[2024] UGCA 117

#### THE REPUBLIC OF UGANDA

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

Coram: Kiryabwire, Mulgagonja & Luswata, JJA

## CRIMINAL APPEAL NO. OO2L OF 2016

5 ORYEK BENSON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

#### UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Appeal from the decision of Masalu Musene, J, deliuered on 3'a Februa.ry 2016 in Arua High Court Ciminal Session Cqse No. O7 of 2013, at Nebbi.)

#### JUDGMENT OF THE COURT

The Appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. After a full trial, he was convicted of the offence on 3.d February 2016 and sentenced to 27 years' imprisonment.

# 1s Background

The facts that were admitted by the trial Court were that on 11th June, 2Ol2 at Oraa Village, Pakwinyo Parish, Wadelai Sub County in Nebbi District, the Appellant murdered Innocent Opakrwoth, his stepson who was almost two years old. It was the case for the prosecution that on that d^y, the deceased's mother, Akumu Gloria who was married to the Appellant, left the little boy sitting on the veranda with the Appellant and his brother, Woram and went to the garden to get some cassava. That as she returned from the garden, she met the Appellant carrying the dead

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body of her son. He told her that the boy simply collapsed and died, but because she left the boy in perfect health, she did not believe this. She demanded for further explanation from the Appellant but he did not give her any.

5 The death was reported to Wadelai Police Post and a post mortem examination showed that the deceased died due to a severed spine injury resulting from forceful breaking of his neck. The Appellant went into hiding and was arrested after one week. He was charged with murder but he pleaded not guilty. The trial Judge found a prima facie case against him but when he was called on to defend himself, he opted to keep quiet stating that he left everything to Court to decide. 10

The trial Judge found sufficient evidence to convict the Appellant of murder. He also found that a sentence of 30 years' imprisonment was appropriate in the circumstances but after considering and deducting the period spent on remand, he sentenced him to 27 years'imprisonment.

Dissatisfied with both the conviction and sentence, the Appellant now appeals to this Court on three grounds as follows:

- 1. That the trial Judge erred in law and fact when he interpreted the silence of the Appellant in his defence to mean that of a guilty person. - 2. That the trial Judge erred in law and fact when he failed to properly evaluate the evidence before him thus reaching a wrong decision. - 3. That the trial Judge erred in law and fact when he sentenced the Appellant to a harsh deterrent sentence of 30 years.

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## Representation

When the appeal was called on for hearing on 20th November 2023, Mr. Mbasa Dennis represented the Appellant on State Brief. Ms. Immaculate Angutoko, Chief State Attorney from the Office of the Director of Public Prosecutions, represented the Respondent.

Counsel for both parties prayed that their written submissions, filed as directed by the Registrar, be considered as their final arguments in the appeal and their prayers were granted.

# Analysis and Determination

- The duty of this Court as a first appellate Court is stated in Rule 30(1) of the Judicature (Court of Appeal Rules) Directions SI 13-10. It is to reappraise the whole of the evidence before the trial Court and draw from it inferences of fact. The Court then comes to its own decision on the facts and the law but must be cautious of the fact that it did not observe the 10 - witnesses testify. (See Bogere Moses & Another v Uganda; Supreme Court Criminal Appeal No.1 of L9971 15

We are guided by the principles above and in resolving this appeal, we carefully reviewed the record set before us, considered the submissions of both counsel, the authorities cited and those not cited that were relevant to the appeal. The grounds were considered in chronological order as it was done in the submissions of both counsel. The submissions on each ground were reviewed before the resolution of each of them, but before that, we considered the preliminaqr point of law raised by counsel for the Respondent.

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# Submissions on Preliminary Objection

Counsel for the Respondent contended that the second ground of appeal raised by the Appellant offends Rule 66 (2)'of the Court of Appeal Rules in so far as it did not specify the point of law or fact, or mixed law and fact that the Appellant contends was wrongly decided. She submitted that it is a general ground and made reference to Sseremba Dennis v. Uganda, Court of Appeal Criminal Appeal No. 48O of 2OL7 and Ntirengenya Joseph v. Uganda, Court of Appeal Criminal Appeal No. 1O9 of 2OL7 where similar grounds were struck out by this Court for offending Rule 66 (21 of its Rules.

