[2021] UGSC 55

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT OF UGANDA AT **KAMPALA**

# (CORAM: OWINY-DOLLO, CJ; ARACH-AMOKO, MUGAMBA, **TUHAISE AND CHIBITA: JJ. SCI**

## CRIMINAL APPEAL NO. 25 OF 2019

# SEKANDI HASSAN::::::::::::::::::::::::::::::::::

## AND

# **UGANDA:::::::::::::::::::::::::::::::::::**

(Appeal from the judgment of the Court of Appeal (Musoke, Obura and Muhanguzi, JJA) in Criminal Appeal No. 86 of 2015 dated 25^th June, 15 $2019)$

### **JUDGMENT OF THE COURT**

This appeal arises from the decision of the Court of Appeal which upheld the death sentence imposed by the High Court on **Sekandi**

**Hassan** (hereinafter referred to as the appellant) in mitigation of 20 sentence in Criminal Session No.413 of 2014 for the offence of murder $c/s$ 188 and 189 of the Penal Code Act.

## **Background**

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The brief background of the case as found by the two courts is that the appellant and Rita Kemigisha (hereinafter referred to as "the 25 deceased") had been lovers since 1999. The deceased lived with her mother Sarah Nalugya (PW3) and her younger brother Patrick Busobozi (PW4). She was 16 years old at the time of her death. The appellant on the other hand was married with a family. Both of them were residents of Wakiso Trading Centre living in different 30 homes. Apparently, during some evenings, the appellant would stealthily go to PW3's residence and pay PW4 to get the deceased

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- to sneak out of her mother's home and go out with the appellant $\mathsf{S}$ to have sex. The deceased would normally return home. Eventually the deceased got pregnant. The mother was displeased and reported the matter to the LC officials of the area. - On 14^th March, 2000 at around 10.30pm the appellant once again went to PW3's residence and as usual requested PW4 to call the 10 deceased. PW4 obliged. The appellant went out with the deceased but she did not return home that night. PW3 was concerned and went out to search for the deceased. She did not find her. - The following morning, the deceased was found lying by the village path at Kisimbiri Zone, Wakiso Trading Centre in a critical 15 condition with severe acid burns. She could not talk comprehensibly. Margaret Nandaula (PW5), one of the people at the scene gave her a piece of paper and pencil and asked her to write down her name, the name of her mother and her home village and the name of the person who had taken her where she was 20 found in that condition. The deceased wrote her name, her mother's name and her home area as Wakiso. She also wrote the name of the person who took her to the place where she was found as "Hassan". She was thereafter taken to Mulago Hospital from where she died the same day. - 25

Following the deceased's death, the appellant was arrested as a suspect since he was the last person who was seen with the deceased and because his name had been written on the said piece of paper by the deceased. The appellant was indicted for murder c/s 188 and 189 of the Penal Code Act. He denied the offence and set up an alibi. He was tried, convicted and sentenced to death by

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- the High Court on 23^rd September, 2002. He appealed to the Court $\mathsf{S}$ of Appeal against conviction and sentence but was unsuccessful. He then appealed to the Supreme Court which upheld the conviction but remitted the case back to the trial court for resentencing following the decision of this Court in Susan Kigula & - 417 Ors v Attorney General, Constitutional Appeal No.03 of 10 **2006.** The Mitigation Judge also imposed a death sentence against the appellant which was confirmed by the Court of Appeal. Hence this appeal.

# **Ground of Appeal**

The sole ground of appeal in the appellant's Memorandum of 15 Appeal filed in this Court on 16^th December, 2020, is:

That the learned Justices of Appeal erred in law when they upheld an illegal sentence which did not take into account all the appellant's mitigating factors.

#### Representation 20

During the hearing of the appeal, Counsel Wakabala Susan represented the appellant on State brief while Mr. Badru Mulindwa, Senior Assistant Director of Public Prosecutions, appeared for the respondent. Both counsel filed their respective

written submissions which were adopted at the hearing. 25

# **Submissions**

Counsel for the appellant submitted that the Justices of the Court of Appeal did not give due weight to all the mitigating factors in favour of the appellant. According to counsel, the mitigating factors are the following:

First, the learned Justices did not consider that the appellant was $\mathsf{S}$ a first time offender and was remorseful about his act. Counsel referred to the case of **Mbunya Godfrey v Uganda, SCCA No.4 of 2011** to support this submission.

