[2022] UGCA 26

### ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASAKA

## CRIMINAL APPEAL NO. 458 OF 2016

# CORAM: (Cheborion Barrishaki, Stephen Musota, Muzamlru Klbeedl' JJA)

### 1, KASIBANTE ERICK

¹⁰ 2. KIBALAMA RONALD:::::::::::::::::::::::::::]::::::::::::::::::::::APPELLANTS

#### VERSUS

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

(Appeal from the sentence oJ the lligh Court oJ uganda at Mptgi beJore Hon. I-adg .intstice Hellen Obura d'ated 7 7th September' 2074 ln Criminal ¹⁵ Session Case No. O53 of 2OU)

#### JUDGMENT OF THE COURT

This is an appeal against both conviction and sentence arising from the decisionofOburaJ.wherebytheappellants,KasibanteErickandKibalama Ronald were convicted of aggravated robbery contrary to sections 285 and 285 20 of the Penal Code Act on imprisonment on each count 3 counts and each sentenced to 18 years The sentences were to run concurrently'

OnlSl03l2Ol2,AkirrezaAugustine,KwizeraVian'LubangaYakobo'Nkambo Yusuf, Busanana James and Sentabire John boarded Bismarck Bus Reg No' UAQ 643 from Kisoro to Kampala at 6:00pm' In the morning of 19 l3l2012'

as they approached Kampiringisa in Mpigi District' unidentified persons 25

⁵ armed with guns and pangas stopped the bus and ordered the driver to drtve off the main road which he did for about 1OOm and all passengers were robbed of their cash, Phones and disappeared in the bush. other valuable properties and the robbers

On 14rh l12l2012, the appellants were arrested after poiice tracked a phone which was robbed earlier from the passenger in another robbery which occurred on the night of IOl2l2012 at about 530 hours'

Upon interrogation by Nsangi police, the appellants admitted having roL'bed Bismarck Bus on lg l3l2O2l and got phones' foreign currency' cash' laptops from passengers. In their poiice Charge and Caution statements' they

admitted to have committed the offence' 15

They were tried, convicted of the offence of aggravated robbery on 3 counts and sentenced to 18 years imprisonment on each of the 3 counts' The sentences were to run concurrently'

BeingdissatisfiedwiththedecisionofthelearnedtrialJudge'theappealed tothisCourtagainstbothconvictionandsentenceonthefollowinggrounds; 20

^|. That the learned trtal iudge erred ln law and fact uhen she conulcted the appellants b@sing on retracted and repudtated charge and caution stdtements :,rlhlch occasioned a mlsca:rrlage ol Justlce'

2. That the leanred trlal Judge erred ln laut and Jact uhen she sentenced the first appellant to 18 (etghteen Yedrs lmprisonment ort count 7, 78 (etghteen gears irnprlsonment on count 2' 78 (eighteen geare lmprlsonment on count 5 to sette sentence concurrentlg' a:nd the second 25

2l

appellant to 18 (eighteen years imprisonment on count 118 (eighteen $\mathsf{S}$ years imprisonment on count 2, 18 (eighteen years imprisonment on count 5 to serve sentence concurrently which was manifestly harsh and excessive.

At the hearing of this appeal, Mr. Andrew Tusingwire appeared for the appellants on private brief and Ms. Amumpaire Jennifer, assistant DPP State 10 Attorney for the respondent.

Counsel for the appellants sought leave of court to validate the memorandum of appeal having it out of time on $9^{th}$ /3/2021 and the same was granted.

