[1992] UGSC 33

IN THE SUPREME COURT OF UG AND A

AT MENGO

MANYINDO, D. C. J., PLATT, J. S. C. & SEATON, J. S. C.)

### CRIMINAL APPEAL NO. 25/9.

**BETWEEN**

::::::::::::::::::::::::::::: APPELLANT PATRICK OKELLO

**UG AND A** :::::::::::::::::::::::::::::::::::: RESPON

> Appeal against conviction and sentence of the High Court decision holden at Gulu (Hon. Mr. Justice G. W. Okello) dated 30th November, 1990).

# HIGH COURT CRIMINAL SESSION CASE NO. 65/90

# JUDGMENT OF THE COURT.

In this case the appellant was indicted in the High Court for aggravated robbery contrary to Sections 272 and 273(2) of the Penal Code. He was tried and convicted as charged and sentenced to death on 30/11/90. He appealed against both the conviction and sentence.

The prosecution case was that on $24/7/89$ , Esther Oryem (PW3), Patrick Okot (PW4) and Fidensio Olanya (PW5) were returning home from a market when they were stopped on the road by the appellant and another man. They were dressed in Mulitary uniform. The appellant was carrying a gun. At gun point (PW3) was robbed of her cash 75,050/-, the proceeds of fish she had sold in the market. It was the appellant who pocketed the money.

The appellant pleaded alibi, that at the material time he was elsewhere, attending the burial of a friend's child with Anywar (DW2). He conceded that on his arrest he had a gun which he was lawfully carrying for his protection.

## THE REPUBLIC OF UGANDA

Schade .)

# IN THE SUPREME COURT OF UGANDA AT MENGO

CRIMINAL APPEAL NO. 4/91

**BETWEEN**

DETER ANYNAD. $\cdot$ \*\*::::::::: APPELLANT AND **UGANDA** 11111111111111111111111111111111111 RESPONDENT

> (Appeal from the conviction and sentence of the High Court of Uganda at Gulu (Mr. Justice Okello) dated 30th November, 1990 in H. C. C. R. Case No. 73/90)

### REASONS FOR ORDERS

The appellant was convicted on pleading guilty to Manslaughtercontrary to Section 182(1) of the Penal Code Act and sentenced to 10 years imprisonment. The appellant appealed with leave against this sectsors. At the housing of the appeal, we dismissed the appeal and. stated that we would give our reasons.

The deceased met his death at the hands of the appellant after The appellant was attracted by the doceased's some hours of drinking. sister, and made some indecent advances. The deceased remonstrated with the appellant and asked him to behave like a gentleman. As the appellant was in a militia and armed with a gun, the deceased walked away. But the appellant followed the deceased and challenged him because the deceased had tried to protect his sister. The appellant then shot the deceased dead.

The appellant submitted that the learned trial Judge had erred in not taking into account the mitigating factors in the case.

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There s-d. that Finally it- was noted Acholi cus torn • The learned Judge observed that "the Court must take into account all the mitigating pleas", and all the wore so because the appellant had pleaded guilty and saved. the Court's time-, was also th\* fact tha-t th\* appellant had been one year and three months in remand. The learned Judge had noted the previous friendship between the appellant and deceased.. We take it that from the learned Judge's general phaaee co^ris>\*>i5 <\*11 he ■appellant was a first offender and that he had ' fairly heavy family commitments. His/age is not stated, but with five children he was certainly a mature, man that -the appcilaxi-t to. p=\y< blood cx?n>po3acai;iAn jlndoa- ths

- *2* •

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**1**

It does not appear that any miscarriage of justice occurred under this ground of appeal.

Was juajaif^tAy harsh. .that the sentence must adequately and accurately reflect the disapproval by the majority of the public of the offence vzith which the appellant is convicted. He said that, the' case • approximated to. murder, but the, • ; . > •. T-n^. xxo-o-arrd srau\*»d was that the appellw\*\* ' The point here to. be that the learned Judge considered ^a for the technicality of'intoxication, negativing the necessary malice aforethought, in order ^tzo constitute the offence of( iaurder, \*\*• *' ' \** ' • ' *\** . • » ' ' - Then the learned Judge assumed that the public of that region greatly detest and denounce the misuse of a gun by a public -person; since the r. gun had been given to . the appellant, for protecting ¹ defenceless people. The appellant, moreover, should not have taken his gun to a drinking party.

3/.

It was submitted that the learned Judge was overwhelmed by his conception of the public's opinion, when there was no evidence to support it.

With respect, it is unfortunate to downgrade so mmportant a defence as intoxication to the lefel of a mere technicality. It is a fundamental matter bearing on the intention of an accused, and separates this sort of crime from tendencies towards absolute offences. It is a defence based on well-known human conditions or newhaps failings, and it bears the stamp of understanding human beings warts and all. It would be a pity to place any criminal defence in the pejorative class of technicality.

However, it was right, ofcourse, to weigh the mitigating factors with the public aspect of crime, and it is correct to say that a sentence is a matter for the discretion of the Court, a discretion to be exercised judicially on sound principles, bearing both the public features of the crime in balance with the personal attributes of the offender. But with respect, it is unwise to stray too far into what is deemed to be the public attitute in a region, especially when dealing with what is presumed to be the view of the 'majority'. The facts of the case are sufficient in themselves. It was right to point out that the appellant should not have taken his gun to d drinking party. It is quite correct to say that the gun should have been used to protect people, and not to kill a man, when the assailant was tharted in his drunken amorous advances, by the deceased. That is generally so anti-social an action, that it must be determed.

Looking at the facts afresh for ourselves in the light of the circumstances of the case, we were still not persuaded that the sentence imposed was manifestly severe. We thought that on the whole the learned Judge came to a reasonable balance between the circum-

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stances of the Appellant personally and the public factor of the misuse of a gun by a public figure. Shorn of sertain sentiments, nevertheless, the sentence was not manifestly severe, and accordingly we dismissed the Appeal.

DELIBERED at Mengo this 26th day of February 1992

S. W. WAMBUZI CHIEF JUSTICE

A. H. O. ODER JUSTICE OF THE SUPREME COURT

H. G. PLATT: JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original.

B. F. B. BALIGUMIRA REGISTRAR SUPREME COURT