[2023] UGCA 243

# ⁵ THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

(Coram: Richard Buteera, DCJ, Catherine Bamugemereire, & Eva K. Luswata, JJA)

CRIMINAL APPEAL NO. 0156 OF 2018

#### BETWEEN

SSERUUMA JUDE :::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### AND

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

[Appeal from the Judgment of Margaret Tibulya J of the High Court sitting at Masaka in Criminal Session No. OOO2 of 2O15 delivered on 7th August, 20181

#### JUDGMENT OF THE COURT

## Introduction

1] The appellants were jointly indicted with two counts. Count one being the offence of murder contrary to Section 188 & 189 of the Penal Code Act. The particulars of the indictment were that Kalema Daudi, Kabiito Swaibu, Ssesimba Zubairu, Gayi Isma, Sseruuma Jude alias Kalani, and Kabenge Ronald during the night of 2"d February, 2Ol4 at Industry Zone, Lwengo Town

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- ⁵ Council in Lwengo District murdered Ssamula Moses. Count two being the offence ofaggravated robbery contrary to Section 285 & 286 (2\ of the Penal Code Act. The particulars of the indictment were that Kalema Daudi, Kabiito Swaibu, Ssesimba Zubairu, Sseruuma Jude a/ias Kalani, Lutaaya Richard and Kabenge Ronald during the night of 2"d Februaq,2Ol4 at Industry Zone, Lwengo Town Council in the Lwengo District, did rob Ssamula Moses of cash 2OO,OOOI=, CDS, a bag and a small Bible, and at the time of, or immediately after the said robbery, murdered the said Ssamula Moses. The accused persons denied the offence and following a full trial, Kalema Daudi (A1), Kabiito Swaibu (A2) and Ssesimba Zubairi (A3) were acquitted. Sseruma Jude (A4) and A5 (Kabenge Ronald) were convicted and sentenced to 30 years' imprisonment on each count, to run concurrently. 10 15 - ²⁰ 2l The facts admitted by the trial Judge in her judgment, are that on 2"d FebruarJr 2014, PW1 Mujuzi John found the dead body of the late Ssamula Moses (hereinafter the deceased) by the roadside with blood oozing from the mouth and nose. According to PW2 Ntanda Sula, the deceased's uncle, A2 (Swaibu Kabiito) participated in digging the deceased's grave. That the investigations in the murder followed a lead that A5 (Kabenge) owed the deceased money on account of sale of cows which belonged to the deceased. One Richard (the appellant's brother), told PW2 that the appellant and A5 (Kabenge) had been seen in the morning of the following day along the road which goes to Nakyenyi. He reported the matter to the police. A1 (Kalema) whose 25 30

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⁵ cap had been recovered from the crime scene was by then already in police custody. PW2 got information that A.4 (the appellant) had left a motorcycle with his mother with instructions that she takes it to a one Kagwa, on the pretext that he (A4 the appellant) had obtained a driver's job at Kasambya. PW2 talked to the appellant over his mother's phone and during that conversation, the appellant told PW2 to leave his mother and instead arrest A,2 (Kabiito Swaibu), A3 (SsesimbaZubairil, A5 (Kabenge Ronald) and one Ggayi Isma who are the people who killed Moses Ssamula.

- 3] That in addition, the appellant informed PW2 that he had left A5 (Kabenge) at one Lutaya's home after they came from a native doctor's place. He in addition apologized to PW2 saying he had only intended to steal from the deceased, but not to kill him. That the appellant promised to voluntarily surrender to the police. That soon after leaving the police, PW2 sighted, A,3 (Ssesimba Zubairi) and pursued him as he tried to run away. He arrested him and took him to the police. On information that A2 (Kabiito Swaibu) was hiding behind his house and that A,4 (the appellant) was trying to call him but that he (A2) was not responding to his calls, PW2 went and arrested him as well. A,4 (the appellant) was arrested in Kampala a month after the murder. 15 20 25 - 4] Meanwhile, A5 went into hiding inKazo Kampala from where he was arrested two months after the murder. PW2 noticed that A5 had an injury on his finger, and he thought that he could have been bitten by the deceased during the struggle, because he had

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⁵ seen a piece of meat between the teeth of the deceased's body. He (A5) also asked PW2 to forgive him and explained that he sold to the deceased his mother's cow but that the deceased had pardoned him. Also, that it was his colleagues who told him to way lay the deceased and steal money lrom him. Kabenge's brother led them to Levicata Nazziwa (PW4), the native doctor whom A4 (the appellant) and A5 visited after the murder. l,evicata Nazziwa (PW4), AS's cousin, testified that A4 and A5 told her that they had killed someone who operated a video hall in Mbirizi, and asked her to bewitch the case.