In reply, Mr. Mbasa for the Appellant submitted that his second ground of appeal was not a general ground but a specific one on the trial Judge's failure to evaluate evidence. It was his submission that the cases cited by the Respondent are distinguishable from the situation in this case. He argued that raising a ground of appeal on each specific element of evidence that the trial Court failed to evaluate would lead them to raise many grounds which would be tedious and difficult to resolve. Counsel thus made reference to Attorney General v. Major General David Tinyefuza, Constitutional Appeal No. 01 of L997, as cited in Busonya Jamadha and Others v. Daudi Giruli, Supreme Court Civil Appeal No.l L of 2OL7 , and invited this Court to invoke the provisions of Article 126 (2) (e) of the Constitution of Uganda and Rule 2 (2) of the Rules of this Court to overrule the Respondent's objection. 15 20

# Resolution of the preliminary objection

The Appellant raised three grounds of appeal in his memorandum of appeal. The first ground specifically addressed the manner in which the trial Judge dealt with the fact that the Appellant opted to keep silent when 4 A)4rl W\t 25

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he was put to his defence, but the trial Judge is alleged to have construed that as guilt.

That first ground of appeal, in our view, addresses the duty of this Court on a first appeal as it is stated in Rule 30 (1) of the Rules of this Court. It would bring this Court to determination of the question whether the finding of the trial Judge that the Appellant committed the offence charged, based on the evidence before the Court, was correct or arrived at in error. The Appellant then raised ground two as follows:

"2. Thot the triol Judge erred in laut and fact when he failed to properlg eualuate the euidence before him thus reaching a wrong decision."

It is not clear from this ground whether the decision that is challenged is the final decision or some other decision within the Judgment.

Nonetheless, in his submissions on ground 2, counsel for the Appellant complained that the trial Judge relied on the post mortem report to establish the cause of death, yet it was never produced by the person who examined the body of the deceased, prepared and signed it. That instead, the report was admitted in evidence as a document produced by the prosecution and when he informed Court about its contents, counsel was giving evidence from the bar. Counsel then contended that the trial Judge ought not have admitted the report onto the record. 15 20

Counsel went on to specifically address the fact that the doctor who examined the deceased, wrote and signed the report was never called to testify to prove its contents. That as a result he was not cross examined

about his findings and this led to the conclusion that the deceased died 25

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from an injury due to a severed spine. Counsel further charged that the trial Judge ought to have called the doctor as a witness, and because he did not do so, he occasioned a miscarriage of justice when he came to the conclusion that the prosecution proved the cause of death beyond reasonable doubt.

Rule 66 (2) of the Court of Appeal Rules provides as follows:

(2) The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided.

*{Emphasis added}*

According to this Rule, the Memorandum of Appeal in a first appeal such as this one, should set forth concisely the grounds of objection to the *decision appealed against specifying the points of law or fact or mixed law* or fact, which are alleged to have been wrongly decided.

- Given the submissions for the Appellant, it becomes clear that what 20 counsel wanted to appeal against was the manner in which the Post Mortem Report was produced, not the evaluation of evidence, because that was the subject of ground one. It then becomes evident that ground 2 neither specified any point of law or fact that was wrongly decided by the - trial Judge. Neither was it concise about any objection to the decision of 25 the trial Judge. It was a general ground that was included in the Memorandum of Appeal to enable counsel for the Appellant to fish for

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wrongs in the decision that he had not identified as he prepared for the appeal.

For those reasons, ground 2 did not comply with the requirements of Rule 66 (2) of the Court of Appeal Rules. We therefore have no alternative but to strike it out.

#### Ground One

$\mathsf{S}$

$25$

This was a complaint that the trial Judge erred in law and fact when he interpreted the silence of the Appellant in his defence to mean that he was guilty.

#### Submissions of counsel 10

Mr. Mbasa, for the Appellant submitted that the right of an accused person to remain silent when called upon to answer to any allegations or to defend himself in the course of trial is guaranteed in the 1995 Constitution of Uganda. He referred to Article 28(3) thereof which provides for the presumption of innocence for every person who has been charged with a 15 criminal offence. He stated that according to **Woolmington v. DPP [1935] A. C 462**, it is the duty of the prosecution to prove the guilt of the accused person and not the accused person to prove his innocence. He further submitted that according to Article 28 (11) of the Constitution, neither an accused person nor their spouse should be compelled to give evidence 20 against the accused person.

