[2023] UGCA 23

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBALE

#### CRIMINAL APPEAL NO. 905 OF 2014

(Coram: Obura, Bamugemereire & Madrama, JJA)

BUL0L0 REUBEN) APPELLANT

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#### 1.0 VERSUS

#### UGANDA} RESPONDENT

(Appeal from the judgment of the High Court Kawesa, J at Mbale delivered on /0h September 20/4 in Criminal Session Case No 55 0F 20/2)

## JUDGMENT OF COURT

The appeItant and 4 others with other suspects who were at Large at the time of the High Court trial were charged with 1 count of murder and ⁷ counts of aggravated robberies whereupon they pl'eaded not guil.ty and were tried On count 1 the appeILant and 4 others were charged with the

- 20 offence of murder contrary to section 1BB and 189 of the Penal Code Act. It was aLl'eged that the appel.l.ant and 3 others on the 11th day May 2011 at Nasasa viU.age in Mbal.e District murdered Wanambisi Geoffrey. 0n counts 2 to B, appellant and others were indicted of aggravated robberies contrary to section 285 and 286 (2) of the PenaL Code Act. lt was atLeged - that on the 1lth day of May 2011 at Nasasa viLLage in Mbate the appellant and 4 co-accused and others at l'arge robbed Mafabi Francis, Mafabi Abasa, Mafabi Charles, Weteya Keneth, Kitutu Fred, Nakito PhiLipo and Wanyere lsaac of various items and at the time of the robberies immediately before or after used deadLy weapons to wit a gun and ^a cutlass (a panga) against the victims of the robberies. 25 30

0n count 'l of murder the appellant and another were found guitty and were convicted and sentenced to 15 years' imprisonment. 0n Count 2, Count 5, Count 6 & Count B the appeltant and another were found guil.ty and convicted of aggravated robberies and were sentenced to 2 years' imprisonment on each count and ordered to pay compensation of

50,000/= to each of the victims of the robbery on counts 2,5,6 and B. The 35

⁵ co-accused of the appeL[ants particutarly 43 and A,4 were acquitted on al. L the counts and set free.

The appeltant was dissatisfied with the decision of Hon. Justice Henry ^I Kawesa deLivered on the 1Oth day of September,20lh appeated to this court with Leave of court against sentence onLy together with the order 10 of compensation. The soLe ground of appeaI is that:

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- 1. The [earned trial judge erred in [aw and fact when he passed ^a harsh (sentence against the) appellant of 15 years' (imprisonment) on one count of murder and 2 years for each count 2,5,6 and B and ordered that to (sic) 2 years have a consecutive impact. - 1s At the hearing of the appeaL, the respondent was represented by the learned Assistant DPP Mr. A[ex Ojok whil.e the appetlant was represented by the learned counseL Ms Faith Luchivya on state brief. The appellant was present in court. With Leave of court the time was enl.arged to fil'e the memorandum of appeal out of time and the memorandum of appeal 20 on record was vaIidated. SecondLy [eave was granted for the appeaI to - proceed against sentence only under section'132 (1) (b) of the TriaI on lndictment Act cap 23. The court was addressed in written submissions and judgment reserved on notice. - The appel.l.ant's counseI submitted that the learned trial. judge had the 2s discretion to pass a fair sentence but in the circumstances of the sentence imposed was harsh. She submitted that it was at the discretion of court to order a concurrent sentence. She prayed that the court atlows the appeal. and varies the sentence of the High Court. The Appetlant's counsel reLied on Bandebabo Benon Vs Uganda; Crim Appeat No. 319 of - 30 2014. ln that appeat, the appellant had been convicted of murder and sentenced to 35 years' imprisonment whereupon he appeaLed against sentence only on the ground that it was a harsh and excessive. The court found that the sentence of 35 years'imprisonment was neither harsh nor excessive in the circumstances where the appeL[ant was convicted of - 3s murder of his wife in the manner he did. However the court found that the learned triaIjudge had tgnored an important mitigating factor that the appellant was a first offender. The appeal was partialLy allowed and sentence reduced to 30 years' imprisonment.

