punishment
. All these classic goals of punishment are important and a court
should take them into consideration when determining the
appropriate sentence in a particular case.

There may be circumstances in a particular case, which call for the

emphasis of a particular principle of sentencing to achieve a desired
objective.

But there may also be circumstances, which require several of the

goals of punishment to be considered and incorporated in the
sentence.
 Classification of Sentences
•Sentences may be classified into the following
four groups:
1. Punitive sentences;
2. Compensatory sentences;
3. Custodial sentences;
4. Rehabilitative sentences.
 Classification of Sentences
• Punitive sentences are aimed at punishing the offender. They inflict
upon the offender loss of liberty, pain, or financial loss. Among the
punitive sentences are imprisonment, fine, corporal punishment,
disqualification from driving etc., and forfeiture e.g. of firearms,
motor vehicles, etc.
• 
• Compensatory sentences are aimed at compensating the victim for
whatever material loss they have suffered. Compensatory sentences
include costs and restitution.
 Classification of Sentences
• Custodial sentences involve the detention of the offender in prison or
in some other institution.
• The aim could be punitive as in imprisonment, or rehabilitative as
when a young offender is detained in an approved school. The non-
custodial sentences include fines, suspended sentence, binding over,
and probation.

• Rehabilitative sentences are intended to give the offender a chance to

reform and become a good person. Such sentences include probation,
suspended sentence, security for keeping the peace, and police
supervision.
 The Role of Maximum Sentences
•  Every offence must have its punishment prescribed. The normal practice is for the legislature
to lay down only the maximum punishment to which the offender is liable, thus giving the
court discretion to impose a lesser punishment. But in some instances the legislature has
prescribed minimum sentence as well as fixed sentences.
• The effect of providing a minimum sentence is to tie hands of the court so that it does not
impose a sentence lower than the minimum.
• Where the sentence is fixed by law e.g. death for murder, the sentence is mandatory and court
has no discretion to impose a lesser or severer sentence, but the one fixed by law.
• A maximum sentence is intended to reflect the gravity of the offence, although the maximum
penalty cannot be the only criterion for judging the gravity or seriousness of the offence. The
circumstances under which the offence is committed are relevant in assessing the gravity of
the offence.
 The Role of Maximum Sentences
• Courts normally refer to the maximum sentence in assessing sentence. They are
duty bound to have regard to the maximum sentence provided because they
cannot impose a sentence higher than the maximum prescribed, even if they
think that circumstances justify such sentence.

• But in taking into account the maximum sentence, a court must bear in mind that
the maximum sentence should be reserved for the worst examples of the kind of
the offence in question. Therefore the maximum penalty should be imposed only
rarely and particularly in shocking cases.
 Determination of Proper Sentence
•  Unless the sentence is one which is fixed by law, it is the duty of the court to assess the
appropriate sentence to be imposed in a particular case, within the maximum sentence
prescribed. This duty involves exercise of judicial discretion.

• The determination of the proper sentence may be said to involve two distinct decisions, the
primary decision and the secondary decision: 
• The Primary Decision: The primary decision involves a decision on two basic questions,
namely;
1. whether the factors are such that the interests of the public as well as of the individual can
best be served by a rehabilitative sentence, or 
2. whether they are such that the public interest can only be served by a deterrent or retributive
sentence or one which will ensure the protection of society.
 Determination of Proper Sentence
•  The primary decision is a positive choice rather than a process of elimination. It is wholly
governed by public policy. For instance public policy may be seen as justifying a deterrent or
retributive sentence in certain offences like robbery or for certain classes of offenders like
professional criminals, public officers guilty of breach of trust, or certain offence in certain
localities where a particular offence has suddenly become prevalent.

• It is for this reason that the primary decision is less predictable than the secondary decision
which is usually governed at least in part by reasonably settled principles.
• It is dangerous to generalize on questions of primary policy as this may change very rapidly
in response to sudden developments in the general pattern of criminal behaviour as it appears
to the judge, or may be governed by a response to the problems of a particular locality at a
particular time.
 Determination of Proper Sentence
•  It is however possible to identify certain stable trends of policy, for instance, certain offences and certain
categories of offenders who tend to attract deterrent sentences.
• Offences where deterrent sentences are mostly imposed include robbery, unlawful wounding, grievous bodily
harm, rape, defilement and offences involving fraud like forgery.
• Offences where individualism or reformation of the offender is considered include offences committed by young
offenders and mentally impaired offenders. In the case of young offenders, there can hardly ever be any conflict
between the public interest and that of the offender. The public has no greater interest than that he/she should
become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of
realizing that object. That realization is the first and by far the most important consideration.
• 
• Where the court decides that the public interest can best be served by a rehabilitative sentence, it will then choose
between one of a number of methods of disposal available. Where the court decides that deterrence, retribution
or protection of the public must be employed, it may decide whether it should pass the sentence or commit the
offender to a higher court to do so. If it decides to pass sentence, the court must calculate the tariff or the length
of sentence.
 Determination of Proper Sentence
• The Secondary Decision: The secondary decision is the calculation of the length of sentence.

