[2024] UGCA 194

## THE REPUBLIC OF UGANDA

# IN THE COI-IRT OF APPI,AL OF UGANDA AT ARUA

[Corarn: Gcoffrey Kiryabrvire. JAi Irene Mull'agonja, JAI Eva K. Lusrvata. JA]

### CRIMINAL APPEAL NO.5O2 OF 20I4

(Arising from Iligh Court Criminal Session Casc No. 0243 of 2013 at Gulu)

# I][t wLliN

OTJMA. ITJLITIS AI'I'ELLANT

#### ANI)

lr(;ANt)A Iil.tst,( )NI)t,. N't'

(An Appcal fiom the Judgment of the t{igh Court of Uganda His Lordship Hon. Justice Eudes Keitirima J. Delivcred on 22nddayof Novembcr20l3)

### . ITIDGMI'N'I' 0F TIIE COT]RT

#### Introduction

The Appellant was indicted and convicted ofthe offence ofAggravated Robbery c/s 285 and 286 (2) ofthe Penal Code Act Cap 120.

# 'I'hc Facts

On the ll'r' February 2013. the Appellant and anothcr still at large during the night, at Scnior Quarters cell in Laloo Division in Culu District carried out a violent robbery of the Kilara Patlick and taking from him a motorcycle Reg. No. UDY 575Y Baja.i Boxer. using a deadly weapon bcing a sickle knil'e and injuring the victim. On l7'h February 2013. the Appellant was intercepted with the said r.notorcycle in Kiryadongo District. '['he victim identified the Appellant as one ol'the assailants. The Appellant was examined on PF24 and lound to be ofsound rnind and aged 20years old. He rvas indicted ofthe offence. lft

1l

q,LL 6r\*

#### l)ccision of thc Trial Court

At the trial, the Appellant admitted all the I'acts of the oflt'ence and pleadcd guilty lbr which he was convicted on his orvn plea and was setrtenced to terms of imprisonment being 20 years' imprisonment. Dissatisfied, the Appcllant appcaled against conviction and sentence on the following grounds: -

Thc learned trial erred in law and in fact bl sentencing thc appcllant to such excessive and harsh prison terms, t'ithout deducting the remand pcriod and considering other mitigating factors.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Mr. Leku Charles M/S Solace Advocates and the Respondent by Mr. innocent Aleto Scnior State Attorney.

The parties sought the leave ofcourt to adopt their written submissions as their legal arguments in this Appeal which uas granted.

I'ou ers of thc Appcllate cou rt

We are alive to the duty of this court as a llrst appcllate court as decided in the case of Kifamunte Hcnry V Uganda SCCA No l0 ol'1997 to reappraise all the eviderrce at trial and come up with our orvn inlerences of law and fact.

't'he basis for setting aside a sentence imposcd by a trial court were generally set oul in Ogalo s/o C)woura v R ( 1954) 2 | EACA 270. ln that appcal, the appellant appealed against a sentence of l0 years' imprisonment with hard labour rvhich had been imposed for the offcnce of manslaughter. 'I'hc East Aliican Cou( of Appeal hcld that: -

"... The principles upon which an appellate court will acl in cxcrcising itsjurisdiction to review sentences are firmly establishcd. l'he Court does not alter a scntence on the mere ground that if the rnembers of the court had been trying the Appcllant they might have passed a sorrewhat dill'ercnt sentencc and it rvould not ordinarily intert'ere with thc discretion exercised by a lrial Judgc unlcss as rvas said in .lamcs v R. ( | 950) I 8 EACA 147, "il is ct,idant that lha Jutlga hus utlad upon rrong principlc or ovtrlookcd sonrc ntoterictl ./ac'lor". To this n,e rvould also add a third criterion. namely. that tltc sentcnce is manil'estly

2l

0,tc rsv\*^

l/, y.

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*^"

Furthermore, this Court in Alex Biryomunsi V Uganda CACA No 464 of 206 (following Katureebe Boaz V Uganda SCCA No 066 of 2011) it was held: -

"Consistency in sentencing is neither a mitigating nor an aggravating factor, the sentence imposed lies in the discretion of the court which in exercise thereof may consider sentences *imposed in other cases of a similar nature...*"

In Muhwezi Bayon V Uganda Criminal Appeal No. 198 of 2013, at page 6 of the judgment, this Court cited with approval James s/o Yoram V R (1950) 18 EACA 147, where the court of Appeal for Eastern Africa held that: -

"It may be that this court been trying the appellant it might have imposed a lesser sentence but that by itself is not a ground for interference and this court will not ordinarily interfere with the discretion exercised by the trial judge in the matter of sentence. Unless it is evidence that the trial judge acted on some wrong principle or over looked some wrong *principle or overlooked some material factor.*" *(emphasis mine)*

Ground No. 1: The learned trial erred in law and in fact by sentencing the appellant to such excessive and harsh prison terms, without deducting the remand period and considering other mitigating factors.