It was submitted for the appellants that no prosecution witnesses identified the appellants at the scene of crime because all witnesses testified that the 15 assailants were wearing, army uniform, caps, and face masks. That to prove the participation of the appellants, the prosecution and the trial judge relied on the charge and caution statements prove the appellants' participation and in convicting them respectively which statements had been exhibited as Exh 1 and Exh 2 which had been retracted by the appellants. He relied on S. 4 of 20 the Evidence act and Walugembe v Uganda SCCA no. 39 $\boldsymbol{\mathsf{of}}$ **2000(unreported)** for the proposition that where an accused person objects to the admissibility of the confession, on grounds that it was not made voluntarily, court must hold atrial within a trial to determine if it was or was not caused by any violence, force threat inducement, promise calculated to 25 cause an untrue confession to be made an in such a trial within a trail, as in any criminal trial the onus of proof is on the prosecution to prove that the ⁵ confession was made voluntarily' The burden is not on the accused to prove that it was caused by any of the factors set out in s 24 of the evidence act'

Counsel further submitted that the 2 statements for both appellants were recorded on the same day 2Oll2l2}l2 by the same person' PWs PTTI AIP Eweru John Michael. He contended that it's irregular for one police officer to record confessions from 2 suspects charged with the same offence as one cannotruleoutthepossibilitythatthepoliceofficercouldhavememorized thefactsofthecaseinabidtofabricateevidence. Hereliedonsewankambo

# Francis v. Uganda SCCA no.33 of 2OO1'

It was further submitted that there was delay in recording the statements' That the appellants were arrested on 13/ 12l2012 and the statements were recorded on20l12l2O12 by PTTI, Eweru Michael five days after they arrested' He contended that courts have disapproved the unexplained delay by the police to record charge and caution statements from appellants who nad admitted the offence and was already in custody He relied on RA 780664 Vlasswa and Ninsiima Dan v Uganda SCCA NO 48 and 49 of ¹⁹⁹⁷

# (unreported). 20

CounselfurtherSubmittedthatafterconductingatrialwithinatrial,thetrial judge never gave reasons why the statements were admitted in evidence' That she never ruled whether the statements were made voluntarily or not' He relied on seebu shumba Augustine and 2 others v, uganda GACA 358 of 2o|4forthepropositionthatarulingwithoutreasonsforthedecisionisa nullitv. He contended that the trial judge ought not to have relied on the

⁵ charge and caution statement and in the result no evidence exists on the record that tied the appellants to the commission of the offence'

15 20 On ground 2, it was submitted for the appellants that the Constitution sentencing guideiines for the courts of judicature practice directions item ⁴⁶ provides for consideration court should follow in determining a sentence for the theft related offence to include value of the property stolen' prevalence oi the offence in the community and any other aggravating factors' That item ⁴⁸ of the same guidelines provides for factors mitigating a sentence for theft relatedoffencesandamongtheseinclude,remorsefulnessandanyother factor court may deem relevant' He cited Jackson Zita v Uganda CACA No' ¹⁹ of 1995 for the proposition that an appeal against sentence of imprisonrrtent to succeed, the sentence must be illegal or the court must be satisfied that the sentence is manifestly excessive. He also cited Kiwalabye Bcrnard ^v Uganda SCCANO. 143 of 2OO1 cited with approval in Abaasa aad Anor ^v UgandacAcANosSoF2oloforprinciplestobefollowediftheappellate CourtiStointerferewiththeSentencepassedbythetrialcourt.

Counsel referred court to Kusemerersa and Anor v Uganda CACA 20 where the appellants had been convicted of aggravated robbery and sentenced to ²⁰ years imprisonment and on appeal while relying on mitigating factors court substituted their sentences to 13 and 12 years on the 1st and 2nd appellant respectively. In Adam Jino v Uganda CAC,A 201016150/ 2O1O UGA 27 the appellant had been convicted of 3 counts of aggravated robbery and sentenced to death. On appeal while relying on the appellant's mitigating factors substituted the sentence to 15 years imprisonment'

sl

5 Counsel prayed that the appellants' sentences of 18 years imprisonment on each of the 3 counts be substituted to a more lenient sentence'

In reply, it was submitted for the respondent that when the appellants werc arrested they admitted committing the robbery on 19 I 3 12012 and charge and caution statements were obtained from the appellants' He cited Festo Androa