Counsel further submitted that the rationale behind the 'right to silence' as observed in R v. Director of Serious Fraud Office, Ex parte Smith [1993] A. C 1, 30-31, quoted by Sowed Juma Mayanja in Journal of Law, Policy and Globalization, ISSN 2224-3240 (paper) ISSN 2224-3259 $\frac{1}{\lambda}$

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(online), Vol. 63, 2017, encompasses a disparate group of immunities which differ in nature, origin and incidence. Further, that some immunities were identified in the case above such as a specific immunity possessed by an accused person undergoing trial from being compelled to give evidence and from being compelled to answer questions put to them in the dock; and a specific immunity possessed by an accused person undergoing trial from having adverse comments made on any failure to answer questions before trial or to give evidence at trial.

He summed up Lord Mustill's observation that the right to silence in general refers to an immunity possessed by an accused person undergoing trial from being compelled under pain of punishment to give evidence or answer questions with incriminating elements put to him. 10

It was counsel's submission that in the instant case, on 2"d February 2016, the accused person was present in Court when the ruling on a prima facie case was delivered upon establishing that a case had been made out against him by the prosecution. That Court then explained the options available to him and in response he had this to say: '? opt to keep quiet. I leaue euerything to Court to decide." 15

Counsel went on to quote from the judgment where the trial Judge observed that he opted to keep quiet because he had nothing to say being overwhelmed by guilt. He contended that the trial Judge erred both in law and fact by holding and stating so, because in his mind, the accused was already guilty. He referred to Col (Rtdl Dr. Kiiza Besigye v. Uganda, High Court Criminal Session Case No. 149 l2OO5, where the accused elected not to say anything by way of his defence or to call witnesses and Court :::ffH."::Jj:: ;::"- "-::::1,:""":::T: Jff" \*-,:":' ^U fu"1 20 25

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Counsel further submitted that in the instant case, the trial Judge convicted the Appellant on the weakness of his defence, not on the strength of the prosecution case as it ought to be. He invited Court to correct the error of the trial Judge by acquitting the Appellant.

- 5 In reply, Ms Angutoko for the Respondent submitted that the Appellant's argument that the trial Judge breached the Appellant's right to silence during the trial was made out of context. She submitted that the trial Judge did not at any one point interpret the Appellant's option to remain silent as guilt, but rather in the light of the facts or the circumstances of - the case. She referred to page 9 of the record of appeal where PW1, the deceased's mother, testified that on the fateful day, she left the deceased with the Appellant and went to the garden. That at the time she returned she found the Appellant with the body of the deceased, already dead with blood around the mouth, yet she left when he was not sick. That the Appellant did not say anything upon her inquiry about how the child died. 10 15 - She explained that this is the silence that the Judge referred to and not the Appellant's choice of not giving a defence.

Counsel further noted that the evidence in this case is purely circumstantial as there was no eye witness, but that it is so strong and points to the guilt of the Appellant. To support her argument, she referred to the often cited case of Simon Musoke v. R [1958] E. A 715 on circumstantial evidence. She also noted that one of the key pieces of circumstantial evidence was that the Appellant was the person last seen with the deceased when he was still alive. She referred to Jagenda John 20

v. Uganda, Court of Appeal Criminal Appeal No. OO1 of 2O11 and Uganda v. Nakanwagi Fauza & 5 Others, Criminal Session Case No. 243 of 2OL5, where the doctrine of last seen was applied when the Court 25

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held that it creates a rebuttable presumption that the person last seen with a deceased person bears full responsibility for his or her death, unless he/she can explain other circumstances that led to their death. That it was in this context that the trial Judge made comments regarding the

5 Appellant's silence.

> Counsel concluded that the trial Judge evaluated the circumstantial evidence as a whole and he came to the right conclusion that the Appellant was guilty. Further that the Appellant opted to keep quiet even when he was gra.nted an opportunity to defend himself and yet the circumstantial evidence had squarely placed him at the scene of the crime.

In rejoinder, Mr Mbasa asserted that his argument was not made out of context. He clarified that the silence referred to by the trial Judge was that of the Appellant when he was called upon to defend himself during trial and that it is what formed his opinion that he was guilty. He went on to submit that the trial Judge evaluated the silence of the Appellant vis-A-vis the Respondent's evidence and concluded that when the Appellant was called upon to defend himself, he opted to keep quiet; that he had nothing to say, was overwhelmed by guilt and that there was no other hypothesis other than that of guilt.