• Once the court decides that public policy demands a tariff sentence then there arises the
problem of determining how the length of that sentence of imprisonment should be calculated.
The secondary decision is governed mainly by retributive concepts and in particular the
principle that the severity of the sentence must not be out of proportion to the gravity of the
offence.

• Even where a firm policy in favour of deterrence is applied in respect of a general category of
crime, sentences in particular cases must reflect the different degrees of gravity within that
group.
• Thus the more serious offences must be distinguished from the less serious.
 Determination of Proper Sentence
• The secondary decision in tariff sentencing involves placing the particular offender at an
appropriate point within the range, by reference to the gravity of the offence as an example of
its species and such mitigating factors as may be relevant.

• It is generally held that an emphasis on deterrence does not justify a sentence at a higher point
on the range or that category of offences than the particular offence justifies in relation to
other more serious offences. The process of determination of the appropriate length of
sentence can be carried out in three stages, namely:
a) the determination of the general range of the category of offence;
b) the preliminary placing of the particular offence within that intrinsic seriousness;
c) the calculation of allowances for mitigating factors.
 Determination of Proper Sentence
• The determination of the general range of sentence for the particular offence is based on the normal or average
range of sentences previously imposed by the courts for similar offences. It involves the determination of the
two extremes, the low and upper limits for the sentences normally imposed.
• It is advisable for magistrates’ courts to have regard to the sentences passed or approved by the High Court as a
guideline. It should then be possible to identify from judicial decisions a structure or ranges for each major
division of the criminal law e.g. crimes of violence, against property, sexual offences etc. or ranges for specific
offences.
• 
• Once the extremes have been determined, then the particular case underhand must be placed at an appropriate
point within the established range. This process is governed primarily by concepts of proportion, the relative
seriousness of the offence as an instance of its kind. What may be considered the average offence of its kind is
placed near the middle of the range. As in the case of statutory maximum, room must be left within the effective
range to deal with the most serious examples likely to be encountered.
• From the middle of the effective range it is possible to work towards an initial placement. At this initial
placement, the record of the offender must be left out of account at this stage.
 Determination of Proper Sentence
• At the final stage, allowance must be made for mitigating factors from the initial
placement arrived at. Among the mitigating factors are: accused’s previous good
record (e.g. first offender), young or old age, loss of self-control, plea of guilty,
etc. These tend to tell in favour of the accused and to reduce the severity of the
sentence.
• 
• After taking into account all the above circumstances, the court will determine
the proper sentence within the normal range of sentences, usually given for the
offence.
• If the case is a particularly bad one, the court is free to go beyond the normal
range and impose a higher sentence, which is justified in the circumstances.
 Principle of Proportionality
•  This principle is a legacy of the Law of Moses, namely, “an eye for an eye” and is rooted in
the retributive theories of punishment. The essence of the principle is that the punishment
passed must be commensurate with the offence committed.
• The offender should receive a sentence, which he/she deserves, no more no less. In other
words, the quantity of the punishment must reflect and be related to the heinousness or
wickedness of the offence.
• 
• In determining the right proportion of sentence to be imposed, the court must first assess the
gravity of the offence that includes the circumstances of the offence and the circumstances of
the offender.
• After assessing the seriousness of the offence committed the court must decide in relation to
similar offences, how grave or wicked this particular offence is.
 Principle of Proportionality
• This is both a moral and social question. Thereafter the court will be able to
decide whether a serious or lenient view should be taken in sentencing, or
whether a nominal, medium or severe sentence should be imposed. For instance,
theft of one goat deserves a lesser sentence than theft of one hundred head of
cattle if all the circumstances of the offence and the offender(s) are similar.
• 
• The idea that a court should pass a sentence which is proportionate to the offence
committed is so much enshrined in the principles of sentencing that a higher
court on appeal or revision will only set aside a sentence which is patently
inadequate or manifestly harsh and excessive, as to amount to a miscarriage of
justice.
 Gravity of the Offence
•  The legislature has graded offences according to gravity by prescribing the
maximum penalties. But is a general grading which is contained in the statute.
When the court is faced with assessing the gravity of the particular offence
committed, it has to resort to other factors outside the statute to determine the
relative gravity of the offence under consideration.
• 
• The factors to be taken into consideration are the nature of the offence, the
circumstances of the offence and the circumstances of the offender.
 Gravity of the Offence
In considering the nature of other offences, it is pertinent to have regard to matters such that:
1. Whether the offence poses a special social danger or menace to society;
2. Whether it causes more alarm to the public e.g. by being too prevalent;
3. Whether it causes great social disapproval; and
4. The degree of wickedness involved in the commission of the offence.
 
