[2024] UGCA 89

10

# ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Kiryabwire, Mulgagonja, & Luswata, JJA)

# CRIMINAL APPEAL NO. 0316 OF 2OL7

#### BETWEEN

#### 1. ADRAMA WILFRED alias ABU 15

2. ATANDU MOSES alias OZEE:z: APPELLANTS

#### AND

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Judgment of the High Court sitting at Arua in Criminal Session Case No. OO36 of 2015 delivered by Stephen Mubiru J on O4lO7l2of 7)

### JUDGMENT OF THE COURT

# Introduction

1] This as an appeal from the decision of the High Court of Uganda sitting at Arua in which the trial Judge convicted the appellants of the offence of murder, contrary to Sections lBB and 189 of the Penal Code Act and sentenced them to 2l years and 4 months' artd 26 years and 4 months' imprisonment, respectively. It was stated in the indictment that on ll9l2Ol3, at Okokoro Trading Center in the Maracha District, the appellants unlawfully murdered Nyakuni Kamilo.

1 lJJL

- 2] The facts upon which the appellants were convicted were well related in the written submissions filed by their advocate. It was stated that on the night of 1"t September 2013 at around 9:00 P.ffi, the deceased together with his cousin, Asindu Dennis PW2, were riding their bicycles back home with Ayikoru Felicita a newly acquired wife of PW2, whom the deceased was carrying on the carrier of his bicycle. PW2 was follo\*ing them when they met the appellants among a group of about fourteen other youths returning from Okokoro Trading Centre in Maracha District. A1 pushed a log in between the frame of the deceased's bicycle, causing the deceased and the bride of PW2 to fall to the ground. Immediately, both appellants and the rest of the group joined in assaulting the deceased and PW2. The deceased was beaten to death while PW2 was beaten to unconsciousness. When PW2 subsequently regained his consciousness, he realized the deceased had been killed. He managed to find his way to Okokoro where he reported the attack to his aunt. The follo\*i.rg day at 9.0Oam, PW2 was taken to the Okokoro Police Post from where he identified the appellants as some of the people who attacked him and the deceased, which led to their arrest, indictment, conviction and sentencing, as abovementioned. - 3] The appellants being aggrieved with the decision of the High Court lodged an appeal to this Court premised on one ground set out in the memorandum of appeal as follows:

Tho;t the leo;rned triql Judge erred in law and fact uhen he sentenced the appellants to imprisonment of ²⁷

2 u)L

t

# ⁵ gears and 4 montls and 26 gears and 4 months' respectiuelg, uthlch sentence is harsh qnd excessiue ln the circumstances.

# Representation

4l At the hearing of the appeal, the appellants were represented by Ms. Patience Daisy Bandaru while the respondent was represented by Mr. Patrick Omia a Chief State Attorney. We allowed Ms. Bandaru's prayer to appeal against sentence only and likewise allowed the prayers to consider both counsels' written submissions as their legal arguments for the appeal. We have considered those submissions and a host of authorities to decide the appeal. 10 15

# Submissions for the appellant

5] In her submissions, Ms. Bandaru drew our attention to the settled position of the law that a first appellate court, will only interfere with a sentence imposed by a trial court if it is illegal or based on a wrong principle of law, or where a material factor is ignored. She also alluded to instances where it is shown that the sentence is harsh or manifestly excessive. She in that regard referred us to the Supreme Court decisions of Kizito Senkula versus Uganda, Criminal Appeal No. 24 of 2OO 1, and Kiwalabye Bernard versus Uganda, Criminal Appeal No. 143 of 2OO1 (unreported). Ms. Bandaru then argued that the sentences imposed by the tria-l Judge were not only harsh but manifestly excessive in the circumstances of this case.

3 uY-

a

I

- ⁵ 6l In support of her argument, Ms. Bandaru referred us to a host of decisions by this Court and the Supreme Court in which sentences of murder are given. She cited for example, Ndyomugenyi Patrick versus Uganda, SC Criminal Appeal No. 57 of 2OL6, where a death sentence was on remission to the High Court, reduced to 32 years. Both the Court of Appeal and Supreme Court further reduced the sentence to 20 years' imprisonment. Also that of Byaruhanga versus Uganda, CA Criminal Appeal No. 144 of 2O1O, where this Court reduced a sentence of 22 years to 20 years' imprisonment. Similarly, that of Manige Lamu versus Uganda, CA Criminal Appeal No. 384 of 2OL7, where this Court reduced a sentence of 44 years and 4 months to 20 years. Suffice to say, Ms. Bandaru made her choice of those authorities carefully to bring out the important principle of consistency in sentencing. She further pointed. us to peculiar facts in some of them, for example, the facts of age of the convicts, remorse, and other mitigating factors, and the fact that in some, the sentences were found to be manifestly excessive. 10 15 20 - 7l In her concluding submissions, Ms. Bandaru was alive to the fact that although the offences in the cases she relied on may not have been committed under circumstances similar to those before us, it was still incumbent on this Court as an appellate court, to maintain consistency or uniformity in sentencing. She then prayed that the Court interferes with the sentence of the High Court so as to bring it in conformity with the sentences for murder that she had sampled. In her view, since the appellants who offended when still youthful had spent 3 years and 8 months on

4 u^K

t

t

⁵ remand, the chances of their reform and re-integration into society were high. She suggested a sentence of 14 years.

