[2024] UGCA 216

## THE REPUBLIC OF UGANDA

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

Coram: Kiryabwire, Mulyagonja & Luswata, JJA

## CRIMINAL APPEAL NO. 571 OF 2015

#### OKELLO DAVID KAKEMBO ::::::::::::::::::::::::::::::::::: APPELLANT $\mathsf{S}$

#### AND

# **UGANDA :::::::::::::::::::::::::::::::::::**

(An appeal from the decision of Keitirima, J delivered at Gulu on 29^th August 2014 in High Court Criminal Session Case No. 381 of 2014)

#### JUDGMENT OF THE COURT

### **Introduction**

The Appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. He pleaded guilty and was sentenced to 25 years' imprisonment.

**Background**

The background to the appeal, as ascertained from the Record, was that the deceased, Lamwaka Silinda was the Appellant's wife with whom he lived at Pogo Okuture Village, Pogo Parish, Pabbo Sub County in Amuru District. On 12^th May 2014, the Appellant was at home with his wife who 20 was sitting in the compound as she winnowed sorghum. The Appellant picked his axe and used it to cut her twice on her head, instantly killing her. He then picked up the axe and the deceased's phone and run away but was arrested and charged with the offence of murder, which he admitted. When he was arraigned in court he pleaded guilty and was 25

sentenced to 25 years' imprisonment.

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Okello David Kakembo, Crim. Appeal 571/2015

Dissatisfied with the sentence, he now appeals on one ground as follows:

1. That tle learned trial Judge ened in law and fact when he sentenced tte Appellant who readilg pleaded guiltg to 25 years in prison, uhich sentence is harsh and manifestlg excessiue in the circumstances of the case.

# Representation

When the appeal c€rme up for hearing on 20th November 2023, the Appellant was represented by Ms. Daisy Bandaru on State Brief. The Respondent was represented by Ms. Fatinah Nakafeero, Chief State Attomey in the Office of the Director of Public Prosecutions.

Ms. Bandaru applied to appeal against sentence only in accordance with section 132(1Xb) of the Trial on Indictments Act and her prayer was granted. Subsequently, prayers by both counsel to have their written submissions adopted as their final arguments in the appeal were also granted and it is upon them that this appeal has been determined.

# Submissions of Counsel

Ms. Bandaru stated that the Appellant, by pleading guilty, did not waste court's time and that this was a sign that he was truly remorseful. She reiterated the submissions of the prosecution before the Appellant was sentenced in the lower court where counsel prayed that the court imposes a severe sentence, preferably for life, to send a signal to the public and restore confidence in the system. She also restated the submissions that were advanced in mitigation for the Appellant.

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Okello Dauid Kakembo, Cim. Appeal 57 1/ 20 1 5

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Counsel further referred to Kizito Senkula v. Uganda; SCCA No. 24 of 2OO1 and Ninsiima Gilbert v. Uganda; CACA No. 18O of 2O1O on the circumstances under which this court will interfere with the sentence imposed by the trial court. She contended that in this particular case, the sentence was harsh and excessive because the Appellant readily pleaded guilty, was a first time offender and he had family responsibilities.

Counsel for the Appellant went on to submit on the need for consistency and uniformity in sentencing as it was emphasised in Mbunya Godfrey v. Uganda; SCCA No. 4 of 2Oll. She referred to Ndyomugenyi Patrick v.

- Uganda; SCCA No. 57 of2016, Tumwesigye Reuben v. Uganda; CACA No. 181 of 2O13 and Atiku Lino v. Uganda; CACA No. 41 of 2O19, where the court imposed final sentences of 20 years' imprisonment on each of the Appellants. She also referred to Korobe Joseph v. Uganda; CACA No. 243 of 2O13, where a sentence of 25 years' imprisonment was reduced to 10 - 14 years because the Appellant was of advanced age and had shown remorse. Counsel stated that in the cases of Mbunya Godfrey v. Uganda lsupral and Akbar Hussein Godi v. Uganda; SCCA No. 03 of2O13, where the Appellants were handed 25 years' imprisonment sentences, the Appellants went through full trials unlike the instant case where the Appellant readily pleaded guilty. 15 20

It was her argument that the circumstances of this case called for leniency. She then prayed that the Appellant's sentence be reduced to one of 20 years' imprisonment, after taking into account the mitigating factors.

