[2018] UGSC 88

### **1THE REPUBLIC OF UGANDA** IN THE SUPREME COURT OF UGANDA

### **AT KAMPALA**

Coram: (Mwangusya; Opio-Aweri; Buteera; Mugamba; Nshimye; JJS. C)

# CRIMINAL APPEAL NO. 29 OF 2016.

AKANDWANAHO NATHAN:::::::::::::::::::::::::::::::::: 10

#### **VERSUS**

### UGANDA::::::::::::::::::::::::::::::::::: <table> RESPONDENT

### **JUDGMENT OF THE COURT**

(Arising from the decision of the Court of Appeal delivered at Kampala on the 7^th November 2016, Coram: Hon. Mr. Justice Remmy Kasule, Hon. Lady Justice Solomy Balungi Bossa and Hon. 15 Lady Justice Hellen Obura; JJC/JCAJ.

### **Introduction**

$\mathsf{S}$

This is a second appeal arising from the decision of the Court of Appeal in Criminal Appeal No. 727 of 2017.

- The appellant was charged with murder contrary to Section 188 and 20 189 of the Penal Code Act. It was alleged that the appellant on 29^th day of November 2001, at Kanyatete Village in Kasese District, murdered a one Mugabe Robert. The appellant was tried, and convicted. On the 16^th July 2004 he was sentenced to death. - The background of the appeal. 25

The evidence on record shows that the deceased Mugabe Robert was operating a motorcycle transport business in Kanyatete Village in Kasese District. On the 29^th November 2001, at Kanyatete Village, the deceased told Nshekanabo Richard (PW2) that the appellant had hired him to take him to a place called Karusandara. At around

9:00am on 27^th November 2001 Azizi Tirikwenda (PW3) found two $\mathsf{S}$ strange and suspicious people standing near the vicinity of Asaba School in Kasese Town. He (Azizi) decided to check their identities. On checking their bag he found a locally made knife. While he was still interrogating the two strangers, the deceased came along, carrying the appellant on a motorcycle. The appellant told the 10 deceased that the job he was calling him for was to carry the two strangers on his motorcycle. The deceased agreed to take them for shillings 6000/=. At around 9:30am, one Bwambale Kamulali (PW4) saw the deceased carrying two people on a motorcycle, one of whom was the appellant. 15

On the same day at around 10:00 am, Hamad Dolla (PW5) saw the deceased on his motorcycle at Karusandara Primary School heading to Kanamba village, which is on the way to Kanyetete. The deceased was carrying two passengers, one of whom was the appellant. At around 11am he (pw5) met the two men passengers pushing the deceased's motorcycle at Nkoko Trading Center.

Later in the evening, Hamad Dolla (PW5) received information that the deceased's motorcycle was at Hima Police Post. It was later discovered the following day, that the deceased had disappeared. The matter was reported to police. Pw2 and other motorcyclists 25 searched for the body of the deceased. Eventually they found it in the bush at Kanyatete Village. The body had been stabbed on the stomach, neck, head and the intestines were protruding. The appellant disappeared from Town. He reappeared on $2^nd$ December 2001. He was arrested and taken to the Police and thereafter indicted and tried for the offence of murder.

$\overline{2}$

The appellant denied any involvement in the murder of the $\mathsf{S}$ deceased. He stated that on 27^th November 2001, he went to visit his parents in Rushere, Mbarara District. He stated that he lacked money for transport until the 30^th November 2001, when his father gave him money and he returned to Kasese. Then on 2^nd December 2001, he was going to report to Police for his bond on another murder charge 10 when he was arrested by a policeman. He was descended upon and beaten up by a crowd of people. The Police rescued him and took him to the Police Station.

The trial judge believed the evidence of the prosecution and convicted the appellant. The appellant was sentenced to death.

Following the decision in Suzan Kigula and Ors V AG, Constitutional Appeal No. 3 of 2006, this case was referred back to the High Court for mitigation vide High Court Criminal session case No. 164 of 2014 where the sentencing judge reduced the death sentence to 37 years imprisonment.