8] In conclusion, Ms. Bandaru prayed this Court finds merit in the appeal and sets aside the manifestly harsh and excessive sentence imposed by the trial Judge and replaces it with a more lenient sentence of 15 years' imprisonment.

# Submissions for the Respondent

- 9l In response, Mr. Omia first adopted the background of the case as narrated by his learned friend. He in addition agreed with the authorities and legal principles she had relied on. However, he did not agree with the submission that the sentences given were manifestly harsh or excessive. He argued that before sentencing, both the appellant and his counsel were given an opportunity to make a submission, and the trial Judge then considered what was presented in mitigation. In his view, the Judge meted out varying terms of sentences in a carefully considered sentencing ruling, excerpts of which he quoted. He drew our attention to the fact that when deciding on the sentences, the Judge considered previous authorities as well as the sentencing guidelines and in addition, explained why the 1"t appellant attracted more leniency. - 10] Mr. Omia also briefly alluded to the consistency principle and argued that the sentences here were in range with sentences handed down in authorities quoted by the appellant's counsel. He also provided previous decisions in which this Court and the Supreme Court reduced sentences for murder to sentences ranging from 25 to 30 years' imprisonment. Those included for

7r\*\* fuiL

t 5

⁵ example in Kisitu Mahaidin versus Uganda, SC Criminal Appeal No. 66 of 2o15, Mbunya Godfrey versus Uganda, SC Criminal Appeal No. 4 of 2O11 and Mboinegaba versus Uganda, CA Criminal Appeal No. 511 of 2OL4. He concluded then that the trial Judge rightly exercised his discretion and that neither of sentences was harsh or excessive. He urged this Court not to interfere with the sentences and instead dismiss the appeal. L0

- 111 We have had the opportunity to carefully study the record of appeal and consider the submissions of both counsel. We have also perused the relevant laws and authorities cited to us plus those not cited but which are relevant to the issues under consideration. We are alive to the duty of this Court as a first appellate court to review the evidence on record and reconsider the materials before the trial Judge, and make up our mind not disregarding the judgment appealed from but carefully weighing and considering it. See Rule 3O(1) (4 of the Judicature (Court of Appeal Rules) Directions, S.f 73-70. 15 20 - I2l This appeal is premised on only one ground that faults the learned trial Judge for passing manifestly harsh and excessive sentences against the appellants, and thereby occasioning a miscarriage of justice. The thrust of Ms. Bandaru's submissions appear to be that the Judge did not appreciate the mitigating factors, especially the appellants'youthful age, and that this Court needs to consider the consistency principle when re-evaluating the sentence. Her colleague did not agree. He argued conversely that the Judge gave

6 uu<

// v' a well reasoned ruling after giving all concerned parties an opportunity to address him during the allocution proceedings. We have confirmed from the record that each counsel and the two appellants were allowed to submit during the allocution proceedings.

13] The well settled position of law on the reasons this Court can 10 interfere with the sentence imposed by the trial court have already been well articulated by both counsel in their respective submissions as summarised above. We note that in arriving at his decision, the Judge made a rather lengthy ruling, in which he first summarised the submissions of both parties, before giving reasons for his decision. We shall not reproduce the ruling but instead extract excerpts of it that we believe addressed much of what Ms. Bandaru complained was never addressed. The trial Judge stated in part, as follows;

> "The convicts were found guilty of the offence of murder $c/s$ " 188 and 189 of the Penal Code Act after a full trial. . . *Sentencing is a reflection of more than just the seriousness of* the offence. The court at this stage, in sentencing multiple convicts at the same trial where the facts permit, may take into account the degree of culpability of each of the convicts. Degree of culpability refers to factors of intent, motivation, and circumstance that bear on the convict's blameworthiness......

During trial, court considers legal culpability of the convict including the convict's intentions, motives, and attitudes...... It is for that reason that the principle of proportionality *operates to prohibit punishment that exceeds the seriousness* of the offending behaviour for which the offender is being sentenced. It requires that the punishment must fit both the $\mathcal{H}$ .

Ixm

$\mathsf{S}$

$20$

crime and the offender and operates as a restraint on *excessive punishment as well as a prohibition against* punishment that is too lenient. The principle of parsimony on the other hand requires that the court should select the least severe sentencing option available to achieve the purpose or purposes of sentencing for which the sentence is imposed in the particular case before the court.