Secondly, she pointed out that the appellant was youthful, aged 28 years at the time of commission of the offence.

Thirdly, counsel submitted that from the prison reports, the appellant had acquired life skills and training during incarceration which had made him a better person who is capable of reform. She added that there was also a letter from the LC Chairperson indicating that the appellant would be welcome to their society

after serving a custodial sentence.

Counsel argued that under paragraph 14 of the Sentencing Guidelines, the court ought to take into account matters required to be taken into account by any law and should make an inquiry

on issues like a victim impact statement and community impact 20 statement in order to reach an appropriate sentence.

Lastly, Counsel contended that the circumstance of this case did not fall in the category of rare of the rarest and that it was not demonstrated that imprisonment for life or a custodial sentence would not serve the purpose.

Counsel therefore invited Court to take into account the above mitigating factors and set aside the death sentence. He asked Court to substitute it with a custodial sentence.

Counsel for the respondent opposed the appeal and supported the judgment of the Court of Appeal. Counsel submitted that both the 30

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High Court and the Court of Appeal considered all the mitigating $\mathsf{S}$ and aggravating factors and found that the aggravating factors outweighed the mitigating factors.

Counsel contended that there was overwhelming evidence on record to prove that the murder was premediated, meticulously planned and executed as the appellant obtained acid, lured the 10 deceased and took her to an isolated place where he mercilessly poured it on her.

Counsel submitted that this case fell in the ambit of the rarest of the rare and that the appellant deserved a death sentence because

a custodial sentence would be inadequate. Counsel referred to the 15 case of Wandubire Clement v Uganda, SCCA No.41 of 2017 to support his submissions.

Counsel therefore invited Court to uphold the death sentence and dismiss this appeal.

### Consideration of the appeal by Court 20

We have addressed ourselves to the record, submissions and also the authorities which Counsel for both parties cited.

The appellant's complaint is that the death sentence imposed on him was illegal. It was argued that the lower courts did not take into account all the appellant's mitigating factors as largely

addressed by counsel in her submissions.

Counsel for the respondent opposed this assertion and strongly supported the decisions of the lower courts.

The circumstances in which this Court can interfere with the sentence imposed by the lower court are well settled. 30

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It is a well-established principle that sentencing is a matter that $\mathsf{S}$ rests in the discretion of the trial court and that a sentence must depend on the facts of each case. As a principle, this Court will normally not interfere with exercise of discretion by the trial court unless it is demonstrated that the court acted on a wrong principle: factors: took into material account irrelevant ignored 10 considerations; or on the whole that the sentence is illegal or manifestly excessive. This is aptly articulated in various authorities for example, in **Rwabugande Moses v Uganda, SCCA** No. 25 of 2014 following the case of Kyalimpa Edward v Uganda, **SCCA No.10 of 1995** where this Court held that: 15

> "an appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion and it is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly excessive to amount to an injustice."

[See also; Kiwalabye vs Uganda, SCCA No. 143 of 2001, Kyabire Patrick & 3 Ors v Uganda, SCCA No. 62 of 2018 and 25 Bashasha sharif V Uganda, SCCA No. 82 of 2018, among others]

In the instant case, the record indicates that the re-sentencing Judge considered both the mitigating and aggravating factors advanced by counsel in their submissions before imposing a death sentence on the appellant.

- The appeal to the Court of Appeal was based on the fact that the $\mathsf{S}$ death sentence was harsh and manifestly excessive in the circumstances. The learned Justices re-evaluated the aggravating and mitigating factors and at page 7-9 of the judgment held as follows: - "In passing the sentence the re-sentencing judge 10 considered both the mitigating and aggravating factors. The mitigating factors were that the convict was a first offender who had been on remand for over 2 years. He was a family man with two children and a wife, and most importantly he has been in custody for over 17 years. 15 - The aggravating factors included the fact that the appellant committed an extremely serious offence in a gruesome manner. After impregnating the deceased who was only 16 years old, the appellant burnt her with acid to avoid possible prosecution of a defilement case since she was still a minor. The degree of injuries inflicted on the deceased's body were severe as revealed in the findings of Dr. Sendi Bwogi, who carried out the post mortem report which indicated that the cause of death was due to acid external deep burns covering about 54% of the body surface area including all the skin on the scalp, face, the arms, upper half of the legs and the trunk. The death of the deceased must have been quite traumatic to the victim's family. The appellant never expressed any remorse for what he had done.

