[2023] UGCA 142

# THE REPUBLIC OF UCANDA

# IN THE COURT OF APPEAL OF UGANDA AT GULU

[Coram: Egonda-Ntende, Bamugemereire & Mulyagonja, JJA]

# CRIMINAL APPEAL NO. 2OO OF 20I6

(Arising fiom High Court of Uganda Criminal Session Case No. 014 of 2014 at Lira)

### BETWEEN

| Appellant<br>Okaka Benson | | |---------------------------|--| | AND | | | Uganda::::<br>Respondent | |

(Appeal against the Sentences ofthe High Court ofUganda (Rugadya, J.) delivered on the I 8 July 2016)

## JUDGMENT OF THE COURT

#### Introduction

- t1] The appellant was indicted of2 offences of murder contrary to sections ¹⁸⁸ and 189 of the Penal Code Act. The particulars of the offences were that on the l2th August 2013 in Abecye village, in Kote District the appellant murdered Iblo Brenda and Opio Kizito. The deceased persons were his wife and child respectively. He pleaded guitty to the 2 offences and was convicted as charged on 1 8th July 2016. He was sentenced to 22 years' imprisonment on each count to run concurrently. - 12) Dissatisfied with the sentencing order ofthe trial court the appellant appealed against the sentencing decision on the sole ground,

'That the learned Judge erred in law and fact when he passed a manifestly harsh and excessive sentence in the circumstances of the instant case and thereby occasioning a miscarriage ofjustice.'

- t3] The respondent supported the decision of the court below and opposed the appeal. - t4l The appellant was represented by Mr. Joseph Sabiti Omara while the respondent was represented by Ms Joanita Tumwikirize, State Attorney, in the Office of the Director of Public Prosecutions. Both counsel filed written submissions in the matter upon which this court has proceeded to consider this appeal.

# Facts of the Case

- t5] The facts of this case are that the appellant retumed home and found some money lying on the floor in the house. He suspected that his wife had helped herself to some money he kept for a SACCO to which he belonged and acted as Treasurer. He assaulted his wife who was holding a baby. The baby fett down and died of suffocation. The wife too died as a result of the injuries sustained. He was charged with murder of his wife and child to which he pleaded guilty. He was convicted on both counts and sentenced to 22 years' imprisonment on each count to run concurrently. - t6] In the court below the state submitted that these crimes ought to attract ^a sentence of 20 years' imprisonment while the appellant's counsel at the time submitted that the appropriate sentence should be l7 years' imprisonment. The trial court after reviewing the mitigating and aggravating factors determined that the optimal sentence for the offences in question was 25 years' imprisonment and deducting the period of 3 years spent on remand it sentenced the appellant to 22 years' imprisonment on each count to run concurrently.

### Submissions of Counsel

- I71 Mr Joseph Sabiti Omara, counsel for the appellant, submitted that the sentences in question were manifestly harsh and excessive. He referred to Susan Kisula v Uganda HCT-CR-SC-O1l5 of 2011(unreported) where a wife was sentenced to 20 years' imprisonment for murdering a husband. He also referred to Emeiu Juventine v Usanda CACA No. 95 of 2014 (unreported) where the appellant who on a guilty plea was convicted of murder of his spouse and sentenced to 23 years' imprisonment had his sentence reduced to ^I8 years' imprisonment. He also referred us to Nkurunziza Julius v U anda (CACA No. 12 of 2009) [2022] UGCA 65 where an appellant convicted on his own plea of guilt had his sentence fixed at 17 years' imprisonment by this court. The court treated the guilty plea as a mitigating factor. - t8] Mr Omara further submitted that courts were obliged in accordance with guideline no. 6 of the Sentencing Guidelines and Mbunya Godfrey v Ueanda SCCA No. 2 of 201 l(unreported) to ensure that much as circumstances permit there was uniformity and consistency in sentencing even though no 2 offences are identical in all respects. He prayed that this court reduces the sentence imposed on the appellant to 15 years' imprisonment on each count to run concurrently. - t9] Ms Joanita Tumwikirize, counsel for the respondent, submifted that there were no circumstances that existed in this particular case to warrant this court interfering with the decision of the trial court with regard to the sentence imposed on the appellant. In her view the appellant in fact got off with ^a lenient sentence. She referred to Nkonse Robert v Uganda (CACA No. 148 of 2009) [2015j UGCA 6l in which a sentence of death was upheld by this court against an appellant that had murdered his wife. She referred to Sunda Cordon v Usanda (CACA No 103 of 2006) t20l5l UGCA 67, where ^a sentence of life imprisonment was upheld for an appellant that had murdered his wife. She referred to FlorenceAbbovUsanda (CACA No. 168 of 2018) 2023 UGCA l7 where a sentence of 40 years' imprisonment was upheld by this court for an appellant that caused the death ofher own son. She therefore

submitted that a sentence of 22 years' imprisonment in this case should not be interfered with.

# Analy sis

- [0] The law with regard to when an appellate court may interfere with a sentence of the trial court is well-settled. Ordinarily an appellate court will not interfere with a sentence of the trial court, unless the trial court acted on some wrong principle, overlooked a material fact, or the sentence was manifestly harsh and excessive in the circumstances of the case. See Livingstone Kakooza v Usanda tl994l UGSC l7 Bemard Kiwalabyev Usanda SC Criminal Appeal No. 143 of200l (unreported); 130 of 1999) t20031UGCA 8. and Kyalimpa Edward v Usanda (CACA No. - ^II 1 ] We note that all the decisions referred to us by leamed counsel for the respondent were not in respect ofa conviction for murder that had arisen on a guilty plea. They are therefore distinguishable. In the case before us the appellant was convicted on a guilty plea and this is a factor that ought to reflect in the sentence determined for the offences he was convicted of. To that extent those cases were not helpful for purposes of consistency and uniformity in sentencing with regard to this particular appellant. - [2] In Mwesiee Peter v Ueanda. L2Ql8l UGCA l0 the appellant who had killed his spouse and was convicted on his own plea of guilty was sentenced to 35 years' imprisonment. This court reduced the sentence of imprisonment to I ⁵ years on account of the guilty plea. - [13] In Emeju Juventine v Uganda (supra) the appellant on a guilty plea was convicted of murder of his spouse and sentenced to 23 years' imprisonment. This court reduced the sentence to l8 years' imprisonment.

- [14] In Anguyo Robert v Uganda [2016] UGCA 39 the appellant had been convicted on his own plea of guilty for murdering his wife. He was sentenced to 20 years' imprisonment. This court reduced it to l8 years' imprisonment. - [15] It would appear that on a guilty plea for murder the sentencing range imposed by the courts is between l5 to l8 years' imprisonment. In the circumstances of this particular case we agree with the appellant that a sentence of22 years' imprisonment was rather manifestly harsh and excessive. We set it aside.

### Decision

[6] We find that a sentence of l5 years' imprisonment on each count would be optimal. We deduct therefrom the period of 3 years spent on remand. We order the appellant to serve both sentences of 12 years' imprisonment, concurrently, from 12il'July 2016, the date ofconviction.

7{ Signed, dated and delivered this day of

)\_-

drick Egondatende

Justi ofAppeal

Catherine B ugemerelre Justice of Appeal

Irene Mulyagonja

Justice of Appeal