[2024] UGCA 236

### ⁵ THE REPUBLIC OF UGANDA.

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

### CRIMINAL APPEAI NO: 252 OF 2017

### OYITE MICHAEL APPELLANT

### VERSUS

10 UGANDA RESPONDENT

(Aising from the decision of the Hon. Justice Vincent Okutanga in the High Court Criminal Sessdon Case No. O44 of 2O13 deliuered at Gulu)

### CORAM:

HON: MR. JUSTICE CHEBORION BARISHAI(I, JA

HON: LADY. JUSTICE HELLEN OBURA, JA 15

HON: LADY. JUSTICE EVA K. LUSWATA, JA

### JUDGMENT OF THE COURT

# Introduction

²⁰ This Appeal is from the decision of the High Court of Uganda sitting at Gulu in the High Court Criminal Case No. 044 of 2013, in which Hon. Mr. Justice Okwanga Vincent tried, convicted and sentenced the Appellant to 15 years' imprisonment for Aggravated Robbery contrary to Section 285 and 286 (2) of the Penal Code Act, Cap. 120.

#### 25 Background

The brief facts as can be ascertained from the Court record are that on the 13th day of December 2072 at Koro Lawjwatek in Gulu District, the Appellant stole property to wit a motorcycle Reg. No. UDW 427T Bajaj Boxer, Red in color valued at 3,000,000/= and cash 327,OO0/= all from Kabila Lawrence and at,

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- immediately before or immediately after was in possession of dangerous weapons to wit a knife and rope. The prosecution adduced evidence against the Appellant and he pleaded guilty to the charge. At the end of the triai, the learned trial judge found that the prosecution had proved its case beyond reasonable doubt and accordingly convicted and sentenced the Appellant to 15 years' imprisonment. - 10

The Appellant being dissatislied with the sentence passed by the trial judge lodged this Appeal on the following ground; -

l. Tlnt the learned tial Judge erred in lana uhen he sentenced the Appellant to 15 gears' imprisonment uhich sentence utas based on urong legal pinciples, Ltarsh and excessiue leading to a miscarriage of justice. 15

### Representation

At the hearing of the Appeal, Mr. Richard Kumbuga appeared for the Appellant on state brief, while Mr. Sam Oola, Senior Assistant DPP represented the Respondent. 20

## Appellant'e case

Counsel for the Appellant submitted that by imposing a sentence of 15 years' imprisonment upon the Appellant, the learned trial judge erred in law and the sentence was i1legal, null ald void.

He submitted that the learned trial judge did not properly take into account the principle of uniformity and the mitigating factors when sentencing thereby arriving at a harsh ald excessive sentence. He relied on the case of Aharlkundlra vs Ugand.a (Suprerrte Court Crlmlnal Appeal No. 27/2OOS), where it was held that consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of 1aw and requires that laws be applied with equality and without unjustifiable differentiation. In a similar case of Pte Kusemererua & Anr Vs Uganda" Court. oJ Appeal Crlmlnal Appeal No. 83/2O7O, t}:,e

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⁵ Appellants had been convicted of three counts of Aggravated robbery after a full triaJ. They were sentenced to 20 years' imprisonment on each count but on Appeal, the sentences were reduced to 13 and 12 years respectively for each of the Appellants.

Counsel averred that the Appellant was a first offender, a responsible man with 11 children and 2 wives, of the apparent age of 42 years at the time of commission of the offence, and capable of reforming. 10

He submitted that although the convict had in his possession a knife and a rope, he never used them upon the victim, the items allegedly stolen save for the money were recovered through the vigilance of the complainant and the Appellant had reached some understanding with the complainant to compensate

him for the expense and the time of losses suffered.

Counsel submitted that the sentence passed against the Appellant was harsh ald excessive and it should be substituted with a fairer and more lenient sentence of 8 years' imprisonment bearing in mind how much time the Appellant has spent and served in lawful custody.