Mr. Mbasa further contended that there was no direct eye witness who testified in Court and that the circumstantial evidence only points to the innocence of the Appellant. That his choice of silence was because he strongly believed that he was innocent and deemed it unnecessary to give any explanation to Court or to anyone else about it. 20 ASro'^ qdL

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#### **Resolution of Ground 1**

The right of an accused person charged with an offence to which the Trial on Indictments Act (TIA) applies to keep silent, is provided for in section $73$ (2) thereof, which provides that:

- (2) When the evidence of the witnesses for the prosecution has been $\mathsf{S}$ concluded, and the statement or evidence, if any, of the accused person before the committing court has been given in evidence, the court, if it considers that there is sufficient evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each accused person of his or her right— 10 - (a) to give evidence on his or her own behalf; - (b) to make an unsworn statement; - (c) to call witnesses in his or her defence,

and shall then ask the accused person, or his or her advocate, if it is intended to exercise any of the rights under paragraphs (a) or (b) and (c) of this subsection and shall record the answer. The court shall then call on the accused person to enter on his or her defence, except where the accused person does not wish to exercise any of such rights, in which event the advocate for the prosecution may sum up the case for the prosecution.

{*Emphasis added*}

The accused person is free to exercise the option not to offer any defence because even after all the evidence against them has been called and adduced, it is possible that no case will have been made out against them to prove that they are guilty. In such cases, the accused person, preferably $25$ advised by their lawyer, may opt to keep quiet and leave it to the Court to evaluate the evidence before it and come to its decision, based on the submissions of the prosecution on the case.

Where the accused person deems it fit not to offer a defence, he/she also gives up the right of their Advocate addressing Court in response to the 30

WAST.

submissions presented by the prosecution. Section $73$ (2) of the TIA is premised on the presumption of innocence that is set out in Article 28 of the Constitution which guarantees the right to a fair hearing. Clause (3) thereof provides that every person charged with a criminal offence shall be

presumed to be innocent until proved guilty or until that person has $\mathsf{S}$ pleaded guilty.

The portion of the trial Judge's opinion that the Appellant contends is in breach of Article 28 (3) (a) of the Constitution was at page 19 of the record of appeal, and as follows:

"As was held in **Simon Musoke v. R [1958] E. A 715**, a Court must before 10 *deciding on a conviction find that the inculpatory facts are incompatible with* the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. **Accused was in the present case, the last** person in whose custody PWI left the deceased, when he was not sick at all, only to return when he was dead and with no explanation 15 from accused save for running into hiding. That was not conduct of on innocent person. It was no wonder that when accused was called upon to defend himself he looked up and down, sideways in the court and then said he had opted to keep quiet. He had nothing to say. The accused was overwhelmed by guilt and that is what 20 circumstantial evidence is about. No other hypothesis than that of guilt."

#### *{Emphasis added}*

Although he did not dwell on it or explain the principle that informed his findings against the Appellant, the trial Judge referred to the components 25 of the doctrine of 'last seen' when he stated that PW1 left the deceased in the custody of the Appellant, he was not sick as all, but when she returned, the child was dead; and the Appellant could not explain what caused his death.

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This Court in Busingye Paul & Ampereza Lawrence v. Uganda, Criminal Appeal No O48 of 20.22 and O56 of 2OL9, explored and applied the doctrine of last seen. The Court relied on the decision of the Court of Appeal of Nigeria in Moses Jua v. The State, l2OO7l JELR 44o34 (CAl;

5 CAllLl4212o,o,6, where the doctrine was explained in the following terms:

> "Euen though the onus of proof in criminal cases aluags rests squarely on the proseantion at alltimes, the last seentheory in the prosecution of murder or anlpable homicide cases is that uhere the deceased was last seen uith the acansed, there is a duty placed on the accused to giue an explanation relating to hotu the deceased met his or her death. In the absence of any explanation, the Court is justified in drauing the inference that the accased killed the deceased."

In Musyoka Maingi Nguli v Republic [20191 eKLR, the Court of Appeal

of Kenya relied on the decision of the Nigerian Court of Appeal in Stephen

#### Haruna v The Attorney-General of The Federation (2O1Ol iLAW/CAIA l86lCl2OO9; where the Court explained the doctrine thus: 15

"The doctine of "last seen" mearts that the lana presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accltsed person utas the last person to be seen in the companA of the deceased and circumstantial euidence is ouenlhelming and leads to no other conclusion, there is no roomfor acquittal. It is the duty of the appellant to giue an explanation relating to how the deceased met her death in such circumstances. In the absence of a satisfactory explanation, a trial court and an appellate court uill be justified in drawing the inference that the accused person killed the deceased."