- 5] Following his arrest, the appellant was charged and indicted with murder and aggravated robbery. Al, A2 and A3 were acquitted. A.4 and A5 were convicted on both counts and sentenced to 30 years' imprisonment on each count to run concurrently. - 6] The appellant being aggrieved with the decision of the High Court lodged an appeal to this court on two grounds that: - i. The learned trial Judge erred in law and fact when she convicted the appellant on the basis of inadmissible and uncorroborated charge and caution statement, and hence reached an erroneous decision which resulted into ^a miscarriage of justice. - ii. The learned trial Judge erred in law and fact when he sentenced the appellant to 30 years'

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# ⁵ imprisonment which sentence is illegal, harsh and excessive in the circumstances of the case.

### Representation

7] At the hearing of the appeal, the appellant was represented by Mr. Sam Sse\$ewa on state brief, while the respondent was represented by Mr. Sam Oola, a Senior Assistant DPP in the Office of the Director of Public Prosecutions. Counsel for the parties applied and were allowed to adopt their written submissions, which this court has considered in deciding the appeal.

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### Ground one

### Appellant's submissions

- 8l By way of introduction, Mr. Sselqrewa cited Rule 30 (1) (a) of the Jttd.icature (Court of Appeal Rutes/ Directions and the Supreme Court decision of Bogere and Another versus Uganda, Criminal Appeal No.1 of 1998, to draw our attention to our powers on appeal. His main bone of contention in the first ground is that the charge and caution statement was extracted from the appellant in a manner contrary to the provisions of Section 24 of the Evidence Act, which renders irrelevant any confessions obtained by use of violence, force, threats, and inducements. 20 25 - 9l Mr. Sselgrewa in particular referred us to the appellant's testimony during the trial within a trial. That when he was taken to record a charge and caution statement, PW6 D/AIP Agaba Robert was not alone in the office. That there was in addition a guard called Kizito and Afande Tonny both who were in uniform, as well as and pW2

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- l) Sula Ntanda. That Kizito was armed with an AK 47 and there was a pistol on the table in front of Agaba. That PW5 Alibu Vigilus joined the group and ordered Kizito to cock the gun and face it towards the appellant, while telling him to admit the offence, or be tortured to death in a mysterious way. In addition, that Afande Tonny used batoons, to hit the appellant while telling him to sign a document placed before Afande Agaba, and that after signing, he was detained by Alibu. Counsel added that the admittance by PWl Alibu Vigilus, that SPC Kizito was at Lwengo Police Station at that time the appellant made the statement, rendered credence to the appellant's testimony that Kizito was present and tortured him. - 101 Mr. Ssekyewa also faulted the trial Judge for coming to a holding that the appellant was not tortured given that he did not admit the charges and he is still alive. Counsel contended that the decision shows that the trial Judge failed to take into account the fact that it is rare to have direct evidence of torture because of the nature of the crime, and that torture cases are carried out in secret while the victim is in detention. In that regard, counsel cited the case of Paul Wanyoto Mugoya versus Sgt Oumo Joshua and The Attorney General, Civil Appeal No. 91 of 2O2L. - 11] Counset went on to contend that the purported charge and caution statement was recorded in English and not Lunyoro or Luganda language without a certificate of translation by D/AIP Agaba Robert, to conhrm that the contents of the same were , translated to the appellant in those languages. In his view, the

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- purported charge and caution statement lell short of the bar that has been set by this Court regarding admission of charge and caution statements in the case of Lomania Darlington Paul & 3 Others versus Uganda, Criminal Appeal No. 259 of 2011. - ¹²¹In conclusion, counsel submitted that had the trial Judge wholesomely considered the evidence on record, she would have disregarded the charge and caution statement. 10

### Respondents submissions

- 13] In response, Mr. Sam Oola opposed the appeal and supported the conviction and sentence. He in particular submitted that the appellant's evidence was controverted by PWS and PW6 during the trial within a trial. That both witnesses testified that the appellant who was in a normal physical state, was left in the ofhce with PW6 with no other person present and was never tortured or threatened by.r,y person. Mr. Oola added that although PWs admitted that Kizito was a SPC at Lwengo, he denied ordering him to cock his gun and hold it over the appellant. He also maintained that Kizito was not present when PWS took the appellant to PW6. 20 15 - 14] Mr. Oola went on to submit that PWS's evidence was corroborated by the evidence of PW6 and that, the allegations of torture or threats were never put to PW6 in cross-examination during the trial within a trial, a fact that the Judge brought out in her judgment. He contended then that the allegations of torture or threats were therefore disproved and the charge and caution statement by the appellant, was voluntarily made.