Asenua aad another versus Uganda SCCA I 1998 as cited in Lutwama DavidvUgandasccA4of2oo2osancontendedthatthecasedirectedthe police to follow instructions set out by the chief justice in recording extra judicial statements in circular d'ated 2 I ³I 1973 until the police authority hands the appropriate rules. That instructions demand that a statement of the accused person be recorded in a language which he understands and an English translation thereof be made by the interpreter' That the officer who recorded the charge and caution statement recorded them in compliance with thesetprocedures. ThatthePTTI,EweruMichaeltestiliedthattheappellants hadsignedtheirchargeandcautionStatementsafterhehadreadthemback 10 15

to them in Luganda which they understood 20

Hecontendedthattheappellants'allegationsthattheyweretorturedand made to sign pre-recorded statement and that there correct plain statements had been torn and removed from the record yet the same were on the police fileandexhibitedasCTEXHland2wasalie. Thatitwasafteratrialwithin ^atrial that both statements were found to have been voluntarily made and admitted into evidence. That the narration of the events that took place during the robbery by the appellants and them making toy guns supports the

⁵ testimonies of the victims of the robbery i e That the robbers used guns and ordered them to handle over their properties including money, phones'

She further submitted that the appellants had no injuries as much as they ciaimed that they were tortured and both their medical reports ct Exh 3 and ⁴findings show that none of the appeliants had injuries'

- Counsel referred to Tuwamoi v Uganda l967 EA 84 for the proposition that CourtShouldacceptanyconfessionwhichhasbeenretractedorrepudiated or both retracted and repudiated with caution' and must before founding ^a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true' 10 - On ground 2, it was submitted for the appellant that the case of Kiwalabye Bernard v Uganda CACA 143 OF 2OOl as cited in Blasio Ssekawooya ^v Uganda CACA no tO7 of 2OO9 for instances under which an appellate court should interfere with the sentences of the trial court' 15

Counsel submitted that the passengers were traumatized while in eminent fearofbeingkilledandinadditionofbeingrobbedoftheirpropertiesthat include money and mobile phones' That the sentences of 18 years imprisonment on each count were lenient in the circumstances' 20

In the alternative, counsel cited Naturinda Tomson v Uganda CACA 13 of 2O1l where court sentenced the appellant to 16 years in a case ofaggravated robbery. She submitted that a sentence of 16 years imprisonment would suit the circumstances.

⁵ We have carefully studied the Court record and considered the submissions of both counsel.

The duty of this Court as the first appellate Court is to re-appraise the evidenceadducedattrialandmakeitso'\*'ninferencesonallissuesoflau'and fact. See Rute 30(lf ofthe Judicature (Court ofAppeal Rules) Directions' statutory Instrument 13-10; Pandya v R (19571 EA 336; and oryem Richard V Uganda, Supreme Court Criminal Appeal No'22 of 2Ol4'

This position was reiterated by the Supreme Court in the case of Kifamunte Henry versus Uganda, SCCA No. 1O of 1997; where it was held that the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.

On ground 1 of the appeal, the trial Judge is faulted for convicting the appellants basing on retracted and repudiated charge and caution statements which occasioned a miscarriage of justice'

DW 1 , the l"t appellant testified that he Iirst made a charge and cautton statement before a one Jimmy which was read back to him, he understood it and then put his thumb. But later he stated that the following day he was calledtotheofficeofJimmyandthereintherewasNdamanyireCharles,PTTl Eweru and Jimmy. That Charles and Jimmy slapped him and beat him That they had a panga and a short and forced him to tear his previous statement since therein he had denied committing the offence. That he was asked to sign

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⁵ another statement but he refused He stated that he did not make any statement before AIP PTT 1 Eweru That the one he made was torn'

DW2,2nd appellant testified that also testified and alluded to the same facts as the lst appellant that his statement he made' he was forced to tear it after being tortured and when asked to sign another he refused'