This Court also applied the doctrine in Kurong Stanley v. Uganda, CACA No 3L4 of 2OO3; [2OOBI UGCA 11; Musana Alex v. Uganda, C. A,CA No 1O5 of 2O15; l2022l UGCA 247; and Baluku David v. Uganda, CACA No 585 of 2o15; l2o23l UGCA 229.

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The relevant evidence of the mother, Akumu Gloria (PW 1) was straightforward and she did not waver when she was cross examined. At page 11 of the record of appeal she stated thus:

On 11/ 6/ 2012, I lefi the child with the accused. I went uith the accused. (sic) I taent to the garden. The accused uas withhis brother, Warom. Bg the time I returned from the garden, I met the accused uith the child, alreadg dead.

Accused TDas carrying the child. TLrcre was blood around mouth of the deceased. Moreouer, I left, the deceased not sick. Accused did not explain anything despite me asking him how the child died. I returned uiththe dead child and accused decided to ran awaA. The sun had rtot set."

The doctrine of last seen'requires the person last seen with the deceased while still alive to explain the circumstances under which the deceased met his/her death. On failure to do so, an inference is drawn that the person last seen with the deceased caused their death. In the appeal now before us, not only did the Appellant fail to explain to the mother how the deceased met his death while in his care at the point when he handed the dead body to her, but he also ran away from the village and was arrested a week later.

While it was still incumbent upon him to explain the circumstances of the death in his defence, the Appellant failed to satisfy that obligation for the second time when he gave up his right to defend himself against the very serious indictment against him for murder. 20

The unrebutted fact stated by Akumu Gloria and Odari Saidi (PW3) that the Appellant fled the village after he handed over the dead body to Akumu and was arrested one week after the crime further implicates him. It is an established principle in cases of murder that the behaviour of a suspect after committing the offence is one of the indicators of his/her guilt. It is 25

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circumstantial evidence that can be used to corroborate other evidence on the record to confirm the guilt of the suspect.

The trial Judge thus did not simply rely on the Appellant's option to keep silent or the weakness of his defence to convict him of the offence. Instead,

5 he relied on two legal principles that are applied by the Courts in such cases to convict him. We therefore find that he made no error, as asserted by counsel for the Appellant, or at all, when he convicted the Appellant of the offence of murder.

### Ground 3

The Appellant's complaint in this ground was that the trial Judge erred in law and fact when he sentenced him to a harsh deterrent sentence of 3O years. There seems to be an error in the framing of this ground in that the Appellant was not sentenced to 30 years'imprisonment but to 27 years in prison. 10

## ¹⁵ Submtssions of counsel

Mr. Mbasa, for the Appellant, referred to Rules 30(1)(a) and 32 of the Rules of this Court as well as Ogalo s/o Owoura v R; (1954)21 EACA 27O, as quoted in Mwerinde Lauben v Uganda; CACA 151 of 2OL3, and submitted that the trial Judge overlooked the fact that the Appellant was a young man who was capable of changing into a reformed citizen, was remorseful and a first-time offender. He further submitted that the Appellant opted to keep quiet and leave everything to Court to decide, and so did not waste the Court's time.

He further referred to Mwerinde Lauben v Uganda (supra) where this Court set aside a sentence of 35 years' imprisonment on the basis that it was harsh compared to cases that were similar to that of the Appellant 25

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and substituted it with 30 years' imprisonment. He also referred to **Abdu** Komakech v Uganda; SCCA No.1 of 1988, where the Court set aside the conviction and sentence for the offence of simple robbery and invited this honourable Court to find that the sentence imposed on the Appellant was

not only harsh but also excessive. $\mathsf{S}$

In reply, Ms. Angutoko for the Respondent begun by clarifying that the Appellant was sentenced to 27 years' imprisonment and not 30 years because the three years spent on remand had been deducted. She referred to Kiwalabye Benard v. Uganda, SCCA No. 143 of 2021 as cited in Blasio

Ssekawooya v. Uganda, Criminal Appeal No 107 of 2009 and Kyalimpa 10 **Edward v. Uganda; SCCA No. 10 of 1995,** for the principles upon which an appellate Court may interfere with the sentence of the trial Court. She referred Court to page 20 of the record of appeal where the trial Judge recorded both mitigating and aggravating factors, before deducting the three years' period that had been spent on remand. 15

She contended that the sentence imposed was legal and that it falls within the range prescribed by law and is consistent with sentences dispensed by this Court and the Supreme Court. She relied on **Bakubuye Muzamiru &** Another v. Uganda, SCCA No. 56 of 2015, where a sentence of 40 years' 20 imprisonment was confirmed for Appellants who had been convicted of murder and aggravated robbery. She further relied on Sekawoya Blasio v **Uganda, SCCA No. 24 of 2014** where a sentence of life imprisonment was confirmed for an Appellant who was convicted on three counts of murder of his three biological children.