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- 15] With reference to the language that was used to record the charge $\overline{5}$ and caution statement, Mr. Oola submitted that it was the evidence of PW6 that the appellant chose to use Luganda and he (PW6), was also comfortable in Luganda. Further, that it was PW6's testimony that after recording the statement, he read it to the appellant and interpreted it to him in the language he 10 understood. That the appellant accepted what he had written and signed the statement. In his view, the failure by PW6 to record the appellant's charge and caution statement in Luganda was an irregularity that was not fatal, and did not vitiate or invalidate the statement recorded in English. 15 - 16 On the issue of corroborating the charge and caution statement, counsel submitted that there was corroboration as was found by the trial Judge. Counsel referred to the evidence of PW2 who talked to the appellant on phone and he admitted having participated in the commission of the offences, and further revealed the persons who had killed the deceased. Secondly that on $03/02/2014$ , the appellant and A5 went to PW4's shrine and A5 revealed that they had killed a person who had a video hall at Mbirizi. The deceased had been operating a video hall at Mbirizi. Further that, the appellant and A5 had gone on a motorcycle that they had borrowed from PW3 in the morning of $02/02/2014$ , a few hours after the deceased was killed and robbed. They needed herbs or charms to forestall their prosecution. That the third piece of corroborative evidence was the post-mortem report (exhibit $P2(a)$ ). Counsel argued that in the charge and caution statement,

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- ⁵ the appellant stated that the deceased was strangled by A5, and it was found in the post-mortem report that the cause of death of the deceased, was respiratory failure due to strangulation. - 17] That the fourth piece of corroborative evidence was the disappearance of the appellant from the area immediately after the incident, for he was arrested more than a month after the commission of the offence. Counsel submitted that this was conduct which was inconsistent with his innocence, and provided further corroboration of the confession. - 181 Lastly, counsel submitted that the trial Judge correctly found that there was evidence of common intention as the appellant admitted that he was at the scene for the purpose of stealing the deceased's money. Counsel further submitted that the appellant admitted that he shared the stolen money (shs. 200,000/=) with his colleagues, and in addition stated that the deceased was strangled by A5. - 19] In conclusion, counsel submitted that ground one of the appeal has no merit and should be dismissed.

## Analysis and decision of court

20] The first issue for this courts determination is whether the trial Judge erred in law and fact when she convicted the appellant on the basis of an inadmissible and uncorroborated charge and caution statement, and hence reached an erroneous decision which resulted into a miscarriage of justice. We have in that

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regard, carefully studied the court record, considered the submissions for either counsel, and the law and authorities cited therein. We are mindful that this is a first appeal to this court, which is governed by the provisions of **Rule 30(1)** (a) of the Rules of this Court. It provides as follows;

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- (1) On any appeal from the decision of the High Court acting in *the exercise of its original jurisdiction, the court maya. Reappraise the evidence and draw inferences of fact;* - 21] We are accordingly required to carefully and critically review the 15 record of the High Court and re-appraise the evidence in order to make inferences of fact, but without disregarding the decision of the High Court. See Kifamunte Henry versus Uganda, SCCA No. 10 of 1997. Alive to the above-stated duty, we shall proceed to resolve the grounds of appeal as below. 20 - 22] The law permits the police to procure confessions from suspects during any investigations of crime. They must do so in accordance with the law. Likewise, owing to the doctrine of presumption of innocence in the Constitution, where an accused person has denied the offence, the trial judge should exercise extra caution before admitting in evidence, a confession allegedly recorded by such person prior to the trial. See: Oryem Francis and Another versus Uganda, CACA No. 231 od 2021. It is provided in Section 24 of the evidence Act Cap 6 that:

"a confession made by an accused person is irrelevant if the making of the confession appears to the court,

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hauing regard to the state of mind of the accLtsed person and to all the circumstances, to haue been caused bg ang uiolence, force, threat, inducement or promise calculated in tlrc opinion of the court to cause an untnte confession to be made."

