[2023] UGCA 378

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0056 OF 2016

ICORAM: R. Buteera, DC]; C. Gashirabake & O. Kihika, JlAl

### SSEKAYI LAWRENCE ::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

### UGANDA RESPONDENT

(Arising from the decision of the High Court of Uganda at Kampala, Masalu Musene, J, in Criminal Case No. 306 of 2013, dated l5'u April 2016) 15

JUDGMENT QF THE CQURT

#### Brief facts 20

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The facts are that on the 8'h day of February 2013, at Madirisa Zone, Makindye Division in Kampala District, at about midnight, Ssekayi Lawrence (appellant) returned home where he found his brother, Nsumba, involved in a fight with Tumwebaze Julius, (deceased). The appellant

- picked a stick and hit the deceased twice on the head. The deceased collapsed. He was carried by good Samaritans to his brother's house, a few metres away from the appellant's home. The deceased spent the night there and was taken to Mulago Hospital the following morning where he succumbed to the injuries 5 days later and died. 25 - The post-mortem revealed that the deceased had suffered grave injuries on the head which included a fractured skull, extradural haemorrhage, compressed right side of the brain, among others. The injuries were consistent with blunt force trauma being applied. o ³⁰

The appellant was arrested, indicted with Murder contrary to Sections 188 & 189 of the Penal Code Act, Cap I20. He denied the charges and after ^a full trial, he was convicted of Murder and sentenced to l8 years' 35

imprisonment.

Dissatisfied with the decision of the High Court, the appellant filed this appeal against sentence only.

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### Grounds of Appeal

- l. That the learned trial Judge erred in law and fact when he sentenced the appellant to an illegal sentence having failed to take into account Article 2 3 (8) of the Constitution of Uganda. - 2. That the learned trial Judge erred in law and fact when he overlooked material facts and mitigating factors as he sentenced the appellant to a harsh and excessive sentence given the obtaining circumstances of the case.

#### Representation 10

At the hearing of the Appeal, the appellant was represented by Ms. Maureen Kemigabo, on state brief, while the respondent was represented by Ms. Nabaasa Caroline Hope, Principal Assistant DPP, together with Innocent Aleto, State Attorney, both from the Office of the DPP.

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Counsel for the appellant moved under Section 132 (2) of the TIA and Rule 43 (3) (a) of the Judicature (Court of Appeal Rules) Directions, and sought leave of the Court to appeal against sentence only. The application was not objected to by counsel for the respondent. Court granted the leave to

appeal against sentence only. 20

Counsel for both parties applied to Court to adopt the written submissions that they had filed. This application was allowed. We shall, therefore, consider the written submissions together with relevant authorities to decide this Appeal.

# 2s Case for the appellant

Counsel for the appellant observed that the appellant was first remanded into custody on 4'h March 2013 and convicted on 15"' April 2016, which was a span of 3 years, 1 month and I I days. She submitted that the learned trial Judge only deducted three years, when sentencing the appellant.

She argued that the learned trial Judge engaged in a mathematical deduction and erred by failing to deduct the exact period that the appellant had spent on remand, thereby occasioning a miscarriage ofjustice.

5 She stated that it contravened Article 23 (8) of the Constitution of Uganda, and which provision has been elaborated and enunciated in a number of authorities including; Rwabugande Moses v Uganda; SCCA No. 25 of 2014, Nashimolo Paul Kibolo v Uganda; SCCA No. 46 of 2017, Segawa Joseph v Uganda; SCCA No. 65 of 2O16.

Counsel submitted that in the cases of Tumwesigye Justus & Anor v. Uganda; CACA No. 215 of 2Ol5 and Loporo Juma v Uganda; CACA No. 759 of 2014, this Court nullified the sentences of the trial courts for failure to arithmetically deduct the exact remand period of the appellants. Both cases were decided by the trial courts in 2 015 and 2014 respectively. 10

She submitted that for the purpose of maintaining the principl e of stare decisis, this Court is duty bound to follow and apply its earlier decisions without any form of discrimination. She prayed that Court deems the sentence handed to the appellant illegal and should be vacated. 15

### Ground 2

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Counsel submitted that, according to the testimony of PW5, the appellant returned home only to find the deceased fighting with his brother and that the appellant was only defending his brother when he assaulted the deceased with a stick only twice leading him to sustain injuries.