• On the other hand, the circumstances of the offence include the manner in which the offence
was committed, against whom it was committed, the actual loss or injury inflicted on the
victim and the prevalence of the offence. 
 Gravity of the Offence
•  The third consideration is the circumstances of the offender i.e. social
position and character.
• The total sum of the above factors adds up to the gravity of the
offence.
• It is only after taking into account all these factors that it is possible to
make a reasonable determination of the gravity of an offence.
• These considerations enable the court to determine the gravity of the
offence by comparing it with other imaginable instances of the same
or related offence.
 Principle of Equality
•  The principle of equality in sentencing is that other things being equal, offences of equal
gravity deserve sentences of similar severity.
• If any differentiation is to be made between two offenders convicted of the same offence, it
must be on the basis of other factors, which are recognized as legally relevant.
• Differentiation on any other basis, say on race, sex or wealth, is discrimination and is a wrong
principle of sentencing.
• 
• Therefore, where co-offenders are convicted for committing the same offence, they should
receive similar or comparable sentences, unless there are valid reasons for awarding different
sentences.
• The principle of justice that like cases should be treated alike is fundamental and someone
who has received a sentence of imprisonment whereas his/her co-accused was fined, or a
much heavier prison sentence than received by his/her co-accused is not likely to be readily
perceptive of differences.
 Principle of Equality
• There is need to avoid the offender and the public entertaining a sense
of injustice. The offender will not benefit much if he/she harbours a
sense of injustice, and the public’s respect for the criminal law will
diminish if it is thought to be unjustly administered.

• The principle of equality has the effect of standardizing sentences

imposed on offenders convicted of similar crimes. The result of this is
to establish a measure of uniformity and consistence in the sentencing
process.
 Mitigating Factors
•  Mitigating factors are circumstances of the offence and of the offender which reduce the
seriousness of the offence and consequently the severity of the punishment.
• These mitigating circumstances may indicate the blamelessness of the offender or his/her
reformability.
• Some of the factors which show the blamelessness of the offender are ignorance of the law,
good motive, drunkenness, necessity, loss of self-control and lesser degree of participation.
• Factors which indicate the reformability of the offender include youthful age, absence of
previous record, plea of guilty, show of remorse, and co-operation with the police.

• We shall briefly examine each of these factors.

 Mitigation of Penalties
•  Courts have been given power to impose less severe punishments than the maximum
provided in the relevant penal provisions.
• Hence, a person liable to imprisonment for life or any other period may be sentenced to
any shorter term [S.178(1) of M.C.A., and S.108(1) of T.I.A.] and a person liable to
imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment.
[S.178(2) M.C.A., and S.108(2) of T.I.D.].
• 
• However, these provisions do not apply where the sentence to be imposed is fixed by
law by providing a mandatory, maximum or minimum sentence (S.121 T.I.A.).

