[2024] UGCA 296

### THE REPUBLIC OF UGANDA

## THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

## [Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi & Margaret Tibulya, JJA] CRIMINAL APPEAL NO. 108 OF 2016

(Arising from the High Court Criminal Session Case No. 57 of 2014 at Fort Portal)

### BETWEEN

...................................... KARATUNGI RICHARD ....................................

### AND

UGANDA ...................................

(An appeal from the Judgment of the High Court of Uganda Hon. Mr. Justice Batema N. D. A. J delivered on 26^th April 2016)

### **JUDGMENT OF THE COURT**

### **Introduction**

The Appellant was indicted and convicted on his own plea of guilty of the offence of Murder contrary to Sections 188 and 189 of the Penal Code Act. Cap 120.

### **The Facts**

The Appellant on the 27^th day of October 2013 at Railway Quarter Municipal Council in Kasese District murdered Bakoko Swaibu. The Appellant and the deceased were boda boda riders staged at Kikonzo cell, Railway ward, central division in Kasese Municipality. On the fateful day, the Appellant had first quarreled with the deceased while threatening him to stop encroaching on his girl. That evening, as the deceased was walking along the road at Railway Quarters, the J. Corr Appellant knocked him down, and he fell on a rock injuring his skull.

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A postmortem done on 28^th January, 2013 revealed that the deceased had sustained open head iniury with multiple soft tissue injuries leading to death. The Appellant was upon examination on PF 24 on found to be 20 years old and mentally alert.

### Decision of the Trial Court

The Appellant pleaded guilty to the charge, whereupon the Trial Judge sentenced him to 20 years' imprisonment. Dissatisfied, the Appellant appealed against sentence only on the following grounds: -

That the Learned Trial Judge erred in Law and Fact when he sentenced the appellant to an illegal and manifestly harsh sentence of 20 (twenty) years imprisonment that did not put into consideration the remand period of the appellant and the mitigating factors.

At the hearing, the Appellant was represented by Counsel Bahenzire Angella and the Respondent by Nabisenke Vicky Assistant DPP and Ariyo Precious State Attorney DPP. The Appellant was in Court.

Counsel for the Appellant applied for leave to appeal against sentence only under Section 132 (1) (b) of The Trial On Indictment Act. The Court grant leave as requested as the Respondent had no objection.

The parties sought the leave of Court to adopt their written submissions as their legal arguments in this Appeal which leave was granted.

### **Powers of the Appellate Court**

This is the first appeal and the duty of the first appellate court is to reappraise the evidence and come up with its own inferences as per Rule 30(1) of the Judicature (Court of Appeal Rules) Directions S. I 13-10.

Further, we are alive to the duty of this court as a first appellate court as decided in the case of Kifamunte Henry v Uganda SCCA No. 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact. The basis for setting aside a sentence imposed by a trial court were generally set out in Ogalo s/o Owoura v R (1954) 21 EACA 270. In that appeal, the appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. The East African Court of Appeal held that: -

"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere review sentences are firmly established. The Court does not allow the Appellant they might have ground that if the members of the court had been trying the Appellant they might have N Clark

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passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe penalties and lesser 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 appellate courts are a relevant guiding actor..."

# In Kiwalabye versus Uganda Criminal Appeal No. 143 of 2001 (SC) this Court held: -

"The appellant court is not to interfere with 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 manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle"

This being a first appeal, it is this court's duty to reevaluate the evidence adduced in the lower court and arrive at its own conclusion. This duty has been restated in numerous authorities arising out of this court and the Supreme Court. See; Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga SCCA No. 77 of 2002 (unreported): thus:

"The legal obligation of the 1^st appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses.

Ground 1: That the Learned Trial Judge erred in Law and Fact when he sentenced the appellant to an illegal and manifestly harsh sentence of 20 (twenty) years Cestr imprisonment that did not put into consideration the remand period of the appellant and the mitigating factors.