Lohon.

#### Submissions of Appellant

Counsel for the Appellant submitted that the learned Trial Judge should be faulted for failing to properly exercisc his discretion rvhen he overweighed the aggravating factors and ignored or gave lcss weight to the mitigating factors and thus ended up imposing a deterrent senlence.

Counsel further submitted that the sentence of20 years should be found to be harsh and excessive considering lhe circumslances of this case. The appellant invites this appellate Court to consider the mitigating factors and thus reduce the sentence to a range of I 0- I 5 years' imprisonment which is reasonable and befitting for a plea of guilty and moreover the victim is alive and able bodied despite the injury and more so the motorcycle was recovcred and restored to the victim. I'he remand period of9 months and 4 days be deducted and set offin accordance rvith the constitutional requ irement citcd above.

#### Su bnr issions of Rcspondcnt

Counsel lbr the n ppellant submitted that thc sentence of 20 years' imprisonment for Aggravated Robbery was neithcr harsh nor excessive or inconsistcnt with cases of sirnilar nature. Opposing Counsel had not demonstrated horv it was harsh and excessive. Further that sentencing was at the discretion ofthc l-rial Judge and the Appellate Court.

Counsel argued that the Sentencing Cuidclines required Court to ensure consistency rvith appropriate sentencing levels. ln the present case the sentence of20 years was meted out on the Appellant which was rvay below the minimum senlence under the Sentencing Cuidelines.'l'he vicrim suslained injurics on his neck and hands during the attack. and the Appellant madc ofl'rvith the victim's motorcycle. which shows that it was a premeditatcd crime. 'l'herefore, the learned Trial Judge exercised his discretion judiciously.

Counsel argued that there was an abundance of cases in both the Supreme Court and Court of Appeal that lound sentences of20 years' imprisonment and beyond for tlre offence ofAggravated Robbery as neither being harsh nor excessive. The interference rvilh a scnlence should be on ^a matter of law and not emotion, and in this case the opposing Counscl had l'ailed to demonstrale the harshness and excessivcness in light of the maxinrum sentence under the Penal Code and the Sentencing Guidelines.

{-

4l

4".r-tc

Counsel submitted that the'lrial Judge while sentencing the Appellant took into consideration the period the Appellant spent on remand by stating a( Page 8. paragraph 2 ofthe Record ofAppeal that:

" l halc considcred thc period the convict has spct'tt on rcmand and I v'ill now sentenca hint to 20 ycars in prison. For tha utoidancc of doubt, thc durulion oJ lhe sentence begins to ntn.frotn thc dale hcrcof. "

Counsel submitted that the legal regime at the time ofsentencing the Appellant did not require the Trial Judge to mathematically deduct the pcriod that the Appellant had spent on remand. l'he arithmetical deduction was not applicable at the time ofsentencing. hence the Trial judge rightly applied the law as it rvas then.

#### Findings and Decisions of Court

We have considered lhe submissions of both Counsel lbr which we are gratelul.

#### Miligalion/harshness

Under this ground. we addressed our minds to the case ofBogere Moses v Uganda SCCA No.0l oI 1997; Hcnry Kifamunte v Uganda (Supra) and Rule 30(l)(a) of the Judicature (Court of Appel) Rules rvhich provide that an appellate court has a duty to reappraise thc evidence and drarv inferences from thc facts; the court may also interferc with the dccision of the trial court if the decision is illegal and manifestly excessive (see Kiwalabye v Uganda (supra)).

Counsel for the Appellant submitted tlrat the l'rial Judge called for a delerrent sentence arriving at 20 years' imprisonment. However. the PF24 fbrm showed that the Appellanl was 20 years old. and therefore his age should have been put into consideration for mitigation ol'the sentence. Further. as the stolen motorcycle was recovered and restored to the victim, this too lrad the potential of mitigating the loss by the victim. He contended that the injuries to the neck and fingers were classified as grievous harm. but the victim remained able bodied.