*Murder is one of the most serious and most severely punished* of all commonly committed crimes. The offence of murder is punishable by the maximum penalty of death as provided for under section 189 of the Penal Code Act. In cases of deliberate, pre-meditated killing of a victim, courts are inclined to impose the death sentence especially where the offence involved use of deadly weapons, used in a manner reflective of wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of the sanctity of life. This maximum sentence is therefore usually *reserved for the most egregious cases of Murder committed in* a brutal, gruesome, callous manner...... This case is not in the category of the most egregious cases of murder committed in a brutal, callous manner, I have for those reasons discounted the death sentence....... I consider a starting point of forty years' imprisonment. Against this, I have considered in respect of A1, the submissions made in mitigation of sentence and in his allocutus and thereby reduce the period to twenty*five years' imprisonment".*

*In respect of A2, I have considered the submissions made in mitigation of sentence and in his allocutus, more especially his* relatively youthful age and thereby reduce the starting point to thirty years' imprisonment. I therefore, sentence A2 to a term of imprisonment of twenty-six (26) years and four (4) *months.*

Iron

$\omega$

$20$

$\mathsf{S}$

- ⁵ 14) It is apparent from the above excerpts of the record that the learned trial Judge did consider both the aggravating and mitigating factors in particular the 1"t appellant's remorsefulness and the fact that the 2"d appellant offended when young. He in addition explained and then applied the consistency principle by taking into consideration sentencing practices of cases of murder. He followed previous cases by this Court when confirming sentences of life imprisonment for convicts of murder. He in addition applied the sentencing guidelines and was as such prompted not to impose the maximum sentence of death. We therefore find no merit in counsel for the appellant's contention that the trial Judge fell short in some material aspect. 10 15 - 151 We shall now proceed to determine whether the sentence imposed against the appellant was manifestly harsh and excessive so as to cause a miscarriage of justice. To that end, we shall look at the range of sentences in similar offences with more or less similar circumstances. In so doing, we shall also be complying with the principle of consistency in sentencing that was well articulated by the Supreme Court in Aharikundira Yustina versus Uganda, SC Criminal Appeal No 27 of 2015. In that appeal, the Court held thus;

"It is the duty of this court while dealing with appeals regarding sentencing to ensure consistencg with ccses that houe similqr facts. Consistencg is o uitol principle of a sentencing regime. It is deeplg rooted in the rule of

9 </v'L

{

,l

⁵ lqw and requires that lous be applied with equalitg and without unju stifi ab le differe ntiatio n. "

- 16] In Anguyo Robert versus Uganda, Criminal Appeal No. 48 of 2OO9, the appellant then aged 29 years was convicted of the murder of his victim by hitting him with a hammer on his head, and sentenced 20 years'imprisonment. On appeal to this Court, the sentence was set aside and substituted with 18 years. The same Court has equally imposed more severe sentences. For example, in Bukenya versus Uganda, CA Criminal Appeal No. 5l of 2OO7, this Court confirmed a sentence of life imprisonment for a 36 year old man who used a knife and a spear to stab his victim. Similarly, in Sunday Gordon versus Uganda, CA Criminal Appeal No. 1O3 of 20lo,6, th..e Court of Appeal upheld a sentence of life imprisonment for a 35-year-old convict who was part of a mob which, armed with pangas, spears and sticks, attacked and killed an elderly woman. Yet in Byaruhanga Moses versus Uganda, CA Criminal Appeal No. L44 of 2O1O, this court considered a sentence of 20 years' imprisonment reformatory for a 29-year-old convict who drowned his seven months' old baby. - l7l The range of sentences for murder in the above cited decisions where the appellants went through full trials like in the instant case, is between 18 years to life imprisonment. Having considered all the aggravating factors, especially the brutal and careless manner in which the appellants murdered the deceased and the mitigating factors presented before the trial court, we do not find the sentences to be manifestly harsh and excessive as contended.

10 u<

I'

In any event, both sentences are well within the sentencing range of cases of a similar nature. In the premises, we find no valid reason to interfere with the learned trial Judge's discretion in sentencing the appellants in the manner he did.

Consequently, this appeal fails and it is accordingly dismissed and $18$ the sentences are upheld.

We so order. $\begin{array}{c}\n\begin{array}{c}\n\begin{array}{c}\n\begin{array}{c}\n\begin{array}{c}\n\end{array}\n\end{array}\n\end{array} \\ \begin{array}{c}\n\begin{array}{c}\n\end{array}\n\end{array}\n\end{array}$ 2024. Dated at Arua this.

GEOFFREY KIRYABWIRE

**JUSTICE OF APPEAL**

IRENE MULYAGONJA

**JUSTICE OF APPEAL**

EVA K. LUS

JUSTICE OF APPEAL

$20$

$\mathsf{S}$

$10$

30