- 23] According to the Halsbury's Laws of Englandl, in any proceeding, a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings, and is not excluded by the court. Where it is represented to the court that the confession was, or may have been obtained by oppression of the person who made it, or in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him or her in consequence thereof, the court may not allow the confession to be given in evidence against him. Except in so flar as the prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it may be true, was not so obtained. - 241 The case against the appellant consisted of his confession charge and caution statement which was recorded on 7th July, 20 14. The said confession was retracted at the trial as the appellant contended that it was procured under the influence of threats and torture, and was not explained to him in a language he understands. The burden of prove that a retracted or repudiated 25 30

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- ⁵ confession statement is admissible, is always on the prosecution. See Amos Binuge and Another versus Uganda, SSCA No, 231L9A9. Thus, in compliance with the law, the Court conducted a trial within a trial to ascertain its voluntariness. - 251 During the trial within a trial, PW1, Sgt Alibu Vigilus testified that he requested AIP Agaba to record the charge and caution statement. That, those instructions were given during daytime when D/AIP Agaba was alone in his office. That he left the appellant in that office and went away. PWl went on to testify that Agaba was in civilian clothes, not armed and that the appellant was physically normal, in a good mood, and had no injuries on him, as he did not beat him. In cross examination, PW1 conceded that SPC Kizito was always on duty at the same station. He however, testihed that it is not true that Kizito was with him and pointed a gun at the appellant, and that he did not order Kizito to cock his gun over Sseruma 15 20 10 - 261 Further,PW2, D/AIP Agaba Robert in the same trial, testified that he met the appellant the day he was brought to him to record a charge and caution statement. That on that same day, he was in civilian attire, not armed and that he recorded the statement while him and the appellant were alone in the room. He further testified that the appellant raised no complaint about anything to him and he did not threaten him. That after recording the statement, Alibu who was in un armed in civilian attire, came and led the appeilant away w

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- 271 ln his defence, DWl the appellant testihed that he was taken to make a charge and caution statement to Agaba. That in Agaba's office, he found there Agaba, one guard Kizito, Afande Tonny and PW2 (Sula Ntanda). He testified that Kizito and Tonny were in uniform, Kizito was armed with an AK 47 and a pistol was placed on the table in front of Agaba. That Alibu ordered Kizito to cock the gun and face it towards the appeilant. He further testified that Alibu told him that he had to admit the offence or he could be tortured to death. The appellant further testified that he signed some papers after which Sula Ntanda stated that they should go to the next plan. That at that point, Afande Tonny went outside and returned with a set of handcuffs that he put on the appellant together with shackles. That in addition, Afande Tonny returned with two batons. He gave one to Kizito and held the other. That both men started beating the appellant telling him to sign the document which was before Agaba, and that after signing, he was detained by Alibu. - 281 In her ruling, the trial Judge rejected the appellant's defence. She reasoned that the primary objection to the statement, which was the use of torture and threats, was never put to Agaba in cross examination. She also considered the claim of threats on the appellant as baseless since he was alive and was present to stand trial. She accordingly admitted the charge and caution statement into evidence.

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- 29] We have carefully perused the record of the court and deduced $\overline{5}$ the following. The appellant's evidence of PW1 in the trial within the trial is that he was taken to Agaba's office. However, his testimony that there were four other men in the same room, some armed, cannot be verified. Two of those men Agaba and Alibu denied that allegation and their testimonies corroborated each 10 other on how the appellant was handled before and during the time he recorded his statement. They stated that the appellant was physically normal at the time he was taken to Agaba to record his charge and caution statement, and that Agaba was not armed and did not assault him. Alibu testified further that in Agaba's $15$ office, there were no other people save for Agaba and the appellant. That evidence was confirmed by Agaba in the trial within a trial whose testimony confirmed that when the appellant was brought to his office to make a charge a caution statement, he was alone, unarmed, and wearing civilian clothes. That he 20 remained in the office with the appellant without any other person for the entire time that the statement was recorded. PW2 further testified that he did not see any injuries on the appellant and that the appellant did not complain of anything to him. That fact was confirmed on the appellant's P24 made out one day after his 25 arrest, that he had no injuries and was in a stable mental state. - 30] The appellant's evidence on threats and torture was less consistent. He testified that he signed some papers after Sula Ntanda said they should go to the next plan. He however changed to state that Afande Tony left the room and then returned and

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hand cuffed him and started assaulting him while forcing him to sign certain documents which were before Agaba. That after signing, he was detained by Alibu. During cross examination, the appellant testified that alter he was tortured, Alibu brought purple medicine that he administered on the wounds and that he was not taken for medical care. Since his P24 was made out soon after his arrest, those wounds should have been visible and recorded by the examining ofhcer. They were not

- 31] It is our considered view that the appellant's evidence had contradictions that slighted the truth of his testimony. His evidence alluded to signing of the charge and caution statement twice. First, after Sula Ntanda said they go to the next plan, and secondly, after he was hand cuffed and beaten. This clouds the chronologr of events of his account. We note further that he made no attempt to raise his complaint of torture when his case was called up for mention. It is also profound as the Judge noted that, the defence put no questions of torture or threats to either Agaba or Alibu during cross examination. It would be reasonable to conclude that those allegations were only raised as an afterthought. 20 15 - 321 We therefore agree with the trial Judge that the charge and caution statement was obtained voluntarily with no threats and that no torture was inflicted upon the appellant to force him to sign. w