Counsel further referred to Florence Abbo v. Uganda, CACA No. 168 of 25 **2013** where a sentence of 40 years' imprisonment was upheld for an Appellant who was convicted for the murder of her step son by poisoning,

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and Mugero Patrick & Another v. Uganda, CACA No. 076 of 2019 where a sentence of 45 years' imprisonment was upheld for an Appellant was convicted of murder. She asserted that a sentence of 27 years' imprisonment was appropriate in the instant case and she prayed that this Court does not interfere with it and that the appeal is dismissed.

In rejoinder, Counsel for the Appellant submitted that the trial Judge overlooked the mitigating factors raised by the Appellant during the allocutus and so handed down a harsh and excessive sentence in the circumstances.

#### **Resolution of Ground 3** 10

It is well settled that this Court is not to interfere with a sentence imposed by the trial Court exercising its discretion unless the sentence is illegal or the Court finds that the trial Judge did not consider an important matter or circumstance which ought to have been considered while passing sentence. Further that the Court may interfere with the sentence if it is shown that it was manifestly excessive or so low as to amount to an injustice. [See Livingstone Kakooza v Uganda; SCCA No. 17 of 1993]

$\mathsf{S}$

The Appellant's complaint is that the deterrent sentence of 30 years' imprisonment was harsh, in the circumstances of the case. In his rejoinder, counsel for the Appellant introduced a new complaint that the trial Judge did not consider the mitigating factors and so handed down a sentence that was harsh and excessive in the circumstances of the case.

While handing down the sentence, at page 23 of the record of appeal, the trial Judge found and held, in part, as follows:

Issu.

"... So it as not only contrary to African Tradition and cultures to kill such on innocent child, but the actions of the convict were contrary to the Bible, and I am sure there are similar provisions in the Koran for Muslims. The children are the young trees of the forest and should be looked after very *well by all for purpose of posterity.*

$\mathsf{S}$

*I therefore agree with the submissions by counsel for state that a deterrent* sentence is called for despite being a young mon who con reform. Court is also mindful of the period of remand.

All in all, and in the circumstances, instead of 30 years, I deduct 3 years of remand and do hereby sentence you to serve 27 years' imprisonment."

We observed that the only mitigating factors that were stated on behalf of the Appellant were that he was a young man who was a first time offender. That he could therefore reform and lead a better life. It is clear from the ruling above that the trial Judge considered the mitigating factors. The

Appellant was stated to be 23 years old when he was charged with the 15 offence on 27^th January 2012. He was therefore about 26 years old when he was convicted.

While is true that the Court has to consider the age of the convict before imposing a custodial sentence under paragraph 9 $(3)$ (h) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) 20 Directions, 2013, the Court is also under the obligation to consider clause (d) and (e) of the same provision, the circumstances and nature of the crime committed, and the ruthlessness with which the offender committed it.

In this case, the post mortem report, which was admitted in evidence 25 without any objection from the defense, showed that the deceased was only two (2) years old. It also shows that he died as a result of a *"Severed*" cervical spine resulting from a forcefully broken neck." It is clear that

Jeson de l'archite

extreme force was applied by the Appellant onto the neck of a helpless child left in his care. The act was committed with extreme ruthlessness.

It has not been shown that the trial Judge failed to observe any of the principles he was required to before sentencing the Appellant. In view of

5 the fact that the maximum sentence for the offence of murder is death, the trial Judge properly exercised his discretion when he imposed a sentence of 27 years' imprisonment, after deducting the period of 3 years that the Appellant spent on remand. It is lawful and befitting in the circumstances and we shall not disturb it.

# 10 F'inal Result

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In conclusion, this appeal fails and it is dismissed. The Appellant shall continue to serve the sentence imposed by the trial Judge.

Dated at Arua this day of o24. /- t-+

Geoffrey Kiryabwire JUSTICE OF APPEAL

I 20 Irene Mulyagonja

JUSTICE OF APPEAL

Eva K Luswata JUSTICE OF APPEAL

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