[2025] UGCA 14

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT GULU

[Coram. Egonda-Ntende, Tibulya & Kazibwe, JJA]

## CRIMINAL APPEAL NO. 0363 OF 2015

(Arising from High Courr Crinrinal Session Case No. 47g of 2014 at Gulu.)

#### BE-fWEI]N

oYoo PETER ........ APPELLANT

#### AND

(An appeal arising from the .iudgment of the High cot\*t of ugancla at Gulu before Margaret Mutonyi, J dated 6tt, Novembcr 20 l4)

#### JUDGMENT OF THE COTIRT.

This is an appeal against sentence only. The appellant was indicted with murder contrary to sections 188 and 189 ofthe Penal code Act. The particulars ofthe offence were that on 61r' November 2013 at Dog Narn village, paibony parish in Kitgum District, he murdered Ornonv Richard.

#### Background

The facts as admitted by the appellant are that on the 6tl,day of November 2013, while the deceased omony Richard and Uhuru Richard were sleeping in their hut, the appellant opened the door to the hut, which awakened Uhuru Richard. Uhuru saw the appellant hit the deceased on the heatl with a huge stone several times. when Uhuru tried to intervene, the appellant turned on him and hit hirn with a stone on his

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face. The appellant escaped as Uhuru made an alarm. The alarm attracted other people who chased the appellant. They arrested him and took him to Kitgum Police Station. The deceased was taken to Kitgum Health Centre III from where he died. The appellant was subsequently convicted on his own plea of guilty and sentenced to 30 years' imprisonment. Dissatisfied with the sentence, he appealed on two grounds: -

- 1. The learned trial judge erred in law and fact when she failed to take into account the period spent on remand before imposing the sentence of 30 years' imprisonment. - 2. The learned trial judge erred in law and fact when she imposed a sentence of 30 years' imprisonment which was harsh and excessive in the circumstances of the case.

## Representation.

At the hearing, the appellant was represented by Mr. Paul Layoo while the respondent was represented by Mr. Joseph Kyomuhendo, a Chief State Attorney.

# **Submissions by Counsel.**

**Regarding ground 1,** counsel for the appellant submitted that the sentence of 30 years is illegal. He argued that the learned judge did not consider the provisions of Article 23(8) of the Constitution which provides that where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

Counsel relied on Rwabugande Moses Vs. Uganda t2ol7 I UGSC g, for the proposition that the period which a convict spends on remand must be considered and arithmetically deducted from a cuslodial sentence.

Regarding ground 2' Counsel subrnitted that the learned judge did not consider the appellant's mitigating factors. He stated that the appellant was a first offender who had pleaded guilty. Further that he is a family heacl with four children and six dependents. Also, that the appellant is capable of refbrm.

counsel relied on oyita Sam vs uganda, . ACA No.307 0f 2010 in which this court issued a sentence of25 years' irnprisonment on trre appeilant who had pleaded guilty of murdering his brother. In Emeju Juventine's Uganda,, CACA No. 95 of 2014' this court reduced a sentence of23 1,ears to 1g years for the appellant who had pleaded guilty of murder.

counsel for the respondent conceded to the complaint that the Iearnedjudge did not consider the period which the appellant hacl spent on remand. He submitted that considering the supreme court decisions Kizito Senkula vs Uga ndal2002t UGSC 36 and Rwabugande Moses vs Uganda, (supra), trre sentence of 30 years is i,egal.

In response to ground 2, counsel prayed that the sentence of 30 years should be maintained considering the circumstances of this case which are that the appellant committed the offence in a brutal manner and with premeditation. counsel cited Aria Angelo vs Uganda[2022lUGCA 15, in which the appelrant was sentenced to ³⁶years and 8 months' imprisonment under a prea bargain agreement. He also cited sebuliba siraj vs Uganda, CACA No.3lg of 200g, (unreported) in which rhis court

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upheld a sentence of life imprisonment for the appellant who had pleaded guilty of murder.

# **Consideration of the appeal.**

As an appellate court, we can only interfere with sentence only where it is illegal, or founded on a wrong principle of the law, or as a result of the trial court's failure to consider a material factor. We may also interfere with a sentence which is harsh and manifestly excessive in the circumstances of the case. See Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported).

Regarding the complaint that the learned judge did not consider the appellant's mitigating factors, we have looked at the sentencing record. The learned judge stated thus: -

"The accused was convicted on his own plea of guilty [emphasis ours] for the offence of murder contrary to section 188 and 189 of the Penal Code Act. Murder attracts a death penalty as maximum. The convict's plea of guilty has been taken as a sign of remorsefulness which is a mitigating factor. [emphasis ours] However, he killed a young boy of 16 years robbing the family of their child. He was also killed in a savage way as he was hit by a big stone on the head. He did not hit him once, but many times; this calls for a deterrent sentence. Adults have an obligation to protect young children. The age difference between the convict and his victim is about 20 years. He robbed him of his life which calls for a punitive and deterrent sentence. Instead of guiding and protecting young children, he decided to end his life in the most barbaric and gruesome manner. Being a child of 16 years did not make him a less human being. Consequently, he has to pay the price for vicious conduct. He is sentenced to 30 years' imprisonment."