### Respondent's case

Counsel submitted that there is merit in ground one of the Appeal, to the extent that the trial Judge did not take into account the period spent on remand by the Appellant contrary to Article 23(8) of the Constitution of the Republic of Uganda and the decision in Ruabugande Moses as Uganda, Supreme Court Crlmlnal

Appeal no. 25 of 2074, where it was held that taking into account the period spent on remand by a court is necessarily arithmetica-l. That this is because the period is known with certainty and precision: consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the

hnal sentence. The Supreme Court laid the principle that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision. 30

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⁵ He submitted that the Appellant had spent 4 years and 4 months on remartd and this time was not considered when passing the sentence. He invited this Court to invoke its powers under section 11 of the judicature Act to determine an appropriate sentence against the Appellant in the circumstances.

# Consideration of the Appeal

This is a first Appeal and as such this Court is required under Rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions to re-appraise the evidence and make its inferences on issues of law and fact while making allowance for the fact that we neither saw nor heard the witnesses. See: Pandya V R [1954 E. A 10

# 336, Moses and Another V Uganda, Supretne Court Crlmlnal Appeal No.7 of 1997 and Klfamunte V Uganda, Supreme Court Crlmlnal Appeal No.7O ol 1997. 15

Bearing in mind the above principles of law, we shall now proceed to consider the Appeal.

The Appellants complaint is that in view of the mitigating factors, he was handed a harsh and excessive sentence based on wrong legal principles. 20

It is a well-established principle in law that this Court will only intervene in a sentence imposed by a tria,l Court if the sentence is illegal or based on a wrong principle of law. It will also intervene if the trial Court has failed to consider a material factor in the case or has imposed a sentence that is unduly harsh and excessive given the circumstances. See James us R. (795O) 78 E. A. C. A. 747' Ogalo s/o Otooura vs R. (1954)24 D. A. C. A. 27O and Kizlto Senkula vs Uganda - S. C. Crtm. Appeal No. 24 of2OO1.

This Court will however not interfere with the sentence imposed by a trial Court, on the ground that it would have imposed a different sentence. While it was stated, in the case of Kyallmpa Edutard as Uganda - S. C. Crim. Appeal No. 70 oJ 7995, that the primary responsibility for sentencing is on the trial Court,

⁵ the Supreme Court made further clarification on the principles governing interference by the Appellate Court on sentencing, as follows: -

"An appropiate sentence is a matter for the discretion of the sentencing judge. Each case presents ifs oun facts upon uhich a judge exercises his discretion. It is the practice tLnt as an appellate Court, this Court utill not nonnallg interfere uith

the discretion of the sentencing judge unless the sentence is illegal, or unless court is satis..7fied that the sentence imposed bg the trial judge u-tas manifestlg so excessiue as to amount to an injustice: See Ogalo s/o Owoura us R. (1954) 21 E. A. C. A. 27O, R. vs Mohamedali Jamal (1948) 15 E. A. C. A. 126." 10

The Supreme Court expanded these principles further in Llvlngstone Kakooza

as Uganda - S. C. Crlm. Appeal No. 77 of 7993, by adding that an Appellate Court will also interfere with a sentence where the trial Court has 'ouerlooked some mateial factor'. lt also advised that 'sentences imposed in preuious cases orf similar nature, uthile not being precedents, do afford mateial for consideration. ln the case of Klutalabye Bentard os Uganda - S. C. Crtm. Appeal No. 743 oJ 2OO7, the Court clarified further on the principles governing intervention with 15 20

the sentence; by stating as follows: -

"The Appellate Court is not to interfere uith the sentence imposed bg the tial Court uthich has exercised its discretion on sentence unless the exercise of the discretion rs such tlnt it results in the sentence imposed to be manifestlg excessiue or so lou.t

as to amount to a miscarriage of justice, or where a tial Court ignores to consider an important matter or ciranmstances which ought to be considered uhile passing the sentence, or u.there the sentence imposed is urong in pinciple." 25

Counsel for the Appellant submitted that the learned trial judge did not take into consideration the mitigating factors in favor of the Appellant such as the period spent on remand, a first offender, a responsible man with 1 1 children and 2

wives, of the apparent age of 42 years at the time of commission of the offence and capable of reforming.