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- ⁵ 331 Secondly, counsel for the appellant contended that the purported charge and caution statement was not recorded in Runyoro or Luganda which the alleged makers were using. In the trial within a trial, PW2 Agaba admitted that the appellant made his statement in Luganda. That he was equally using the Luganda language but recording the statement in English. That it did not occur to him to record it in Luganda since both men were understanding each other, for as the appellant narrated his story in Luganda, he took the trouble to ask him any fact or issue he had not understood. 10 - 34] Both the appellant and Agaba were in agreement that the appellant made the impugned confession in the Luganda language, but Agaba recorded it in English. We take judicial notice of the common practice of the police of procuring confessions in the language that a suspect understands then record it in English, the formal language allowed. Having done so, it is always good practice that the officer recording the statement should ensure that the suspect making the confession understands its literal meaning and import. They can only do so by reading the confession back to the maker in the language they understand and inquiring of them whether they have understood before allowing them to sign it. It is also good practice that the police officer indicates at the foot of the confession or on any other part of it, that they fully complied with that procedure in the sequence we have given. That said, the omission to follow that

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- good practice would not prevent a Court to admit the concerned confession. - [35] In Ssengoja Paul versus Uganda, SCCA No. 42 of 2000, the Supreme Court held as follows: - "On the issue concerning the language in which the 10 confession statement was recorded, the Court of Appeal *found that the fact that the appellant made the statement in vernacular and it was recorded by a Police Officer in English through an interpreter, was not fatal to the prosecution case.* The Court of Appeal applied *the decisions of this* 15 court in Festo Androa versus Uganda(supra) and in **Namulodi Hassadi versus Uganda** (supra). It held that as long as the charge and caution statement was read back to the appellant through a translator and he signed it, which was done in the instant case, no miscarriage of justice was occasioned to the appellant." - 36] In the instant case, the appellant stated that he conveyed his statement in the Luganda language. D/AIP Agaba Robert himself professed to speak and understand that language well. It was thus not strange for the two men to communicate in Luganda. Indeed, there was no need for an interpreter. It follows therefore that recording the statement only in English yet Luganda was used in communicating with the appellant, would not invalidate the statement. Further, there is proof that the appellant understood the import of the confession before owning it. On the last page and at the foot of the statement it is recorded that "It is true and correct. Read to me to and I understood here I do sign" (sic). That statement was immediately followed by his signature

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- ⁵ and that of Agaba as the recording ofhcer. It is reasonable to deduce from that brief statement that the charge and caution statement was read back to the appellant, and that he found it to be true and correct before signing it. Under such circumstances he could not disown it. The trial Judge was correct to admit it into evidence and then act on it as one of the pieces of evidence to convict the appellant. - ³⁷¹We therefore find that there is no merit in the appellant's contention that the confession was recorded in a language that he could neither speak, nor comprehend. - 38] The appellant in addition contested the charge and caution statement for lacking corroboration. Respondent's counsel countered that submission by stating that the evidence of PW2 Ntanda Sula and PW4 Levikata Nazziwa was sufhcient corroboration in more ways than one. In particular, that: - The appellant confessed to PW2 that he participated in robbing, and the murder of the deceased 1 - 25 ll. The appellant was present when A5 a co-conspirator confessed to PW4 a native doctor, that the appellant and A5 had murdered the deceased and required cleansing - lll. It was recorded in the post mortem report that the deceased had met his death by strangulation, the same cause mentioned by the appellant in his charge and confession statement w\_ &

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⁵ lv. Soon after the crime, the appellant disappeared from the village and was arrested one month later on Salama Road, in Kampala.

We shall accordingly re-appraise that evidence.

- 391 It was the evidence of PW2 (Ntanda Sula) that when he took the appellant's mother to police to assist with investigations, the appellant called her on her phone, and PW2 managed to retrieve the same phone, and that way, talked to A4 directly. That during that conversation, the appellant requested PW2 to leave his mother alone and instead arrest A3, A2 and A5 Kabenge Ronald. The appellant informed PW2 that at that point in time. Kabenge was leaving the home of a native doctor where the appellant had left him. According to the appellant, it was those three people who had murdered the deceased. That the appellant further informed PW2 that he was prepared to surrender and begged his pardon because his intention to participate in the offence was only to steal from the deceased, but not to kill him. - ²⁵ 401 Furthermore, PW4 Levikata Nazziwa, who introduced herself as a "a witch" or native doctor, testified that on a Sunday, the 2"d day of Februar5r 2014, her nephew, A5 Kabenge rung her to confirm whether she was at her home. That the next morning at 7:30 am, Kabenge and the appellant came seeking for her assistance. PW4 testified that the appellant and A5 entered the shrine and she started working on them. That as she was administering to them, 30