• In such cases the court has no discretion to mitigate sentences. Examples of this
limitation on the discretion of the court are found in Section 268 of the Penal Code Act.
It provides for a minimum sentence of imprisonment of three years on conviction.
 Mitigation of Penalties
•  Under the Children’s Act, Cap 59, young offenders (i.e. below the age of eighteen, can only
be tried in a Magistrate’s Court or in the High court in the following circumstances:
• In a Magistrates’ Court where a child is charged jointly with an adult i.e. a person above the
age of eighteen years – (S.104 Children Act).
• 
• In the High Court, where a child is jointly charged with an adult for an offence for which only
the High Court has jurisdiction. [S.105(1) Children Act].
• 
• In the case of a trial in the High Court, where the child is found guilty, the High Court shall
remit the file back to the Family and Children’s Court for an appropriate order – S.105(2)
Children Act.
 Mitigating Factors
•  Ignorance of Law: Ignorance of law is not a defence to a criminal charge unless knowledge
of the law is expressly declared to be an element of the offence. (Section 7 of the Penal
Code). Public policy presumes every person to know the law. But it is well known that not
everyone knows all the laws of the land which govern them. Therefore if a person commits an
obscure offence of which he/she was not aware, this may afford him/her a ground for the court
to be lenient because of the reduced moral blame-worthiness.
• 
• Good Motive: Motive is generally an irrelevant consideration in determining criminal
responsibility [Section 9(3) of the Penal Code]. But it is sometimes considered when
determining the intention of the accused in committing the crime. When an offence is
committed with a good motive, this may be a mitigating factor. For instance where a wife
commits perjury to save her husband, or where a person drives a motor vehicle without a
license to take a child to hospital to save its life.
 Mitigating Factors
•  Necessity: Necessity is also not generally speaking a defence to a criminal charge. But in
certain circumstances, it may be a mitigating factor. The accused may commit the offence
because he/she is faced with two conflicting duties, one to obey the master or to survive. For
instance, a driver may be forced to drive a vehicle, which is in dangerously mechanical
condition (DMC) on instructions of the master for fear of losing the job. If he/she is convicted
of the offence, one may plead necessity, as he/she had no better alternative than to breach the
law.
• Drunkenness/Intoxication: Drunkenness or intoxication does not constitute a defence to a
criminal charge unless it amounts to insanity (S.13 of the Penal Code). It can be taken into
account in determining whether the accused had a specific intent required in the commission of
the offence. However, drunkenness may be a mitigating factor where the offence is committed
under influence of drink not amounting to insanity. The degree of blameworthiness is reduced
unless there is premeditation followed by drink to give one “Dutch” courage to commit a crime.
 Mitigating Factors
•  Loss of Self-Control: A person who commits a crime when he has lost his self-control deserves leniency because
of the reduced moral blameworthiness. Self-control may be lost through intoxication, provocation, sudden
temptation, emotional distress etc.
• 
• Provocation is not a general defence to a criminal charge except in murder cases where it reduces it to
manslaughter. But an offender who acts under the sudden provocation offered by the victim deserves some
leniency for committing a provoked offence. The reverse is also true that where one commits an unprovoked
crime, this constitutes an aggravating circumstance. Where a person commits an offence under strong temptation,
this may be taken as a mitigating factor if it is clear that he/she could not have otherwise fallen into crime. Mental
disorder causing emotional distress and other mental deficiencies may lead a person to commit a crime. Sometimes
the defence of diminished responsibility is available in limited cases like murder. But generally while such mental
deficiencies may not amount to defence to the crime committed, they may in appropriate cases provide mitigating
factors. A person who commits an offence under an irresistible impulse (a strong urge to commit a crime) may not
have a defence to the offence, but may have that factor taken into account as mitigating blameworthiness.
Similarly a person who attempts to commit suicide deserves to be treated leniently as such persons act under some
mental impairment
 Mitigating Factors
• Less Degree of Participation:
• Where the offence has been committed by several offenders, the fact that one of
them participated less in the commission of the offence or was merely persuaded
or tricked into the crime is a relevant mitigating circumstance in his favour.
• 
• Co-operation with the Police:
• Cooperation with the police sometimes indicates a degree of acceptance of
participation in the crime. It assists the police in carrying out their investigation of
the offence. It is a factor in favour of the offender and it is in the public interest
that he/she should receive an allowance for leniency on this score to encourage
others to assist the police in their inquiries.
 Mitigating Factors
• Plea of Guilty:
• Where an accused person readily pleads guilty to the charge, and he/she is hereby
convicted, this is a valid consideration to take into consideration in his/her favour.
• A plea of guilty indicates acceptance of blame and normally reflects remorse on
behalf of the accused.
• This is an indication that the accused realizes his/her fault and may reform in
future. But a court is not entitled to take into consideration the fact that the
accused has chosen to plead not guilty because the accused is entitled to do so, as
of right if he/she chooses to do so.
 Mitigating Factors
• Good Previous Record
• The fact that an accused person is a first offender or has had a previous good record is a valid
mitigating factor. Courts are usually reluctant to send to prison first offenders or if they do so,
for long periods, unless the circumstances of the case compel them to do so.

• The courts aim at offering first offenders a chance to reform without the need for a long prison
sentence where they might mix with hardened criminals and learn better methods of committing
crime.