Subsequently the appellant appealed to the Court of Appeal challenging the ruling of the High Court on grounds that it was an error for the presiding judge to impose a sentence of 37 years imprisonment which was manifestly harsh and excessive in the circumstances. The Court of Appeal in its decision reduced the sentence to 36 years imprisonment.

The appellant was dissatisfied with the Court of Appeal decision and lodged this appeal on only one ground;

1. The learned justices of Appeal erred in law and fact when they imposed a sentence of 36 years imprisonment on the Appellant,

which is deemed to be illegal, manifestly excessive in the $5$ circumstances of the case without taking into consideration the appellant's age and other mitigating factors before sentencing.

The appellant prayed this Court to allow the Appeal and for the sentence of 36 years imprisonment to be set aside, varied or 10 reduced.

# **Appellant's Submissions**

The Appellant's main contention was that the Court of Appeal failed in its duty to reconsider the factors raised by the appellant in the High Court while mitigating his sentence. He stated that the appellant was 22 years of age therefore sentencing him to imprisonment for 36 years denied him his only chance to reform.

He contended that the sentence was a violation of Article 28 (12) of the Constitution as amended. He stated that court did not consider the period the appellant spent on remand, that he was a first offender, a family man and a sole bread winner. He added that the 20 appellant was not given adequate time to prepare his defence/ mitigation since court convicted and sentenced him on the same day.

Counsel for the appellant relied on the case of Livingstone Kakooza

V Uganda, Supreme Court Appeal No. 17 of 1993 where the court 25 reduced the appellant's sentence of life imprisonment to 10 years imprisonment on account that it was excessive for a first time offender. He further submitted that in the case of Mbunya Godfrey V Uganda SC No. 04 of 2011, this court reduced the appellant's

$\overline{4}$

sentence from death to 25 years imprisonment on account of him $\mathsf{S}$ being a first offender.

Counsel prayed court to set aside the sentence or substitute it with a lesser sentence.

## **Respondent's Submissions**

In reply, counsel submitted that all issues pertaining to the legality of 10 the sentence which were the mitigating factors and the period spent on remand were considered by the Court of Appeal. He stated that the only issue in contention was the severity of the sentence which this court had no jurisdiction to adjudicate upon. He quoted Section 5(3) of the Judicature Act and the case of Jamada 15 Nzabaikukize Vs Uganda SCCA No. 1/ 2015 where this court dismissed the appeal in the event that the only unresolved ground was challenging the severity of the sentence.

### **Consideration:-**

This appeal is for review of sentence. The same ground was argued 20 in the Court of Appeal. It is trite law that an appellate Court should not interfere with the discretion of a trial Court in the determination of a sentence unless it is established that the trial Court acted on wrong principle or overlooked a material factor or the sentence is illegal or manifestly excessive; see Kyewalabye Benard V Uganda 25 Supreme Court, Criminal Appeal No. 147 of 2001.

In sentencing the convict, the learned trial Judge in mitigation and re-sentencing of the convict stated as follows:-

$\mathsf{S}$

"In sentencing the convict the following factors/reasons are $\mathsf{S}$ considered:-

1. ....................................

2. All the mitigating factors submitted by both counsel for the parties.

- 3. The Constitutional (Sentencing Guidelines) for Courts of Judicature (Practice) "Directions, Legal Notice No. 8 of 2013 particularly part 1 of the 3^rd schedule. - 4. For special emphasis, I have also considered the following factors:- - The convict was convicted of murder which offence carriers I. a maximum sentence of death. - The offence of murder is rampantly committed in Uganda II. hence need to pass appropriate sentences against the offenders. - From the facts of the case and the way the deceased was $\mathbf{H}$ killed, the deceased suffered a brutal death. The actions of the convict in relation to the murder of the deceased fall under paragraph 20 of the Sentencing Guideline (supra). The submission of counsel for the prosecution brought out very well the aggravating factors which put the case in the rarest of the rare cases. - I have also considered the Prison's report, social inquiry IV. report and the pre-sentence reports of the convict and I have no doubt that the convict has the capacity to reform.