⁵ The respondents counsel opposed the appeaL and submitted that an appellate court can onLy interfere with a sentence imposed by a triaL court in very Limited circumstances. He referred to Nashimolo Paul KiboLo Vs Uganda; Criminal Appeat No 26 of 2017 where it was heLd that an appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which the judge exercises his or her discretion. lt is therefore the practice that as an appetlate court, the Court of Appeal wil'L onl.y interfere with the discretion of the sentencing judge where the sentence passed is iLlegaI or where the court is satisfied that the sentence imposed by the triaI judge was manifestLy so excessive as to amount to an injustice. With reference to the submissions of the appettant's counse[, the respondent's counseL submitted that the appellant had brought nothing before the court to justify interference with the sentencing discretion of the triaLjudge. 10 15

# Consideration of appeaI

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This is an appeaL against sentence onl'y with the leave of court under section 132 (1) (b) of the TriaL on lndictment Act. The grounds upon which court may interfere with sentence is very Limited. 20

The basis for setting aside a sentence imposed by a trial court were generaLLy set out by the East Af rican Court of AppeaL in Ogalo s/o Owoura v R (1954) 21 EACA 270. ln the appeaL, the appeLtant appeaLed against ^a sentence of 10 years' imprisonment with hard Labour which had been imposed for the offence of mansLaughter. On the relevant principLes to 25

interfere with sentence, the East African Court of AppeaL heLd that:

The principtes upon which an appettate court wi[[ act in exercising its jurisdiction to review sentences are firmty estabtished. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appetl.ant they might have passed a somewhat different sentence and tt woutd not ordinarity interfere with the discretion exercised by a trial Judge untess as was said in James v R, (1950) 18 EACA 147,"iitis evident that the Judge has acted upon wrong principte or overtooked some materia[ factor". To this we woutd atso add a third criterion, namety, that the sentence is manifestty excessrve in view of the circumstances of the case 30 35

An appropriate sentence shouLd be proportionate to the offence with the gravest offences attracting the most severe pena[ties and Lesser

⁵ offences in terms of aggravation attracting less severe penaLties. Courts have also added another principLe of consistency in terms of equaLity before the law so that offences committed under simiLar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appeltate courts are a relevant guiding I

lr

^factor. 10

> The appellants counsel had rel.ied on Bandebabo Benon Vs Uganda; Crim Appeat No. 319 of 2014 in support of the appeal but we do not see how relevant the decision is to the facts of this appeal or how it helps the appeLLants appeaL. The first ptace, in that case, there was one count of murder whereupon the appeltant was sentenced by the tria[ court to ³⁵

- years' imprisonment. ln this case, the appellant was sentenced to ¹⁵ years' imprisonment for murder. Secondty, the above decision had one count whereas in the appetlant'S case, there was not onl.y a count of murder, but several other counts of aggravated robberies. 15 - We noted that the appel.l.ant's counseI submitted that the sentences of two years each for the counts of robbery ought not to run consecutively but gave no basis for such a submission. Sentences of imprisonment imposed in trial.s by the High Court are governed by section 122 of the Trial. on lndictments Act, in cases where there are several counts of 20 - offences or severaL offences on which a prisoner has been convicted. Section 122 of the RTA provides that: 25

122. Sentences cumutative untess otherwise ordered.

(1) Where a person after convrction for an offence is convicted of another offence, either before sentence 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 shatt be executed after the expiration of the former sentence, untess the court directs that it shal.[ be executed concurrent[y with the former sentence or of any part of it; but it shatl" not be lawful for the court to direct that a sentence of imprisonment in defautt of payment of a fine shatl be executed concurrentty with a former sentence under section 110(c)(i) or any part of it.

(2) 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 those offences, then the court may order that al.l, or any of such fines may be noncumutative.

- Under section 122 (1) of the TIA, the legislature has provided for $\mathsf{S}$ consecutive sentences where several offences are committed and the accused is convicted on more than one count or of more than one offence. The default position is therefore the serving of the sentences for various offences consecutively. For the court to otherwise order a concurrent - sentence, reasons have to be given. The appellant has advanced no $10$ reasons or grounds for serving the sentences concurrently. The court is bound to impose the sentence as stipulated in the law unless for good cause, it orders that the sentences have to be served concurrently for two or more counts on which the convict was convicted. The matter is not only at the discretion of the trial judge which discretion has to be 15 - used judicially but also as dictated by the law.

We accept the submissions of the respondent's counsel that no grounds have been advanced for the submission that sentences for the 4 counts have to be served concurrently. In the premises, the trial judge did not err in law or in principle to impose sentences to be served consecutively

and we find no merit in the appeal. We hereby dismiss the appeal.

Dated at Mbale $18^{\prime}$ day of $18^{\prime}$ day of $2022$ $2022$

Hellen Obura

Justice of Appeal

Catherine Bamubemereire

Justice of Appeal

Christopher Madrama

Justice of Appeal

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