⁵ In reply, Counsel for the Respondent submitted that there is merit in ground one of the appeal, to the extent that the trial Judge did not take into account the period spent on remand by the Appellant contrary to Article23(8) of the Constitution of the Republic of Uganda and the decision in Ruabugande Moses as Uganda, Supretne Court Crlm,lnal Appeal no. 25 of 2O74, where it was held that taking into account the period spent on remand by a court is necessarily arithmetical. 10

ln Aharlkunda as Uganda (20787 UGSC 49,) it was held that the discretion at sentencing rests with the trial judge who has had the opportunity to observe the proceedings and assess the demeanour of the witnesses ftrst-hand.

We have had the opportunity to reappraise the sentence passed by the learned trial judge. At page 16 of the record, the learned trial judge used the following words while passing the sentence against the Appellant; 15

### Sentence and Reasons

The conuict is a .7trst offender tuho has pleaded guilty afier seeing the complainant and his uictim of the robbery in Court. He has now spent a total of O4 (four) gears and 04 (four) months on remand before this tia| a period tuhich I hereby put into account in this sentencing bg deducting hereof from mA sentence herein. He is a middle-aged man of 42 years, married with 11 children and O2 Luiues. He has reached some understanding with the complainant to compensate him for the expenses and the time of losses suffered for 20

- no use of the motorcgcle. Taking into account the seiousness of the offence and preualence of this tgpe of offences uithin the juisdiction and the moximum sentence of deoth Under Section 286(2) PCA and the fact that the motor cAcle u-tas recouered through the uigilance of the complainant, I sentence Oyite Michnel to 15 (Pifieen) gears imprisonment from todag. 25 - The trial judge stated that he took into account the period spent on remand by deducting it from the sentence. He then passed a sentence of 15 years' imprisonment however he did not demonstrate how he deducted the 4 years and 4 months the Appellant had spent on remand. In other words, the tria-l Judge 30

⁵ did not indicate from what sentence he had deducted the 4 years and 4 months to arrive at the linal sentence of 15 years' imprisonment. The resultant sentence is therefore illegal and we set aside.

We find that the trial Judge relied on an illegal principle when he failed to deduct the period spent on remand arithmetically following the decision in

- Runbugande V Uganda (Supra), where it was held that Article 23(8) of the Constitution essentially requires an arithmetic deduction of the remand period. Regulation 15 (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, requires the Court to "deduct" the period spent on remand from the sentence considered appropriate after all factors have 10 - been taken into account. This requires a mathematical deduction by way of setoff. 15

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms: "Where a person is anuicted and sentenced to a term of imprisonment for on offence, ang

period he or she spends in lauful custody in respect of the offence before tLe completion of his or her tial slnll be taken into account". ln Seganoa Joseph Vs. Uganda, Crlmlnal Appeal No. 65 of 2016, the Supreme Court held that their appreciation of Article 23(8) ofthe Constitution is that the consideration by Court of the period spent on remand by a convict is mandatory. A sentencing judge is under duty to consider the exact period spent on remand in upholding the provisions of the supreme law of the land for avoidance of imposing ambigrous sentences. The Court went on to hold that the period spent on remand must be arithmetically deducted. 20 25

We therefore, invoke the provisions of Sectlon 77 oJ the Judlcadtre Ad, CAP

13 which grants this Court the same power as that of the trial Court in the circumstances such as the instant one to impose a sentence we consider appropriate in the circumstances of this Appeal. Considering all the aggravating and mitigating factors as submitted by both the prosecution and the defense 30

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- ⁵ before the trial Court, a sentence of 15 years' imprisonment would be appropriate. Following the requirement of Article 23(8) of the Constitution, we deduct 4 years and 4 months the Appellant spent in lawful custody. The Appellant shall therefore, serve 10 years and 8 months from the date of conviction. - We uphold the award for compensation of 327,000/= (Three hundred twentyseven thousand shillings only) that was robbed from the victim. 10

The award of general damages is not supported by evidence and therefore disallowed. This is because, the court made no inquiry at all as to how it came to determine that it was reasonable sum to be paid as compensation.

15 Consequently, the Appeal partially succeeds.

## We so order.

Delivered at Kampala this t. a^y ot ......fu5...,2o2+ bo? ^|

Cheborion Barishaki JUSTICE OF APPEAL

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JUSTICE F APPEAL

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30 E a Luswa JUSTICE APPEAL

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