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- ⁵ the demon instructed her not to give them herbs because they had killed a person. That when she inquired of them whether they had killed someone, A5 admitted that they had done so, and further explained that their victim owned a video hall in Mbirizi. PW4 then declined to give them any herbs. - 10

- 41] In our view, the independent evidence of PW2 and PW4 corroborated the retreated statement. Both were accot-lnts of statements made to them directly by the appellant and A5 Kabenge, his co-accused. PW2's account is that the appellant confessed to him twice that he participated in the events leading to the deceased's murder, though his intention was only to steal. On the other hand, PW4 attended to the appellant in her shrine and explained that the only reason that the appellant and A5 came to see her, was to seek supernatural intervention to conceal the crime. The appellant later admitted to PW2 that he did go to a shrine with A5. - 42] Further, PW2 testified, and it was not contested that soon after the deceased's body was discovered, the appellant run away from the village to Kampala where he was arrested after one month. PW2 testified that the arrest was made after a search and a tip off that the appellant was resident at a Mosque on Salama Road. We agree with the observations of the Judge that that was not conduct of an innocent person. There is a myriad of authority that the conduct of a suspect immediately after commission of a crime . is important evidence to implicate or exonerate them. It has been

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⁵ held that the disappcarance of suspect soon after the incident may provide corroboration to other evidence that they have committed the offence. This is because the sudden disappearance from the area of the crime scene, is incompatible with the innocencc ol such a person. See for example Remegious Kiwanuka versus Uganda, SCCA 41 of 1995 followed in Lulu Festo versus Uganda, CACA No. 214 of 2OO9. Also see: Nimungu Charles versus Uganda, CACA No. O6 of 2OL2.

⁴³¹From all the above evidence it is clear that there was other independent evidence other than that of the charge and caution statement, which corroborated the fact that the appellant was one of a gang of men who attacked, robbed and killed the deceased.

441 We therefore hnd no merit in the first ground and it fails.

## Ground two

- 45] In ground two, the appellant contested the sentence of 30 years' imprisonment as being illegal, harsh and excessive in the circumstances of the case. He prayed that this Court invokes its powers under Section 1 1 of the Judicature to set it aside. - 46] The appellant's counsel submitted that when considering an appropriate sentence, this Court should take into account thc fact that the appellant was of the youthful age of 24 years, at the time he committed the offence. He buttressed his submissions by referring to Guideline 4 and 9 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practicef Directions,

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⁵ 2O13 (hereinafter the Sentencing Guidelines in which youthful age is defined, and a provision is made that in imposing ^a custodial sentence, the court, shall consider the age of the offender and his/her remorsefulness. Counsel, in addition referred to Guideline No. 6(c) ol the Sentencing Guidelines in which the consistency principle in sentencing is enunciated. He then prayed that the Court considers following earlier decisions where convicts of similar offences of murder, were given lesser sentences.

471 To illustrate the consistency principle, counsel cited the well followed decision of Suzan Kigula versus Uganda, HCT- OO CR SC-O115 where a female convict who fatally wounded her husband by cutting his throat with a sharp panga, on remission received a sentence of 20 years' imprisonment. He in addition cited Uganda, versus Uwera Nsenga, Criminal Appeal No. 312 of 2013 where an accused who ran over her husband with a car and killed him at their home gate, received a sentenced to 20 years' imprisonment. He also referred lo a 24-year-old convict who had received a sentence of 35 years' imprisonment for murder, had the sentenced substituted with one of 22 years' imprisonment. See Rwabugande Moses versus Uganda, SCCA No. of 2OL4. 15 20 25

481 Mr. Ssekyewa then contended that the appellant in this case was a hrst time youthful offender with no previous criminal record. One who had potential of being useful to his family and the

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nation. In his view, a harsh sentence would only deprive his family and the nation at large of a useful citizen, who had learnt his lesson while in prison. He invited the Court to set aside the sentence of 30 years' imprisonment and in its place, impose a sentence that would enable the appellant to reform and be reintegrated into society.