Counsel for the Appellant further subm itted that the court record showcd that on the 2 I s' February, 2013 the Appellant pleaded guilty to the ofl'ence. and was then sentenced to 20 years. Counsel argued that lhe sentence of 20 years rvas too harsh for an Appellant that had pleaded guilty right from arrest and at thc trial.

sl

4AC

{

On the contrary, Counsel for the Respondent argued that opposing Counsel had not demonstrated how a sentence of 20 years' imprisonment is excessive and harsh in light of the maximum sentence of death, the second highest sentence of life imprisonment for Aggravated Robbery as provided for under Sections 285 and 286 of the Penal Code Act Cap 120. Therefore, for a sentence to be excessive and harsh, the sentence would be over and above the prescribed sentence by law.

Counsel referred Court to the case of Muhwezi Bayon v Uganda Criminal Appeal No. 198 of **2013** at **page 6** of the Judgment, where the Court of Appeal cited and relied on the case of James s/o Yoram v R (1950) 18 EACA 147, where the Court of Appeal for East Africa held that: -

... It may be that this court been trying the appellant it might have imposed a less sentence but that by itself is not a ground for interference and this court will not ordinarily interfere with the discretion exercised by the trial judge in the matter of sentence. Unless it is evidence that the trial judge acted on some wrong principle or overlooked some wrong *principle or overlooked some material factor." (emphasis mine)*

We have also addressed ourselves to The Constitution (Sentencing Guidelines for the Courts of Judicature) Practice Directions Legal Notice No.08 of 2013, Guideline 6(a) which provides that every Court shall, when sentencing an offender take into account the gravity of the offence, including the degree of culpability of the offender. Paragraph 6 (c) of the Sentencing Guidelines require Court to ensure consistency with appropriate sentencing levels. The sentencing range for Aggravated Robbery under **Part 1** of the **Third Schedule** is 35 years to death. Therefore 20 years is well below the minimum sentence under the guidelines.

Further, under Paragraph 32 of the Sentencing Guidelines which enumerate the factors that mitigate the sentence for robbery, which among others include: -

- *(a) Lack of premeditation;* - (b) Whether the accused had a lesser role in the commission of the crime; - $(c)$ .... - *(d) Whether the offender is a first time offender;* - (e) ...: - (f) *Whether there was no injury or harm occasioned or no threat of death or harm.*

Paragraph 31(a) of the Sentencing Guidelines, provides for the degree of injury sustained by the victim as an aggravating factor.

6 | Page

$\overline{1}$

ln light of the circumstances ofthe case, we have found that the learned Trial Judge exercised his discretion rvithin the precincts ofthe Iarv in asscssing the mitigating t'actors against the aggravating factors before arriving at an appropriate senlence of 20 years.

# Pa ritl'/co n si sl e n c.t of senlence

Counsel for the Appellant stresscd the need for parity or consistency ofsentencing.

Counsel rel'erred Court to the case of Tukamuhebwa David Junior and Another V Uganda SCCA No. 59 of 2016. rvhere the Appellants sentence of l8 years' imprisonmcnt was sct aside arrd substituted with l6 years.5 months' imprisonment on CT.l. ofaggravated robbery and the ^I year imposed for rape was maintained. The Supremc Court also noted that the Couft of Appeal had not considered the remand period of 3 ycars and 7 months rvhile sentencing the Appellant and therefore deducted it from the proposed sentence.

In the case of Saava Sedu Tonny V Uganda, CA No.06 of 2014 (unreported dated l2rl' August 2019), thc Court ofAppeal set aside the senlence of35 years rvhich had been imposed for robbery and substituted rvith 17 years and l-month imprisonment. The Court lurther noted that the Appcllant was 24 years old at the time of commission of thc of'fence and rvas Iikely to refbrm. []e was a first-timc ol'fendcr who deserves an appropriate sentence which is rvithin the established range for the first time oflenders.

On the contrary, Counsel for the Respondent argued that Paragraph 6(c) of the Sentencing Guidelincs requires courts to ensure consistency with appropriate sentencing levels. thcre was ^a plelhora ol'case where the Supreme Court and Courr of Appeal lbund the sentsnces ol'20-year imprisonment for the oll-ence ol'Aggravated robbery. neilher harsh nor exccssive.