Both appellants alluded to the fact that they had spent about 5 days trt custodybythetimetheymadetheirStatementswhichwerelatertorn'That while doing their first statements they were not tortured' and there was no firearmandthattheydeniedevercommittingtherobbertherein. Thatthe subsequent statements stating that they admitted committing the robbery are unknown to them and they never made them nor sign them' 10

PTTl, AIP Eweru Micheal testified that the 2 appellants were brought to hrm to obtain a charge and caution statement. That he explained the charges to them in the Luganda language which they stated to understand' That thereafter, he read the statements back to them and they said that they understood it and they went ahead to sign the same and he also counter signed. That the environment where he obtained charge and caution statements was a comfortable, only two persons were inside and there were no fire arms. He further testified that he went ahead to explain sections ²⁸⁵ and 286(1) (b) of the penal Code Act to help them under the charge 20

PW6, D/AIP Ndamanyire Charles testified that he recorded the plain statements of both appellants where in the l st appellant admitted to the commission of the robberies that took place on 19th march 2Ol2 and ^lOtt' 1(

el

l12l2Ol2 but the 2'd appeliant denied' That he referred both appellants to PW5, AIP Eweru to record their charge and caution statement that the 1"t appellant accepted the offence while the 2nd appellant denied it' He latei Statedthatthe2ndappellantlateradmittedthathecommittedtherobberies 5

Therecordatpage52showsthatthelearnedtrialjudgeafterconductinga trial within a trial to determine the admissibility of the charge and caution statements. She made a ruling wherein she found the statements to have been made by the appellants voluntarily and admitted in evidence as prosecution exhibit 10

- The law relating to retracted and repudiated statements was considered in Tttuamol uersus Uganda, (1967) 7 DA 84, where Court stated that; a trial Courtshouldacceptanyconfessionwhichhasbeenretractedandrepudiated orbothretractedandrepudiatedwithcaution,andmustbeforefindinga convictiononSuchaconfessionbefullysatisfiedinallthecircumstancesof the case that the confession is true The same standard of proof is required inallcasesandusua]lyaCourtwillonlyactontheconfessionifcorroborated in some material particular by independent evidence accepted by the Court' But corroboration is not necessary in law and the court may act on ^a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession can only be true' 15 20 - Inthecircumstance,weareoftheviewthattheappellants'statementswere madevoluntarilyaftertheyweretransferredfromNsangiPoliceStation. PTTI AIP Eweru consistently told court how he conducted the proceedings No 25

10 ^I ⁵ threats or force was exerted on the appellants What can be discerned from therecordandtheanalysisofthelearnedtrialjudgeisthattheappellants evidence seemed well rehearsed and given in the same style and almost similar wordings' We find that the appellants voluntarily made their charge and caution statements wherein they admitted to having committed the 10 offence. There assertions that they were forced to tear their first madc statements and forced to sign new ones was an afterthought

It was also submitted for the appellants that there was delay in recording the charge and caution statements 5 days after their arrest and the statements were recorded on20l12l2Ol2. That the charge and caution statements were recorded on the same day 20l12l2Ol2 by the same person AIP Eweru John Micheal. He contended that this was irregular'

pw6,NdamanyirecharlestestifiedthatduringinterrogationbyNsangipolice station, the appellants accepted to have been involved in the robbery of 19th march 2Ol2 and that of 1O I 12 l2Ol2 of perfect bus company which occurred betweenRukungiriandKampala. ThatitwasonthatbasisthatNsangipolice communicated with Mpigi police to have the 2 taken to Mpigi Police station' That he picked the 2 appellants from Nsangi and took them to Mpigi on t9l 12l2or2.