Respondents submissions

- 491 In response, Mr. Oola disagreed and supported the sentence as appropriate in the circumstances of this case. Citing authority, he submitted that an appropriate sentence is a matter for the discretion of the Court, which discretion is exercised in line with the facts presenting lor each case. He added that an appellate court can only interfere with a sentence under limited circumstances. In that regard, he referred us to Nabongho Ibrahim versus Uganda, CACA No. O181 of 2014, where the court referred to Kyalimpa Edward versus Uganda, CACA No. 1O of 1995, which quoted with approval R versus De Haviland (1983) 5 Cr. App. R(s) 1o9. 15 20 - 50] Counsel contended that, the trial Judge considered both the aggravated and mitigating lactors. That she specifically deducted the period the appellant had spent on remand from the sentence she deemed appropriate, before arriving at the final sentence of 30 years' imprisonment for each of the two counts. Counsel went on to contend that the commission of the offences herein was premediated, meticulously planned and executed with precision and that in addition, the appellant and his colleagues killed the 25 30

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- ⁵ deceased in a most brutal and gruesome manner, by strangling him. - 51] Counsel submitted further that much as this court has been invited to consider that the appellant was at the time he committed the offence a young person aged 28 years, the deceased was equally a young person ol the same age when his life was abruptly and brutaily terminated.

521 Counsel went on to submit that the interest ofjustice will be best served if the sentences against the appellant are maintained because they are appropriate in the circumstances. He demonstrated the appropriateness of the sentences by providing earlier decisions with respect to similar offences as the case here. He referred hrstly to the Nabongho lbrahim's case (supra), in which an appellant who was convicted of murder and aggravated robbery, received a sentence of lile imprisonment on each count, to run concurrently. On appeal to this Court, the appellant was re-sentenced to 34 years, 8 months and 25 days' imprisonment on each of the counts. He also referred to the case of Wetsenge Robert and Another vs. Uganda, CACA No. 161 of 2O19, in which the appellants had their sentences of 40 years and 4 months' imprisonment, reduced to 30 years and 4 months' imprisonment, and 15 years and 4 months' imprisonment (respectively), for the double offences of murder and aggravated robbery. 15 20 ³⁰ D 25

&, ²⁴ 4-t{ - ⁵ ⁵³¹Respondent's counsel concluded then that the concurrent sentences of 30 years' imprisonment for murder and aggravated robbery cannot be said to be harsh or excessive having regard to all the circumstances of the case. He moved the court to uphold the sentences and instead dismiss the appeal. - 10

## Analysis and decision of court

- 54] It is the appellant's case that the learned trial Judge sentenced him to an illegal, harsh and excessive sentence of 30 years' imprisonment. Mr. Ssekyewa contended that the trial Judge did not consider the fact that the appellant was a first time offender of youthful age, at the time he committed the offence. He regarded both as important mitigating flactors that should have led to a more lenient sentence. Conversely, Mr. Sam Oala considered the sentence correct and appropriate, one arrived at, after both the aggravating and mitigating factors were considered. In addition, that the victim who lost his life abruptly, was similarly a young man who was brutally murdered by the appellant. - 55] The law as to the circumstances under which this Court, as a first appellate court, may interlere with the sentence of a trial court, is settled. Before this Court can interfere with a sentence, any one or more of the factors below must exist: - i. The sentence is illegal. - ii. The sentence is manifestly harsh or excessive.

- iii. There has been failure to exercise discretion. - iv. There was failure to take into account a material factor.


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v. An error in principle was made.

See: Rwabugande Moses Vs Uganda, SCCA No. 25 of 2014; Kyalimpa Edward Vs Uganda, SCCA No. 10 of 1995; Kamya Johnson Wavamuno Vs Uganda, SCCA No. 16 of 2000 and Kiwalabye Bernard Vs Uganda, SCCA No. 143 of 2001.

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56] When sentencing the appellant and his co accused, the trial Judge stated as follows:

"I have heard and considered all that was said in aggravation and mitigation of sentence. In this case I considered the fact that the accused persons acted as a going, they appear to me to be very dangerous to society. *That they way laid the victim and strangled him shows* a complete lack of humanity in them. In this regard each accused does not deserve lenience. The victim was a young man (28yrs) and his life was terminated by reckless behavior of the convicts. I would have sentenced each accused to 35 years on each count but I *have considered the 5 years' remand term and sentence* each to 30 years' imprisonment on each count. Right of *appeal explained.* (sic) (Emphasis applied).

57] As an introduction to her order, the Judge did acknowledge that she had heard and considered what was stated by counsel in aggravation and mitigation of the sentence. However, in the rest of her order, she appeared to have ignored much of what was stated as mitigating factors for the appellant. This was an error in

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principle because both the Sentencing Guidelines and decided cases have repeatedly pronounced that it important to give both facts equal attention, and by doing so, achieve a well-balanced and fair sentence. It was for example held in **Magala Ramathan** versus Uganda SCCA No. 01 of 2014 that:

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".... our justice system requires that an accused person be given an opportunity to say something in mitigation *of the sentence. It follows that in arriving at a sentence,* a judicial officer is obliged to balance the mitigating factors against the aggravating factors and after identifying the mitigating and aggravating factors, a Judge may come to the conclusion that in the circumstances of the particular case, the aggravating *factors outweigh what would have been the mitigating factors.*

58 The question posed then would be whether the omissions of the Judge in her sentencing order resulted into a miscarriage of justice, and would as such require our intervention. We would answer in the negative and the following are our reasons.