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### **Submissions of the Appellant**

Counsel for the Appellant submitted that the 20-year sentence imposed by the trial judge was unlawful and excessively harsh. He argued that Ugandan law and established legal precedent require two key considerations when sentencing a convicted person. First, the time spent on remand which needs to be factored into the final sentence length. In this case, the Appellant spent two and a half years in remand, which the trial Judge did not take account for. Secondly the trial Judge failed to acknowledge mitigating factors that could justify a lighter sentence. These include the Appellant being a first-time offender, pleading guilty, his young age, and potential for rehabilitation.

Counsel for the Appellant cites past court decisions where similar sentencing errors led to sentences being overturned. Counsel prayed that the court to set aside the 20-year sentence due to its illegality and harshness, and impose a more lenient sentence that considers the remand period and mitigating factors.

### **Submissions of the Respondent**

Counsel for the Respondent submitted that the trial Judge did not err in sentencing the Appellant to 20 years' imprisonment. Counsel contend that the sentence was neither illegal nor manifestly excessive, and did not occasion a miscarriage of justice.

Counsel for the Respondent emphasized that the trial Judge considered all relevant factors, including the Appellant's plea of guilty, the gravity of the crime, and the need for deterrence. Counsel further argued that the sentence falls within the acceptable range for similar cases and that the mitigating factors do not outweigh the aggravating factors.

Counsel for the Respondent also addressed the Appellant's argument regarding the remand period. They acknowledge that the trial judge did not explicitly mention the remand period in the sentencing remarks but argue that this does not mean it was not considered. Counsel cited legal authorities that suggest the trial Judge's decision to impose a 20-year sentence as he did implies that the remand period was taken into account.

### **Findings and decision of Court**

We have reviewed the evidence before the Trial Court and the resultant judgment as we are required to do as the first appellate court.

### Excessiveness of the sentence

Article 23(8) of the 1995 Constitution of the Republic of Uganda provides as thus: -

part

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"When 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 completion of his or her trial shall be taken into account in imposing the term of imprisonment."

Section 15(2) of the Constitution (Sentencing Guidelines Judicature) (Practice Directions) 2013 provides that:

"The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account."

In the case of Twesigye Fred versus Uganda SCCA NO.43 of 2016:

"In the instant case, however, although the court of Appeal clearly sentenced the appellant before this court's decision in the Rwabugande case there was not even the slightest indication that in the sentencing process the court of appeal took into account the period spent on remand. Inevitably we allow the appeal and set aside the illegal sentence of 30 years."

### **Mitigation**

In the Record of Proceedings of the trial Court, Trial Judge while sentencing the Appellant held that: -

"Accused is sentenced to 20 years of imprisonment to be served at Luzira Upper Prison."

The sentence clearly has no mention of the mitigating factors put into consideration by the Trial Judge. It is settled law that where a sentence is imposed without having regard to the mitigating factors such sentence is considered illegal and an appellate court may set-aside the Sentence and Substitute the same with a lawful Sentence - see Wamutabanewe Jamiru versus Uganda, SCCA No 14 of 2001

Section 60 of the Constitution (Sentencing guidelines for courts of Judicature) (Practice Directions) 2013, empowers the defense counsel to bring to the attention of court the mitigating. factors which are open to the accused and they are as herein below presented

From the Record of Proceedings of Court of 26th April 2016, Counsel for the Accused, Mr. Kwikiriza Habert submitted that the accused (Appellant herein) is a first offender with a family-Caning Aming

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of young children, he has pleaded guilty and is willing to reform and therefore prays for lenience. Prosecution confirmed to court that the accused has no past criminal record.

From the record, it be deduced that the Appellant is a first time offender as there is no previous record of crime. It is a rule of practice that first offenders ordinarily do not receive a maximum sentence for the offence of which they have been convicted - see Ainobushobozi Versus Uganda, Criminal Appeal NO 212 of 2014.