She argued that it ruled out and diminished the degree of premeditation and malice aforethought. It was her view that the learned trial Judge should 2s have directed himself to that material fact and handed down a much lesser sentence than that of l8 years' imprisonment.

She prayed that this material fact be adopted and taken into consideration by this honourable court as it was in the cases of Kidega Francis v Uganda;

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## CACA No. 570 of 2O15, Elungat Grace v Uganda; CACA No. 499 of 2015, and Arinaitwe Francis v Uganda; CACA No. 87 of 2O13.

In mitigation, counsel submitted that the appellant was a father of ⁶ children who were all under his care prior to his commission of the offence. She prayed that this factor be adopted in respect of his mitigating factor as was held in the case of Tumwesigye Anthony v Uganda; CACA No. 46 of 2012, where this Court held that:

> "l{as a father of 2 children and supported two orphans, called for a lesser sentence than what the trial Judge imposed."

Counsel further pointed out that the appellant has taken reformation programs while in prison as evidenced by his letter of recommendation. These programs included; Certificate in Peace Making and Conflict Resolution, Bible Way Correspondence and a Diploma (first class) in Entrepreneurship from Makerere University Business School. She also noted that the appellant's discipline while in custody has been exemplary to the rest as evidenced by the letter of recommendation and as such, ^a great sign towards reformation.

She contended that this Court has powers, under Section Il of the Judicature Act, to interfere with the sentence of the trial court if material facts and circumstances of the case were overlooked by the trial Judge or if the sentence was harsh and excessive. He cited Livingstone Kakooza v Uganda; SCCA No. 17 of 1993, on this point. 20

Counsel cited the case of John Kasimbazi & others v Uganda; CACA No. 167 of 2O13, where this Court reduced a sentence of Murder from 25 years to l0 years' imprisonment. He also referred to Kidega Francis v Uganda (supra), where this Court reduced a sentence of Murder from 25 years to l0 years. 25

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She thus prayed that this Court reduces the appellant's sentence from l8 years to a term of l0 years' imprisonment.

### Case for the respondent

### Ground I

5 10 Counsel for the respondent associated themselves with the principle in Rwabugande Moses v Uganda (supra) and submitted that the trial Judge was guided by the facts as submitted by defence counsel in mitigation, where she highlighted the remand period to be three years. She stated that the record indicates that the appellant was in court and chose not to object to his counsel's submission as regards remand period.

Counsel thus contended that the appellant had conceded to the three years as submitted by his lawyer and cannot fault the trial Judge for facts that were not adduced before him. It was counsel's view that the learned trial Judge exercised his legal duty and judiciously deducted the 3 years as the remand period.

Counsel cited the case of Dembere Samson v Uganda; CACA No. O47O of. 2O15, where the appellant appealed against his sentence on ground that the sentence of life imprisonment was harsh and excessive, in light of mitigating factors, among which was that the appellant had reformed postconviction. The trial Court stated that:

> "the post- conviction reformation while in custody is not a material factor to mitigate an offence which should be considered on the basis of factors which were available to the sentencing judge who exercised his discretion...we cannot take into account factors which were not available to the trial Judge."

Counsel submitted that the facts raised by the appellant in the instant case were not availed to the trial Judge and that the appellant should not use the Appeal to evade justice.

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Counsel further submitted that the facts in Rwabugande Moses (supra), on the requirement for the trial Judge to take into account the remand period, were distinguishable from the facts in the instant case. They argued that the record in Rwabugande Moses, the record of the trial court was silent on whether the trial Judge had considered the remand period. The referred to page I0 of Rwabugande Moses, where the Supreme Court referred to extracts of the lower court record as follows:

## "In sentencing the appellant, the trial Judge had stated as follows:

- I carefully listened to the antecedents cited by state counsel. I agree with Defence counsel that they are suggestive of indiscipline and irresponsibility by the convict with regard to the management of his cattle, they are not indicative of past conviction. I therefore deem the convict to be a 1'' offender... Nonetheless, as a punitive measure to like- minded persons that an attack to the human person shall not be condoned by the courts, I hereby sentence the convict to 35 years imprisonment from date hereof." 10 15 - Counsel submitted that in the instant case, the learned trial Judge considered the period of remand as submitted by defence counsel and the appellant who was present in court made no objection. They thus prayed that this court finds the sentence of the lower court legal and only exercise its power under Section I l of the Judicature Act to deduct the I month and I I days, without rendering the entire sentence of the trial court a nullity. 20 25

### Ground 2

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Counsel submitted that it is settled law that sentencing is the discretion of a trial Judge and an appellate court can only interfere with the sentence of the lower court where, in the exercise of its discretion, the court imposes a sentence which is manifestly excessive or so low as to amount to ^a

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miscarriage of justice or where the court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle (Sekandi Hassan v Uganda; SCCA No. 25 of 2019 and Othieno John v Uganda;

5 CACA No. L74of.2O2O)

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Counsel also cited Muhwezi Bayon v Uganda; Criminal Appeal No. 198 of 2O13 (delivered on 7 December 2016), where this Court cited with approval James s/o Yora v R; (f95O) f8 EACA L47 at 149, where the Court of Appeal for Eastern Africa held that:

"It may be that had this Court been trying the appellant it might have imposed a less severe sentence but that by itself is not a ground for interference and this Court will not ordinarily interfere with the discretion exercised by a trial judge in the matter of sentence. Unless it is evident that the judge had acted on some wrong principle or overlooked some material factor. " 10 15

20 25 Counsel referred to Guideline 6 (a) of the Constitution (Sentencing Guidelines for Courts of Judicature (Practice) Directions, Legal Notice No. 8 of 2013 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. They noted that the appellant herein was convicted of Murder, whose sentencing range under the Guidelines is from 30 years up to death. lt was their submission that the appellant came off lightly when he received a sentence of l5 years' imprisonment since that falls far below the starting range as per the Guidelines.

Counsel contended that the appellant had not demonstrated how ^a sentence of l5 years' imprisonment is harsh and excessive, in light of the aggravating circumstances including that life was lost at his hands.

On the appellant's contention that the crime was committed in the heat of passion, counsel for the respondent submitted that the appellant's action 30

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of hitting the deceased twice with a stick on the head, crushing his skull instantly, deserves a deterrent sentence, and when compared to the death sentence as prescribed by law, the appellant's l5 years' imprisonment was on the lower end and thus far from being harsh or excessive.

- Regarding the appellant's contention that he was a father of six children and had exhibited exemplary discipline while in custody and that he has furthered his education, counsel for the respondent submitted that these mitigating factors were raised by defence counsel at trial (page 57, paragraph l of the record) and they were in turn considered by the trial - Judge. It was counsel's view that the trial Judge acted with utmost lenience towards the appellant yet the appellant had acted in a barbaric manner of hitting the deceased twice with a stick, crashing his skull which Ied to his death. 10

Counsel thus prayed that Court finds that the sentence was neither harsh nor excessive in the circumstances. They implored Court to re- appraise the evidence as a whole and find that the sentence was not illegal; neither harsh nor excessive, the appellant has no merit and thus uphold the sentence of the trial court. 15

## Court's consideration of the Appeal

In Rwabugande Moses v Uganda; S. C. Criminal Appeal No. 25 of 2O14, the Supreme Court high-lighted the duty of the first appellate court as follows: 20

> "It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re-evaluation that it can reach its own conclusion, as

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## distinct from merely endorsing the conclusion of the trial court. [Baguma Fred vs. Uganda; SCCA N0.7 of 2OO4l"

It is this duty that we shall exercise while resolving this Appeal.