Clearly, the appellant's statements were recorded on 20 I 12l2Ol2 only one day after they had been brought to Mpigi Police station' The case cited by the appellants RA 780664 Wasswa & Ninsiima Dan v Uganda Supra the Supreme Court disapproved of the unexplained delay by the police to record 25

## 11 ^I

- ⁵ ^acharge and caution statement from the appellant who had admitted the offence and was already in custody ln the instant case' the delay before they were transferred can be best explained having regards to the fact that they were transferred from one station to another to wit; Kireka' Nsangi and then Mpigi. We find that this did not cause a failure of justice to the appellant' - Regarding the issue of the same person recording both statements the appellants' relied on the authority of Sewankambo Francis and Others versus Uganda supra, where in the Supreme Court stated that; 10

,Apartfromthefailurebgthetiatjudgetoascertainfromtleappellants whether the confessions could be admitted' there are other unsatisfactory feahlresinthecasewhichaffecttheuoluntarinessoftheseconfessions. First, ue think that it is irregular for one Police Officer to record alleged confession statements from tLUo suspects charged uith the same offence aising from tb-e same incident. The temptation on the part of the policeman to use contents o'f statement to record. a subsequent statement cannot be ruled out' In the instant co"se, LUe note that A. I. P. Otim (PV.) recorded the alteged confession of the second. appellant after he had recorded a similar confession from the first appellant. 15 20

Third, all the appellants claimed' that theg were assaulted bg the police before theg uere made to sign or thumb-pint the alleged conlessions lndeed' the first

applicant claimed that he uas assaulted and injured on the lefi leg uthich was treated bg Dr. Ssekitoleko. Strangely enough, the proseantion did not adduce 25

⁵ anA euidence of medical examination in respect of all the appellants' 1Vo explanation utas giuen. "

It's clear from the evidence that both charge and caution statements of the appellants were recorded on the same d'ay 20l12l2Ol2 one after another and recorded by the same person. Indeed the temptations on the part of AIP Ewenr using contents of one statement to record a subsequent statement could not be ruled. we are bound to follow the above decision of the Supreme court'

Well as the confession statements were correctly admitted in evidence as having been voluntarily made' We disregard the appellant's charge and caution statements on the basis that they were recorded by the same person and we hereby expunge the same from evidence'

Whereas the charge and caution statements formed the basis to prove the appellants' participation, there were other pieces of evidence led by the prosecution to prove the appellants' participation in the robbery'

Wearealivetothefactthatnoneoftheprosecutionwitnessesidentifiedthe appellants at the scenes of crime as they testil-red that the assailants were wearing army uniforms, caps and face masks The available evidence is circumstancial. In Bogere Charles vs' Uganda, Supreme Court Criminal Appeal No. 1O of 1996 the Supreme Court held that before drawing an inferenceoftheaccused'sguiltfromcircumstantialevidence'theCourtmust be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt 20 25

13 I

10 15 CwlD/IPBazibuE. Johntestifiedthatwhenthel"tappellant.shousewas searched, foreign currencies exchange receipts for transactions carried out on |gl3l2ot2wererecoveredandtheseweremarkedasexhibitsC2(ii),C3and C4. Furthermore, CW1 Bazibu E John and CW 5 both testified that the appellants led them to a swamp where 2 pairs of army uniforms' 2 army caps' ²pairs of army shoes, two toy guns and a big torch used in the high way robberies were recovered. All these items and photographs of the appellants holding the toy guns were admitted in evidence and marked exhibits C6 and C7 respectively. This evidence corroborates the testimony of PWi Yusuf Nkambawhotestifiedthattheywererobbedby2assailantswhoworearmy uniforms, had caps and covered their faces with masks' In addition PW2 Kwizeraviane a victim of the robbery testifred that they were attacked by ³ assailants armed with a gun, knives, dressed in overalls' their faces covered with masks and had a big torch they were flashing'

20 CW3 Kiryowa George the LCl Chairman of Busembe Zone ' Maya Parish' NsangiSubcountyWakisoDistricttestifiedthathewitnessedthesearchof the l"t appellant's house and listed the items that were found there to wit; foreign currency notes, 2 phones, Bank of Uganda receipts and a paper for yamaha Motorcycle as in the search certihcate exhibited as c 1 (ii)' This evidence was corroborated by the testimony of CW4 D ICPL Inyani Methedio whowasalsopartofthesearchandwhomanagedtoidentifythel"tappellant from the dock as the person whose house was searched and items recovered therefrom 25