It had been submitted for the appellant that he "... i.s tr first o;f.fender and has saved court's time by pleading guilty. He is a married nnn with.fbur chilclren and six others of his late brother under his care. He is an o,phan taking care of hi.s elderly mother who depends solely on the cont,ict. Het hos becn gn renrand.since l4tt, November 2013, almost one year. In the pre:misa t,e pra.vJbr lenianc.l, because of those factors. ^Alighter sentence of about l0 years wot,t k.l be strffic.ienr. 20 years as proposed by the state would be grave given the fact thal he hcrs Stleatletl guilg,. The deceased was not related to the accused, and they wer(, not living in rhe 'ante homestead".

From the above sentencing notes, it is eviderrt that the learned trial considered only one mitigating factor, the fact thal the appellant had pleaded guilty to the offence. other factors such as that he was a f'irst offi:ncler. [{e was of a young age. He is ^a married man with four children and si>r other.s c,f his late brother under his care. He is an orphan taking care of his elclerly motl'er wh. deper.rds solely on the convict. These factors that were brought to the atten.iion of the learned trial judge were not considered. we therefbre accept the complaint thal nrost of the mitigating factors were not considered.

Regarding the complaint that the learned j Lulge did not consider the period which the appellant spent remand, Anicle 23(8) of the constitution which was the prevailing law when the appellants were sentenced pr.o,,ides thus:

" Ll/here a person is convicted and ,s,:n,,zncecl to (t term o.l'imprisonment for an offence, any period he or she' spend,s' in rav;fitr cu'ktcry in respect of the offence before the completion ofhis or her triar shctll be taken inro account {emphasis added) in imposing the term of intpris:tnnrent,'.

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While the law is crafted in mandatory terms, the record indicates that the learned judge did not direct her mind to the fact that the appellant had spent one year on remand.

Counsel for the appellant relied on Rwabugande Moses Vs. Uganda, (supra), for the proposition that the period which a convict spends on remand must be considered and arithmetically deducted from a custodial sentence.

We, however, note that this case was decided in 2013 before the Rwabugande decision. (Rwabugande was decided on 3rd March 2017) The learned judge cannot therefore be faulted for having not arithmetically deducted the remand period from the sentence of 30 years. Since, however, the judge neither considered the mitigating factors nor the period the appellant had spent on remand as required under Article 23 (8) of the Constitution, we find that the sentence of 30 years imprisonment is illegal. We therefore set it aside.

We invoke the powers of this court under section 11 of the Judicature Act to resentence the appellant.

We have considered that the appellant was a first offender, and that he pleaded guilty which indicates that he was remorseful. We have also considered that he was 36 years old when he committed the offence, and that he was capable of reform. We note that he is a father to four children and that he has six dependents.

On the other hand, we have considered that he committed an offence that attracts a maximum sentence of death, and that he committed it in a brutal manner, murdering a 16-year-old child.

It is now established that there is need to consider consistency of sentences while determining sentences for similar off'ences committed under similar circumstances.

(see Guideline No. 6(c) of the constitution (Sentencing Guidelines for courts of Judicature) (Practice) Directions, 2013 and Kakooza vs uganda {1994} UGSC r)

In Baruku Asuman vs. Uganda, court of Appear criminar Appear No, 3g7 of 20I4, (unreported) this court, underscored the inrpoftance of consistency of sentences.

we accordingly considered the sentenr:es th;rt have been issued in similar cases. In Anguyo Robert vs Uganda [20l6luGCA 39, the appellant murdered the victim by hitting his head with a harnmer. IIe was convicted ol murder on his own plea of guilty. on appeal, this couft founcl that the remand period hacl not been taken into account and sentenced the Appellant to l8 years, irnprisonment.

In Tom sande vs Uganda t20l4lUGCA il, this court confirmed a sentence of lg years for the appellant who had pleaded guilty ibr the offence of murder.

In oyita sam vs Uganda, CACA No. 307 of 2010, (unreported) the appellant killed his brother over a land dispute. l{e pleaded guilty to having murdered him and was sentenced to death by the tfial judge. on appcal, this court substituted the death sentence with a sentence of25 vears.

Upon taking into consideration both tl.re aggravating and mitigating factors which were brought to the court's attention, we think that a ser.rtence of l g years, imprisonment is appropriate in tl.re circumstances of this case.

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Since we have determined this sentence during the dispensation of the **Rwabugande** guidelines, we deduct the appellant's remand period of 1 year, and order that he shall serve 17 years imprisonment from the date of his conviction, 7^th November 2014.

We so order.

Signed, dated and delivered at Gulu this ......day of ................................... $2025.$

$P$ .

Fredrick Egonda-Ntende **Justice of Appeal**

**Margaret Tibulya Justice of Appeal**

**Moses Kazibwe Kawumi Justice of Appeal**