[1992] UGSC 11

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANA AT MENGO

# CRIMINAL APPEAL NO. 4/91

#### BETWEEN

| PETER ANYWAR | | APPELLANT | |--------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------| | | | | | | AND | | | UGANDA | | RESPONDENT | | | from<br>conviction<br>sentence<br>(Appeal<br>the<br>and<br>the High<br>Court<br>Uganda<br>Gulu<br>of<br>of<br>at<br>30th Nove<br>Justice<br>dated<br>Okello)<br>(Mr.<br>in H. C. C. R<br>Case No.<br>mber,<br>1990<br>73/90) | | | | | |

#### REASONS FOR ORDERS

The appellant was convicted on pleading guilty to Manslaughter, contrary to Section 182(1) of the Penal Code Act.and sentenced to 10 years imprisonment. The appellant appealed with leave against this sentence. At the hearing of the appeal, we dismissed the appeal and stated that we would give our reasons later.

The deceased met his death at the hands of the appellant after some hours of drinking. The appellant was attracted by the deceased1s sister, and made indecent advances. The deceased remonstrated with the appellant and asked him to behave like a gentleman. As the appellant was in a militia and armed with a gun, the deceased walked away. But the appellant followed the deceased and challenged him because the deceased had tried to protect his sister. The appellant then shot the deceased dead.

The appellant submitted that the learned trial Judge had erred in not taking into account the mitigating factors in the case.

The learned Judge observed that "the Court must take into account all КŁ. the mitigating pleas", and all $\ell$ more so because the appellant had pleaded guilty and saved the Court's time. There was also the fact that the appellant had been one year and three months in remand. The learned Judge had noted the previous friendship between the appellant and deceased. We take it that from the learned Judge's general phrase was comproved sing all mitigating factors, that he realised that the appellant was a first offender and that he had fairly heavy family commitments. His age is not stated, but with five children he was certainly a mature man. Finally it was noted that the appellant had offered to pay blood compensation under the Acholi custom.

It does not appear that any miscarriage of justice occurred under this ground of appeal.

The second ground was that the appellant's sentence was manifestly harsh. The point here seems to be that the learned Judge considered that the sentence must adequately and accurately reflect the disapproval by the majority of the public of the offence with which the appellant is convicted. He said that First of all the case approximated to murder, but for the technicality of intoxication, negativing the necessary malice aforethought to in order to constitute the offence of murder. Then the learned Judge assumed that the public of that region greatly detest and denounce the misuse of a gun by a public person; since the gun had been given to the appellant for protecting defenceless people. The appellant, moreover, should not have taken his gun to a drinking party.

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It was submitted that the learned Judge was overwhelmed by his conception of the public'^s opinion*f*when there was no evidence to support it.

With respect, it is unfortunate to downgrade so important a defence It is a fundamental matter bearing on the intention of an accused, and separates this sort of crime from tendencies towards absolute offences. It is a defence based on well-known human conditions or perhaps failings, and it bears the stamp of understanding human beings warts and all. It would be a pity to place any criminal defence in the pejorative class of technicality. as intoxication to the level of a mere technicality.

a in balance with the But with respect, it is unwise to stray too far into what is deemed to be the public attitude in a region, especially when dealing with what is presumed to be the view of the ''majority". The facts of the case are sufficient in themselves. It was right to point out that the appellant should not have taken his gun to a drinking party. It is quite correct to say that the gun deceased. That is generally deterred. However, it was right, ofcourse, to weigh the mitigating factors with *a* the public aspect of crime, and it is correct to say that/ sentence is should have been used to protect people, and not to kill a man, when through—drink the assailant was thwarted in hiSyamorous advances, by the so anti-social an action, that it must be Erie puDiic aspectox CLXine,aim xuxs tu say tuay matter for the discretion of the Court, a discretion to be exercised judicially on sound principles, bearing both the public features of the crime personal attribution of the offender.

Looking at the facts afresh in ourselves in the light of the circumstances of the case, we were still not persuaded that the sentence imposed was manifestly severe. We thought that on the whole the learned

personally and the public factor of the misuse of a gun by a public figure. Shorn of certain sentiments, nevertheless, the sentence was not manifestly severs^ and accordingly we dismissed the Appeal. ⁷ Judge came £a reasonable balance between the circumstances of the Appellant

Delivered at Mengo this day of <-71992

S. W. W. WAMBUZI CHIF JUSTICE

& A. H. JUSTICE OF THE SUPREME COURT

H. G. PLATT JUSTICE OF THE SUPREME COURT