- $V.$ The convict is a first offender. - VI. The convict spent about 3 years on remand before conviction which period I have put into consideration in passing the sentence against the convict".

In the result and for the reasons given herein above in this ruling, the convict deserved the death sentence. However, owing to the 10 applicable law, this Court has discretionary Powers to pass a sentence of imprisonment on the convict. In the circumstances of this case and considering the mitigation factors presented by both counsel for the parties, I make a finding that the convict deserves an appropriable imprisonment sentence. 15

This taking into account the 3 years period the convict spent on remand before conviction. I would have sentenced the convict to 40 (forty) years imprisonment, but I deduct the said period the convict spent on remand before conviction. I therefore sentence the convict to 37 years imprisonment from the date of conviction".

On appeal, the Court of Appeal held as follows:-

"We have evaluated the record of proceedings of the sentencing Judge as well as the trial record and judgment. We have also carefully considered the submissions of counsel for both sides. From the indictment, the appellant was 23 years old when he committed the offence. The learned sentencing Judge should have taken this into account.

However, the appellant killed the deceased after tricking him through hire of his motorcycle.

$7$

$\mathsf{S}$

- "He arranged for him to be killed so that he could materially benefit. $\mathsf{S}$ He brutally terminated the life of a hardworking and youthful member of society. Taking all the mitigating and aggravating circumstances into account, we sentence the appellant to 36 years imprisonment". - It is very clear from the above passage that the Court of Appeal 10 satisfied its duty in re-evaluating, re-considering the mitigating, aggravating factors, and came to the conclusion that the trial Judge had not taken into consideration the age of the appellant at the time of the offence. The Court then considered the above factor and other mitigating factors, and came to its conclusion that this 15 was a brutal pre-meditated murder, motivated by the desire to materially benefit from the deceased motorcycle. The Court then reduced the sentence from 37 to 36 years imprisonment. - In the circumstances, we cannot fault the Court of Appeal. Moreover, it is not true that the Court did not take into account the 20 period the appellant had spent on remand. The appellant had spent three years on remand before conviction and this was deducted from the would be 40 years incarceration to 37 years imprisonment. The Court of Appeal reduced this to 36 years after taking into account the age of the convict, which was 23 years at the time the $25$ offence was committed.

Further, in regard to the legality of the sentence we shall determine whether the sentence imposed exceeds the permissible range or sentence variation regarding the offence of murder. The guiding principles were enunciated in Kiwalabye Benard vs Uganda,

Supreme Court Criminal Appeal No. 143 of 2001 where the court set $\mathsf{S}$ down the following principles:-

"The appellate Court is not to interfere with the sentence imposed by a trial Court which has exercised its discretion on sentence, unless the exercise of the discretion is such that it results in the sentence imposed to be so low, manifestly excessive as to amount to a miscarriage of justice or where a trial Court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle" (Emphasis added).

- In the instant case, the sentence imposed was 36 years. The Court of 15 Appeal arrived at the above sentence after re-considering the fact that the trial Court did not consider the age of the accused which was 23 years during the time the offence was committed. - The Court of Appeal further re-evaluated the mitigating and aggravating factors and reduced the sentence from 37 to 36 years 20 imprisonment. According to the Third schedule to the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013. Considering the circumstances of this case as outlined above, it follows that 36 years term of imprisonment imposed was within the sentencing range. We find the above sentence legal and not harsh 25 or manifestly excessive in the circumstances.

In the result, we find that this appeal lacks merit and it is accordingly dismissed.

$5$ $26^th$ November Dated at Kampala this.. day of. .2018. HON. JUSTICE ELDAD MWANGUSYA, JSC. $10$ ..... HON. JUSTICE OPIO-AWERI, JSC. 15 HON. JUSTICE RICHARD BUTEERA; JSC. $20$ HON. JUSTICE PAUL MUGAMBA; JSC. $25$ HON. JUSTICE AUGUSTINE NSHIMYE, JSC. 30