In reply, Ms. Nakafeero referred to Wamutabaniwe Jamiru v. Uganda; 2s SCCA No. 74 of2OO7, Kamya Johnson Wavamunno v. Uganda; CACA No. 16 of2OOO and Kyalimpa Edward v. Uganda; SCCA No. 1O of 1995 on the circumstances under which this court may interfere with the

Okello Dauid Kakembo, Cim. Appeal 571/2015 '/'AF- ' ³ ,J-K

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sentence imposed by the trial court. It was her submission that the trial Judge comprehensively considered both mitigating and aggravating factors and counsel for the Appellant did not demonstrated that he failed to consider the mitigating factors.

She went on to cite **Karisa Moses v. Uganda; SCCA No. 23 of 2016,** where $\mathsf{S}$ the Appellant was convicted of the murder of his grandfather and the Supreme Court sentenced him to life imprisonment. She submitted that while confirming his sentence the court held that an appropriate sentence is a matter for the discretion of the sentencing Judge and the appellate court will not interfere with the sentence unless it is illegal or manifestly 10 excessive so as to amount to an injustice.

Ms. Nakafeero contended that the maximum penalty for the Appellant's offence is death. And that under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, the starting point for the offence of murder is a sentence of 35 years' imprisonment and so the Appellant's sentence was not harsh.

Counsel further relied on Bashasha Sharif v. Uganda; SCCA No. 82 of **2018,** where deterrence was held to be one of the objectives of sentencing. She referred to **Semaganda Sperito & Another v. Uganda; CACA No. 456**

- **of 2016** where this court observed that cutting out the intestines of the 20 deceased was ruthless and extreme and so it confirmed a sentence of 50 years' imprisonment. She also referred us to **Kaddu Kavulu Lawrence v. Uganda; SCCA No. 72 of 2018** where a sentence of life imprisonment was upheld. - She concluded that in the instant case, the Appellant killed the deceased 25 without any provocation and so the sentence imposed was not harsh or

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Okello David Kakembo, Crim. Appeal 571/2015

excessive in the circumstances of the case. She prayed that court upholds the sentence and dismisses the appeal.

## **Analysis and Determination**

The principle is well settled that the appellate court is not to interfere with the sentence imposed by the trial court exercising its discretion unless the $\mathsf{S}$ sentence is illegal or the Court is convinced that the trial court did not consider an important matter or circumstance which ought to be considered when passing sentence. Further, that the court may interfere if it is shown that the sentence was manifestly excessive or so low as to amount to an injustice. See **Livingstone Kakooza v. Uganda; SCCA No.** 10 17 of 1993.

The Appellant's main grievance in this appeal is that the trial Judge laid no emphasis on the fact that he readily pleaded guilty to the offence and so handed down a sentence that was manifestly harsh and excessive in the circumstances of the case.

In Yustina Aharikundira v. Uganda [2018] UGSC 49, the Supreme Court explained what the expression "harsh and excessive in the circumstances of the case" means when it held that:

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"There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial Judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the *sentence imposed exceeds the permissible range or sentence variation.*

It therefore behaves this court to consider whether the trial Judge omitted 25 to consider the fact that he pleaded guilty and so handed down a sentence that was harsh and excessive in the circumstances of the case.

*Okello David Kakembo, Crim. Appeal* 571/2015

Iron.

We observed that in his sentencing ruling on 29th August 2Ol4, at page 1 I of the Record, the trial Judge held thus:

'I haue heard both the aggrauating and mitigating factors. Much as tle conuict pleaded guiltg, his actions u)ere gruesome and unprouoked. It is the most terrifying LUaA to cause one's death. The conuict's actions call for a deterrence. (sic) I haue considered the period the conuict has spent on remand and I will nou) sentence him to 25 (tuenty-fiue) gears in Prison."

The decision above shows that instead of considering it as a mitigating factor, the trial Judge actually disregarded the fact that the Appellant 10 pleaded guilty. In spite of his plea he imposed a deterrent sentence upon him.