Counsel rclerred Court to the case ofBakubye Muzamiru and Another v Uganda SCCS No. 56 of20l5. where the appcllants were contesting the harshness of30 years fbr Aggravated Robbcry and 40 ycars for Murder.'[he Supreme Court upheld the respectivc sentences and held: -

''...11 is tntr vicrl' that l0 und 30.tcurs' inq)riso,t,nc,tl sct a,t(es varc neilhcr pranised on wnsng princ'iplc.s o/ lut'nor cxces:;iva. Bollt u utnviclittn o/ nurdcr und uggruvulad robhen uttrucl lht clculh sanlcnt'c us u ntasinntnt .tcntance . 7'hc lriul .iudgc untl thc.iusticas o/ Appaul in cxerci.se o/ lhe ir di.scration did rutl utlurd thc nruxintutn penullies prascribcd h.r' luv .fbr auch of thc raspacliv ol/tnte. "

7l

4LIL Triw

{,

In Lulc Akim Vs Uganda Court of Appeal Criminal Appcal No.274 of 2015. cited rvith approval in Birungi Bcn and Anothcr Criminal Appeal No. 534 of 2014. the Court ofAppeal upheld a scntence ol'20 ycars' imprisonnrent lbr Aggravated Robbcry that had bccn imposed by the Trial Court, which they found to he neither harsh nor excessive.

In Kwalijuka Alcx v Uganda Court of Appcal No. 532 of 2013.judgment delivered on 23'd Decembcr 2022. thc Court ofAppeal substituted a sentence of25 ycars' imprisonnrent to 20 years' imprisonment for Aggravated Robbery u,here the appellant had plcaded guilt-v" at trial.

In Opulot Sharifand Ojangole Petcr v Uganda, Court ofAppeal No. 0730 oI2014. this Court reduced a sentencc ol'40 years' imprisonment to 32 ycars' imprisonmcnt lbr Aggravated Robbery. Similarly. the Suprc'nrc Court upheld the sentence ol'32 years imposed on Ojangolc Peter by thc Court ol'Appeal in Ojangole Peter v Uganda SCCA No.34 of 2017 .

With regard to consistency ofsentencing. it is clear that 20 years is not only harsh considering the maximum penalty ol'death. and is consistent rvith the lower range ol'sentences tbr this offencc.

#### Periotl spenl on remand

Counsel fbr Appellant argued that Appellants sentence should be found illegal considering that the Trial Judge failed to dcduct the remand period from the term of sentence. as is the spirit of Paragraph l5(2) of the Sentencing Guidelines which states that. "the court shall deduct the period spent on remand liom the sentence considered appropriate aller all factors have been taken into account."

In the case ofUmar Scbbide v Uganda No.2J of 2002. the Supreme Court held that lhe Court of Appeal should have deducted 3 ycars' remand pcriod from the I I years' prison term and substitutcd it u ith 8 ycars' imprisonmcnt.

Further Clounsel for the Respondent argued that in thc case of Umar Scbbide v Uganda (Supra), Court clarified that consideration lbr thc renrand pcriod is an arithmctical exercise as it is known wilh ccrtainty.

On thc contrary. Counscl lbr the Respondenl contended that at thc time ol' sentencing, llrc Appellant did not requirc the Trial Judge to rnathe rnatically deduct thc period that the Appellant had spent on remand.'l he Appellant in the instant case was sentenced on the 2lllll2013. 'l-he

(

8l

fr"",

lDL

requirement to apply the arithmetic formula to deduct the pcriod spent on remand commenced rvith Rwabugande Moses v Uganda SCCA No.25 of 2014 rvhich was dclivered on 3'd March 201 7.

Similarly. in Nashimolo Paul Kibolo v tlganda SCCA No.46 of 2017, it rvas held that:

"... The deci.vion (Rwabugondel tu:; dclivcrcd on the 3"t llorch 2017. In accorduncc rtith thc print'iplc o/ prcccdant, lhi.\ courl and ctntrls hclott hat'a lo./itllott lha po:ilion o/ lav ./rom the datc hcnce ./brth. "

In the instant case it would be incorrect for this Cou( to fault the Trial Court. We find no reason lo warrant interference with thc sentence since. parit) in sentencing, pcriod spent on remand. and the aggravating and mitigating factors were all put into consideration before sentencing the Appellant.

### Final Decision

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

- l. The Appeal is dismissed. - 2. You have the right to appeal against this Sentence to the Supreme Court.

# We so order.

Datcd at .... This e{ . ... Day of ²⁰²¹

Hon. I\lr ^tice (ieoffrel Kinabu irc

JT]SI'ICE OF APPE,AL

sl

frr',-

4-1L

)

Ixanya

Hon. Lady Justice Irene Mulyagonja

$JUSTICE OF APPEAL$ $\overline{ }$

$\overline{a}$

$\overline{4}$

Hon. Lady Justice Eva K. Luswata JUSTICE OF APPEAL

$\bullet$