## Ground I

s Counsel for the appellant challenges the sentence imposed upon the appellant for having not considered the exact period the appellant had spent on remand. Incidentally, as was rightly argued by counsel for the respondent, the failure of the trial Judge to consider the alleged exact period arose from what was presented to the trial Judge. A look at page 57 10 of the record shows what defence counsel told court:

> 'The convict has been on remand for 3 ears. He has embraced education and has completed a Certificate in business of Makerere University. He is now pursuing a Diploma. He has Iearnt about forgiveness and religious healing. He has been highly recommended as far as discipline is concerned. He is a father of six children. I pray for a lenient sentence. '(Emphasis added)

Save for counsel's contention that the exact period that the appellant spent on remand prior to his conviction was not three years only but rather three years, I month and ll days, there is no cogent evidence to prove this claim. Counsel did not attach any document such as a Remand Warrant or some other evidence from Prison to show when the appellant was first received in custody.

25 At trial, counsel for the appellant stated the period that the trial Judge used in sentencing. Counsel for the appellant is now stating a different period with no evidence to prove the period she is now alleging. We would have no basis for considering the alleged I (one) month and I I (eleven) days. We would, therefore, have nothing to base on to find that the learned trial

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Judge erred in not taking into account the exact or full period that the appellant had spent on remand.

This ground fails for lack of proof.

## Ground 2

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5 10 Counsel for the appellant contended that the learned trial Judge overlooked material facts and mitigating factors, while sentencing the appellant. These factors were stated to be that; the appellant was a father of 6 (six) children, he has exemplified discipline and furthered his studies while in custody, and that he committed the offence while defending his brother which diminished the degree of premeditation and malice aforethought.

The above factors were presented by defence counsel at the time of trial and the learned trial Judge duly considered them before passing his sentence. To prove this, we shall make reference to the sentence passed by the trial Judge as given on pages 57 and 58 of the record of appeal. It states:

> 'l have carefully considered the mitigating factors raised by M/s Sarah Awelo as well as the aggravating factors by the state. Life was lost and courts cannot sit back to have people like convict who commit such offences go off lightly. It is unfortunate that Nsumbq- who was the real cause and who started the fiqht has not been annrehended as he would have qot a harsher penalty. However, the convict now has to get his share of the punishment.

The court has considered the recommendations on discioline of convict and other mitiqatinq factors. There fore, convict will not be sentenced to death or life imprisonment or 30 years as proposed by state counsel. In the premises and after considering all circumstances, instead of l8 years, I subtract the period of 25

3 years and remand. I do hereby sentence you to serve 15 years imprisonment ' (Sic) (Emphasis added)

Evidently, the learned trial Judge considered the mitigating factors being raised by counsel for the appellant. They cannot be reconsidered on appeal, as if they were not considered at trial.

As to the contention that the sentence of l5 years' imprisonment was harsh and excessive, we find this assertion not justified. The maximum penalty for Murder is death. The Sentencing Guidelines give a range of between 30 years and death, in cases of murder.

- When we consider the comparative principle, a number of cases would show that the appellant's sentence is not in any way out of the ordinary. For example, in Epuat Richard v Uganda; CACA No. f99 of 2011, ^a sentence of 30 years' imprisonment was set aside and substituted with one of I 5 years. ln Ariko Francis v Uganda; CACA No. 24L of 20ll, a l 7 years' imprisonment sentence for murder was confirmed. In Ssebuwufu Mohammed & others v Uganda; Consolidated Appeal Nos. 158 and 191 of 2O19, this Court in ensuring consistency and uniformity of sentences 10 15 - in cases of murder, reduced a sentence of 40 years' imprisonment to l9 years' imprisonment. - In this case, we would have no reason whatsoever to interfere with the sentence of l5 years' imprisonment that was handed down by the learned trial Judge. It is settled law that sentence is a discretion of a trial Judge and an appellate court will only interfere with a sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances of the case. See Kiwalabye Bernard v Uganda; S. C. Criminal Appeal No. 143 of 2001. 20 25

In the result, we find no merit in the Appeal and hereby dismiss it. The sentence is upheld.

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$\mathcal{Q}$ $\delta$ Dated at Kampala this .................................... ............. 2023

Richard Buteera

**Deputy Chief Justice** $\mathsf{S}$

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**Christopher Gashirabake**<br>**Justice of Appeal** $10$

$15\\$ Oscar Riflika Justice of Appeal $\mathbb{Z}^{\mathbb{Z}}$

$20$

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