We are aware that although the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions of 20 13 provide, in paragraph 21, that the court must take into consideration that an accused person may plead guilty, they do not guide about the sentence to be given to one who does so. This Court considered this matter in some detail in Ekonga Patrick v. Uganda, Criminal Appeal No 332 of 2OL7; a2023l UCrcA 179, at page 6, where it was observed that the sentence to be given on account of a plea of guilty is left entirely in the discretion of the trial

Judge. 20

The court then discussed the position in the United Kingdom of England and Wales where the Sentencing Council issued a Definitive Guideline on sentencing where an offender pleads guilty, under section 73 of the Sentencing Code. The Reduction in Sentence for a Guilty Plea, 2077,

defines the parameters for the sentencing court which were summarized by this court at page 7 of its judgment in Ekonga's case (supra) as follows: )<

Okello Douid Kakembo, Cim. Appeal 571/ 2015 6

/

"The Guideline specifies that the maximum reduction on a plea of guilty shall *be one third. Where a guilty plea is indicated at the first stage of proceedings* a reduction of one-third should be made subject to specified exceptions. The first stage will normally be the first hearing at which a plea or indication of plea is sought and Recorded by the court. Further, that after the first stage of the proceedings the maximum level of reduction is one-quarter, subject to specified exceptions. The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court, relative to the progress of the case and the trial date subject to specified exceptions. The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial."

Paragraph 14 of the Sentencing Guidelines provides for the "General factors to consider at sentencing." Clause (5) thereof goes on to provide

that "the court shall take into account the matters specified in the Second 15 Schedule and the considerations specified in respect of each offence." It is then provided in clause (p) of the Second Schedule that in determining the sentence where there is a guilty plea, "the court shall take into account the stage of the trial and the circumstances within which a plea of guilty was *made.*" In the absence of guidelines on the reduction to be accorded to 20 one who pleads guilty, we employed the parameters used in the UK and Wales to determine the reduction that could be accorded to the Appellant in this case.¹

At page 8 of the Record, it is shown that the Appellant immediately pleaded guilty when the Indictment was first read to him on 25^th August 2014. 25 After he accepted the facts he was convicted on his own plea of guilty. The trial Judge subsequently deemed it appropriate to sentence him to 25 years' imprisonment, having taken into account the period that he spent

Okello David Kakembo, Crim. Appeal 571/2015

$\mathsf{S}$

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Lever.

^&lt;sup>1</sup> This is not to say that they have been adopted wholesale for use in Uganda. In **Ekonga's case** (supra) this court recommended that similar parameters should be provided in the Sentencing Guidelines to enable accused persons who plead guilty to have an idea of the reduction that would be accorded to them on doing so.

on remand, but without considering that he pleaded guilty. He therefore did not observe the requirement in paragraph 21 of the Sentencing Guidelines and for that reason, we hereby set the sentence aside and shall proceed to resentence the Appellant, pursuant to the powers that are vested in this court under section l1 of the Judicature Act.

Given the sentences for the offence of murder that were handed down by the courts in the cases cited by counsel for the Appellant, we think that the sentence of 25 years' imprisonment was appropriate in the circumstances of this case, as the starting point. However, we deemed it

- 10 appropriate to reduce that by of I l3 due to his plea of guilty, to come to a sentence of 16 years and 6 months. Further to that, we observed that the Appellant spent about three months in custody before he was convicted and sentenced. This is because according to the Record, he was charged with the offence on 16th May 2Ol4 and sentenced on 29th August 2014. We - thus deduct the period of 3 months from the sentence in observance of the requirements of Article 23 (8) of the Constitution and sentence him to 16 years and 3 months' imprisonment with effect from the 29th August 2014, the day on which he was first sentenced. 15

It is so ordered.

20 Dated this Lg day of o24. t'-.^1.-r-d? ------------r--

Geo Kiryabwire JUSTICE OF APPEAL

Okello Dauid Kakembo, Crim. Appeal 571/2015 8

$\mathcal{I}$ . Irene Mulyagonja

JUSTICE OF APPEAL $\mathsf{S}$

Eva K. Luswata $10$

JUSTICE OF APPEAL

Okello David Kakembo, Crim. Appeal 571/2015