The learned Justices then concluded as follows:

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We find that the aggravating factors in this case far outweighed the mitigating factors.

We find no reason to interfere with the sentence imposed by the re-sentencing Judge as it appears consistent with previous decisions of this court. The learned resentencing Judge took into consideration the mitigating and aggravating factors. In the learned re-sentencing Judge's discretion she found that the most appropriate sentence was the death penalty. We do not find the sentence too harsh or excessive in the circumstances. Without proof that this discretion was abused or that the learned re-sentencing Judge acted on a wrong principle or ignored some relevant factor, this court would have no lawful reason to interfere with the decision of the court below..."

The above quoted clearly shows that both the lower courts 20 considered the mitigating factors. However, as rightly found by the learned Justices, the aggravating factors far outweighed all the mitigating factors presented by the appellant given the circumstances of the case and the brutal manner the appellant had killed the deceased who genuinely loved him. This in our 25 opinion correctly put this case in the ambit of the rarest of the rare cases. We therefore cannot fault the learned Justices.

Regarding the submission by the appellant's counsel that the Prisons report indicated that he had acquired new life skills and was capable of reform and the Local Council letter indicating that he would be welcomed into their community after serving a

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- custodial sentence, this Court has stated in **Wandubire Clement** $\mathsf{S}$ **v Uganda** (supra) that social inquiry reports and Prisons reports are not mitigating factors but are relevant for purposes of remission or for the prerogative of mercy. We maintain this position. - It is our Judgment therefore, that the re-sentencing judge, having 10 taken into account both the relevant mitigating and aggravating factors judiciously exercised her discretion before sentencing the appellant to death and that the Court of Appeal in re-evaluating the evidence rightly found no lawful reason to interfere with the same. 15

We need to emphasize that although it is not compulsory, the death sentence is still a legal sentence and therefore courts can exercise their discretion and pass it like in the instant case.

In Wandubire Clement vs Uganda, (Supra), this Court stated as follows: 20

> "It is very important to note that the Suzan Kigula locus classicus did not abolish the death sentence. It simply renounced the compulsoriness of a death sentence upon being found guilty without a chance of mitigation. Therefore, the death sentence is still a legal sentence and can be handed down even after mitigation, if the judge comes to the conclusion that the aggravating factors outweigh the mitigating factors."

In Kyabire Partrick & 3 Ors v Uganda, (Supra), this Court upheld the death sentence imposed on the appellants who forcefully 30 removed the deceased from police custody and brutally murdered

them. One of the deceased was locked in a hut which was set $\mathsf{S}$ ablaze and burnt to ashes while the others were hacked to death and their bodies burnt as well.

In **Bashasha Sharif v Uganda**, (Supra), the appellant murdered a boy aged 9 years. The appellant was in love with the deceased's aunt who was 17 years old and stayed alone in one of her father's 10 houses. Her father had threatened the appellant with arrest for defiling his daughter. On the fateful day, the deceased went to his aunt's residence but did not find her. He however found the appellant. Fearing that the deceased would tell his grandfather that he had found the appellant at his aunt's home, the appellant 15 decided to kill the deceased. He cut the deceased into pieces, extracted his heart and ribs and hid the body parts into different

by this Court.

We therefore find no valid reason advanced by the appellant to $20$ warrant us to depart from the concurrent findings of the lower Courts. The gravity of the offence justified the death sentence imposed on the appellant. As a result, we find no merit in this appeal and accordingly dismiss it. The death sentence imposed on

places in the bush. The appellant's death sentence was confirmed

the appellant is hereby confirmed. 25

> Dated at Kampala this.................................... .2021

HON. JUSTICE ALFONSE OWINY-DOLLO **CHIEF JUSTICE**

HON. JUSTICE STELLA ARACH-AMOKO JUSTICE OF THE SUPREME COURT HON. JUSTICE PAUL MUGAMBA JUSTICE OF THE SUPREME COURT HON. JUSTICE PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT

HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT

$25$

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$10$

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