• On the other hand, the court should take into account the lapse of time after an earlier sentence
was imposed. This might indicate that the accused has been trying to go straight and therefore
requiring more opportunity for reformation.
 Mitigating Factors
• The Remand Period
• The fact that an accused person has been on remand for a long period is a mitigating factor. The
court is required to take into consideration the period the accused has been in custody pending
trial.
• Although the accused does not serve a prison sentence while on remand, it is clear that he/she is
kept more or less like a prisoner since much of his/her liberty and privileges are curtailed while
in prison custody.
The sentence of the court should therefore reflect this period, which is normally deducted from
the sentence when the court is determining the proper sentence. [See Article 23(8) of the
Constitution].

• While the consideration does not require mathematical calculation, the failure to reflect in the
sentence that due regard was had to the period of remand in custody will render the sentence
irregular.
 Mitigating Factors
•  The Age of Offender
• The age of the offender is a relevant mitigating factor in cases of extreme young
age and extreme old age. The general principle is that young offenders should be
given more treatment than punishment.
• Therefore young age is considered as providing lenient treatment to the offender.

• On the other hand, extreme old age is taken as a mitigating factor in that
generally, courts are reluctant to send a very old man or woman to prison.
• Such a man/woman may be in need of care just as a child.
 Sentences in cases of conviction of Several offences at
One Trial
•  Where a person is convicted at one trial of two or more distinct offences, the court may
sentence him/her for such offences, to several punishments prescribed for them which the
court is competent to impose.
• Each offence must have a separate sentence.
• Such punishments which consist of imprisonment shall commence one after the expiration of
the other, in such order as the court may direct, unless the court directs that such punishments
shall run concurrently. [S.175(1) of M.C.A.].

• In case of consecutive sentences, it is not necessary for the court to send the offender for trial
before a higher court, by reason only of the aggregated punishment, which is competent to
impose on conviction of a single offence. [S.175(3) of M.C.A.].
 Sentencing Co-accused
•  The M.C.A. or T.I.A. do not contain provisions regulating the sentencing of co-accused
convicted for committing the same offence.
• The general principle implicit in this absence of specific provisions is that no disparity in
sentences is justified unless there are special circumstances calling for different sentences.
Where all things are equal, the co-accused should be sentenced to the same punishment.
• Some of the considerations to be taken into account in sentencing co-accused persons are: 
1) In an offence which involved a great deal of planning, was one of the accused the brain, or
ring leader, or were all the accused roughly equal in degree of participation?
2) Were all the accused equal in age, intelligence, experience, etc.?
3) Was there any intimidation of one of the co-accused or was there one who was the tool or the
dupe of others? 
4) Did one of the co-accused show more remorse than the others, say by admitting his/her part in
the offence right away and by co-operating with the police?
 Sentencing Co-accused
• Where one accused jointly charged with others pleads guilty, he/she
should not be sentenced until after the trial of the others is concluded
(except where accused is to give evidence in the trial of the co-accused
in which case he/she should be sentenced first so as to avoid his/her
testimony being affected by his/her anticipation of its likely effect upon
sentence), when their respective roles and relative degrees of guilt can
be assessed.
 Sentences Cumulative Unless Otherwise Ordered
•  Thenormal rule is that sentences imposed are served cumulatively unless otherwise ordered by the
sentencing court.
• Where a person after conviction for an offence is convicted of another offence either before sentence
is passed upon him/her under the first conviction, or before the expiration of that sentence, any
sentence of imprisonment which is passed upon him/her under the subsequent conviction shall be
executed after the expiration of the former sentence, unless the court directs that it shall be executed
concurrently with the former sentence or any part of it. [S.192(1) of M.C.A., and S.122(1) of T.I.A.].

• But it is not lawful for a court to direct that a sentence of imprisonment in default of payment of a fine
or any part of it should be executed concurrently with a former default sentence imposed under
Section 192(c)(i) of M.C.A. or S.109(c)(i) of the T.I.A.

• Where a person is convicted of more than one offence at the same time, and is sentenced to pay a fine
in respect of more than one of such offences, then the court may order that all or any of such fines
may be non-cumulative.
 Sentence on Escaped Convicts
• When a sentence is passed on an escaped convict, such sentence, if a
fine or corporal punishment, shall take effect immediately, but if it is
of imprisonment, it shall not take effect until the convict, when
recaptured, has served the period of imprisonment that remained
unexpired at the date of his/her escape from prison. (S.193 of
M.C.A. and S.123 of T.I.A.).