In this case, very little was presented in mitigation. It was stated in part, that the appellant was a first-time offender who sought lenience. Although those factors were not repeated in the sentencing order, the Judge did mention that the manner in which the appellant and his conspirators planned and then robbed and killed their victim, showed lack of humanity. She therefore refrained to extend any leniency. She in addition considered the other factors raised in mitigation because, she imposed two

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- ⁵ sentences to be served concurrently, after deducting the period the appellant had spent on remand. - 10 591 It was in addition argued that the appellant's age was never put into consideration to his detriment. We do agree and indeed there is ample authority both in the Guidelines2 and from Court precedent, that considerations of age and maturity are usually relevant to the culpability of an offender, and the seriousness of an offence. See for example R v Peters [2OO5] EUICA Crim. 6O5, followed by this Court in Kugonza Kenneth versus Uganda, CACA No. 1O9 of 2OLL and Mujuni Frank versus Uganda, CACA No. 2O3 of 2OL6. However, in this case, the appellant's age was never raised in mitigation and even if considered now, would not in our view, seriously tilt the otherwise damning aggravating lactors that were placed before the trial Judge. For those reasons, we reject that submission as well. 15 20 - 60l It was also put forward for the appellant that the sentence of 30 years' imprisonment was manifestly harsh in the circumstances. One useful way of confirming whether the sentence was manifestly harsh or excessive is by applyrng the consistency principle enunciated in the decision of Aharikundira Yustina versus Uganda, SCCA No. 27 of 2O15. There is also guidance of the Sentencing Guidelines Paragraph 19 of the Sentencing Guidelines directs us to the sentencing range specified in Part I of the Third schedule. In that schedule, the sentencing range for murder and

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⁵ aggravated robbery, after considering both the aggravating and mitigating factors, is 30 years to death as the maximum sentence. Therefore, a sentence of 30 years' imprisonment would be within the range of what is provided. Previous decisions on the same offence will also be useful.

- 61] In Bakubye Muzamiru and Another versus Uganda, SCCA No. 56 of 2015, the appellants were convicted of murder and aggravated robbery, and sentenced to 4O years on count 1 and 30 years on count 2 to run consecutively. On appeal, this Court declined to agree that the sentences were harsh and excessive, and confirmed them. The Supreme court likewise declined to interfere with the sentences. In Mutebi Ronald and Another versus Uganda, CACA No. 259 of2Ol9 and No. 18 of2O2O, this Court confirmed a sentence of 30 years' imprisonment respectively, on the double offences of murder and aggravated robbery. Yet in Guloba Rogers versus Uganda, CACA No. 57 of 2OL3, this Court intervened to reduce a sentences of 47 years' imprisonment for aggravated robbery and murder to 33 years' imprisonment, on each count. - 621 The circumstances of this case are that, the appellant and his coaccused, robbed Ssamula Moses of his money and other property. During that criminal act, they strangled him to death and left his body on the roadside. The deceased, a relatively young man, suffered a painful death and lost his property. The range of sentences for murder and aggravated robbery where convicts have been spared the maximum penalty of death is demonstrated in the

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- ⁵ precedents provided by respondent's counsel, and those sourced by the Court. The above precedents demonstrate a sentencing range between 3O to 40 years' imprisonment, after deducting periods spent on remand. - 63] In the circumstances, we find no basis for this Court to interfere with the sentence of 30 years' imprisonment imposed by the trial Judge on each count for which the appellant was convicted. Contrary to what was submitted for the appellant, we hnd that it was a sentence that was neither harsh nor manifestly excessive in the circumstances of the case. We have also found that the failure by the trial Judge to meticulously consider the mitigating factors did not cause any injustice to the appellant, considering the fact that the Judge meted out a sentence that is in line with the consistency principle, as discussed above. 10 15 - 20

⁶⁴¹In conclusion, we hnd no merit in this appeal and it fails. We accordingly uphold the sentence of 30 years' imprisonment on each count as imposed by the trial Judge.

²⁵ Dated at Masaka this c..\_ of 2023.

³⁰ RICHARD BUTEERA, DCJ JUSTICE OF APPEAL

5 CATHERINE JUSTICE OF APPEAL 10 EVA OF APPEAL