14 I

- ⁵ CW2 Salongo Lubanga John, the General secretary of Buloba Bunuwa Kapeka zone testified that he knew the 2'd appellant as one born and residing in Buloba and that he was present when the 2nd appellant's house was searched and items were recovered therefrom including; a photograph' a phone and ^a bigtorch. CwSD/IPSembumbetteEmmanuelfurthertestifiedthatheledthe search in the 2'd appeliant's residence in the appellant's presence where ^a black torch and a spice mobile phone for one of the victims were recovered andthereafteraSearchcertificatewaspreparedandadmittedintoevidence asExhibitCg. ThesetestimoniescorroboratePW2KwlzeraViane.stestimony thattheassailantshadabigtorchtheyusedforflashinglight. 10 - ItwasPWSMichealEweruandPW6D/AIPNdamanyireCharles-stestimoni' thatthephoneofoneofthevictimswastrackedleadingtothearrestofthe 2nd Appellant and the search of his house in which some of the stolen items werefoundaslistedinthesearchcertificatetoinclude;NokiaPhones'foreign currencies marked as Exhibit c5, 1 black berry phone, 2 sim cards of MTN and Ward. This was later corroborated by the testimony of a court witness cwl Bazibu E. John who testified that they tracked a phone of a victim of ^a subsequent high way robbery of a bus which took place at Nsangi which lead to the arrest of the 2na appellant whose house was searched and a search certificate was prepared with items that were recovered' 15 20 - PW6 D/AIP Ndamanyire Charles testified that during the interrogations' the appellants accepted participating in the robbery of the Bismarkan Bus and hewentaheadtorecordplainStatementsexhibitedasCl(i)andC2(i)which were never contested by the defence' 25

1s I

On the other hand, the appellants gave sworn evidence and maintained that they never participated in the said robberies

## In Simon Musoke vs. R [1958] EA 715 court held that

10 "lnacasedependingexclusivelyorpartiallyuponcircumstantialevidence' the Court must before deciding upon a conviction lind that, the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis than that of guilt'"

Furthermore, in Teper vs. R (2) AC 48O the court held:

"lt is necessary before drawing the inference of the accused's guilt from the 15 circumstantial evidence to be sure that there are no other co-exlstlng circumstances which would weaken or destroy the inference'"

TayloronEvidence(llthEdn.|atpageT4Statedthat,,theciranmstances must be such as to produce moral certaintA to the exclusion of euery reasonable doubt."

²⁰ Theabovepiecesofevidenceconstitutecircumstantialevidencewhichpoint to only one conclusion, namely that the offences had been committed and that itweretheappellantswhocommittedthem. Thecontradictionsthereininthe prosecutionevidenceinregardstothenumberofassailantsbeing3(PW1.s evidence) were minor and did not go to the root of the prosecution case' The issue on contradictions in the prosecution evidence being minor was ably traversed by the learned trial judge at page 174 of the record' In conclusion 25

⁵ therefore, the above evidence without any reasonable doubt proves that it's the appellants who participated in the robbery and there are no other coexisting circumstances which weaken or destroy this inference'

On ground 2 of the appeal, the learned trial judge is faulted for having sentenced the first appellant to 18 years imprisonment on countl' 18 years imprisonment on count 2, 18 years imprisonment on count 5 and the 2"4 appellant to 18 years imprisonment on count 1' 18 years imprisonment on count 2 and 18 years imprisonment on count 5 all sentences to run concurrently which was manifestly harsh and excessive' Counsel submitted for the appeiiants that they were still in their youthful age' both were remorseful and had families dependent on them which factors were stated during mitigation. Counsel contended that item 48 of the sentencing Guideiinesprovidesformitigatingfactorsforthefttoincluderemorsefulness of the offender and any factor court may consider relevant' 10 15