During the trial, the Appellant pleaded guilty to the offence and therefore did not waste courts time and resources with a full trial. The plea of guilty was also a sign of remorsefulness on the part of the appellant. The Appellant was relatively young at the time of commission of the offence. He was aged 20 years according to the charge and summary of the case. In the case of Kabatera Steven Versus Uganda Criminal Appeal No. 123 of 2001, the court of Appeal held that: -

^o We are of the opinion that the age of the accused person is always o material factor that ought to be taken into account before a sentence is imposed ... [the appellant was a young offender .... failure to consider the age of the appellant caused a failure of justice."

#### Time spent on remand

The trial Judge in his sentencing remarks shown on page 8 of the Record of Appeal simply found as follows: -

"Accused is sentenced to 20 years' imprisonment to be served at Luzira Upper."

This finding shows that the period of 2 years and six months that the Appellant had spent on remand was not considered nor subtracted from the sentence.

The Appellant in this instant case was however sentenced on the 26^th April, 2016 before the landmark Judgment in Rwabugande Moses vs Uganda Supreme Court Criminal Appeal No. 25 of 2014, of March 2017 where it was held that: -

"It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision: consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused,",

As such, the legal regime at the time the appellant was sentenced did not require the trial judge to Close<br>N arithmetically reduce the period the appellant had spent on remand from the sentence.

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That notwithstanding, Article 23(8) of the Constitution (supra) makes it mandatory and not discretional for a trial judge to take into account the time spent on remand. Unfortunately, since this was not done, the sentence handed to the appellant was illegal for it failed to comply with the mandatory constitutional provisions highlighted above.

The said sentence is therefore quashed, we shall now proceed to sentence the Appellant afresh pursuant to Section 11 of the Judicature Act which provides as follows:

"For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

### Parity and consistency

In the case of Adama Jino Versus Uganda [2010] Criminal Appeal No 50 of 2006 CA 27, the Court of Appeal set aside the sentence of death imposed by the High court and imposed a sentence of 15 years' imprisonment, taking into account the fact that there was capacity for the offender to reform. Court held that: -

"It is our view that an opportunity for him to reform and turn into a good citizen should not be wasted."

In the case of Muhangi Moses versus Uganda, Criminal Appeal 072 of 2015: -

"...the range of sentence for murder where the accused pleads guilty is from 15 to 18. years."

Guideline 19 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 is to the effect that in a case where a sentence of death is prescribed as the maximum sentence for an offence, the court shall, consider the aggravating and mitigating factors to determine the sentence in accordance with the sentencing range.

In the recent case of **Tinkibyetaho Gadi v Uganda** Criminal Appeal 0246 of 2011 [2024] UGCA 257 (2 September 2024), the Court of Appeal overturned the 50-year sentence meted out to the Appellant, who convicted of two cases of murder. He was resentenced to 19 years and 8 months on each count.

Further in another recent case of Niyonzima Valenzi Criminal Appeal 274 of 2014, the Appellant had already pleaded guilty and had been 13 years in custody at the time of the Appeal. Near The Appeal Justices agreed that the High Court had not factored in the 13 years he served, and yet he had pleaded guilty. His immediate release was ordered.

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We now find that taking into account the mitigating and aggravating factors; and parity and consistency in sentencing discussed above; a fresh sentence 18 years in custody meets the ends of Justice. From this we must be deducted the period of 2 years and 6 months for which the Appellant has spent on pre-trial remand. Therefore, we give a final sentence period of 15 years and 6 months, effective from 26/04/2016, the date of his conviction.

In the circumstances we find merit in this ground.

### **Final Decision**

Having held as we have on the above issues Decide and Order that:

- 1. The Appeal is granted. - 2. The sentence of the High Court is set aside. - 3. The Appellant shall serve a term of 15 years and 6 months commencing from 26^th April 2016 the date of conviction.

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Dated at $16$ this day of $00t$ 2024.

Hon. Mr. Justice Geoffrey Kiryabwire

Hon. Mr. Justice Kibeedi Mutangula Muzamiru

Hon. Lady Justice Margaret Tibulya