In reply, it was submitted for the respondent that the sentences of 18 years imprisonment on the respective counts for each appellant were lenient in the circumstances of the case. Counsel submitted that passengers werc traumatizedwitheminentfearofbeingkilledinadditionofbeingrobbedof their properties. That should court be inclined to reduce the sentence' an alternative sentence of 16 years imprisonment would suit the circumstances 25 of the case. 20

^Ihave read both the aggravating and mitigating factors put before the trial court. The mitigating factors by the appellants included the fact that they had

spent 2 years and 8 months on remand, were first time offenders' appeared remorseful, that some of the stolen items were recovered, they had family responsibilities and that they were still young' 5

In sentencing the appellants at page |77 of ttre record, the learned trial judge was alive to the factors that the appellants were first time offenders and had spent 2 years and 8 months on remand, she disregarded their factor that they hadbeenremorsefulandhadfamilyresponsibilities. However,thelearned trial judge did not consider the fact that the convicts were young'

In Kabatera Stephen vs. Uganda Criminal Appeal No' 123 of 2OOl cited with approval by the Supreme Court in Magala Ramathan versus Uganda

Criminal appeal No.o1 of 2014 where the court Stated that, ,,uLe are of the opinion that the age of an accused person is aht'tags a mateial factor that ought to be taken into account before sentence is imposed "' faiture to consider the age of the appellant caused a failure of justice' 15

From the charge sheet at 8 of the record, the age of the l"t appellant was 25 years and the 2nd appellant aged 27 years' The learned trial judge ought to haveconsideredtheyouthfulageoftheappellantsbeforesentencing'We accordingly set aside the sentences of 18 years imprisonment for both appellants on all 3 counts. 20

Weinvokecourt.spowersundersectionllofthejudicatureActtosentencc the appellants afresh 25

5 We are also alive to the need to ensure consistency in sentencing' The 10 Supreme Court has in Mbunya Godfrey V Uganda' Supteme Court Criminal Appeal No.4 of 2O11, emphasized the need to maintain consistency while Sentencingpersonsconvictedofsimilaroffences. CourtStatedthat,,Weare oliue to the fact that no ttuo cimes are identical' Hotueuer' ute should try as much as possible to haue consistencg in sentencing ' "

In Ogwal Nelson and 4 others vs Uganda; CACA I{O' 606 of 2015 Court reduced sentences of 35 years, 25 years, 30 years and life imprisonment to ^a sentence of 17 years and 6 months for the offence of aggravated robbery'

In Saava Sedu Tonny veraua uganda; CACA6OO/2O14 the appeliant was sentencedtoatermof2lyearsandTmonthsfortheoffenceofaggravated robbery. On appeal, he was sentenced to 20 years imprisonment' 15

In Rutabingwa James V Uganda, Court of Appeal Criminal Appeal No'57 of 2OtL, this Court confirmed a sentence of 18 years imprisonment for aggravated robbery

20 25 In view of the above cited cases we of the strong view that the sentences of ¹⁸ years meted out against the appellants on counts 1' 2 and 5 falls within the sentencing range' However, into account all the aggravating and mitigating factors to wit; the youthful age of the appellants' we set aside the sentences of 18 years imprisonment that the learned trial judge meted out against the appellants on each of the 3 counts We resentence the appellants as follows;

- 1. 1^st appellant; 16 years on count1, 16 years on count 2 and 16 years on $\mathsf{S}$ count 5. The sentences are to run concurrently from the date of conviction. - 2. 2^nd appellant; 16 years on count1, 16 years on count 2 and 16 years on count 5. The sentences are to run concurrently from the date of conviction.

## We so order

2022. day of. Dated at Masaka this.........

**Cheborion Barishaki**

**Justice of Appeal**

unt Tu

**Stephen Musota**

## **Justice of Appeal**

cibes

Muzamiru Mutangula Kibeedi

**Justice of Appeal**

20