[2020] UGHC 65

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT GULU CRIMINAL CASE No. 0355 OF 2019**

**UGANDA ….….……………….….…….….….….….…..…………….… PROSECUTOR**

# **VERSUS**

| 1. | AYELLA POPE PAUL | } | | |----|------------------|---|---------------------------| | 2. | OTEMA DAVID | } | ….…………….….………………… ACCUSED |

# **Before: Hon Justice Stephen Mubiru.**

# **PROCEEDINGS**

9 th July, 2020

15 4.30 am

#### Attendance

Mr. Kilama Stephen, Court Clerk.

Mr. Omia Patrick, Resident State Attorney for the Prosecution.

Mr. Abore Patrick, Counsel for the accused.

20 The accused is present in court

### **A2 Otema David**: I speak Acholi.

**State Attorney**: we have negotiated a plea bargain and accordingly executed a plea agreement which I pray to present to court.

25 **Counsel for the accused**: That is correct.

**Accused**: I signed the agreement willingly at pages 5. My constitutional rights were explained to me and I willingly waived them fully cognisant of the consequences of signing the plea agreement.

**Court**: The agreement is received and hereby forms part of the court record.

30 ………………………………….. Stephen Mubiru Judge 9 th July, 2020.

**Resident State Attorney:** I pray for leave under the provisions of section 50 of *The Trial in* 35 *Indictments Act* to amend by dropping the second count.

**Defence Counsel:** I have no objection.

**Court:** under section 50 of *The Trial in Indictments Act* where at any stage of the trial it is made to appear to the Court that the indictment is defective or otherwise requires amendment, the court 5 may make such an order for the alteration of the indictment (by way of its amendment or by substitution or addition of a new count) as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required alterations cannot be made without injustice. The provision grants very wide powers to a trial court, subject to certain limits, to cure any defect in an indictment by amending it, where such amendment can be made 10 without injustice being done to the accused. Possible prejudice may be averted by recalling the witnesses for the prosecution or any of them for further cross-examination by the accused or his or her advocate (see section 51 (1) (b) of *The Trial in Indictments Act*). If the indictment gives fair notice of the offence to the accused, it can be amended under the broad powers of amendment. Defects in form do not defeat what is valid in substance. An indictment though that is fatally 15 defective would have to be quashed. An indictment that is so badly drawn up as to fail even to give the accused notice of the charge, will it fail the minimum test. I find that the indictment is not fatally defective and the proposed amendments are not likely to prejudice the accused. Leave to amend the indictment is accordingly granted.

………………………………….. 20 Stephen Mubiru Judge 9 th July, 2020.

**Court**: The Indictment is read and explained to the accused in the Acholi language.

25 **Details**; Aggravated Robbery C/s 285 and 286 (2) of *The Penal Code Act*. It is alleged that the accused and others still at large on the 9th day of April, 2019 at Lalano village, in Kitgum District robbed Akello Grace of shs. 250,000/= in cash and immediately before, during or after the said robbery used a deadly weapon on her, to wit, a knife.

**Accused**: I have understood the indictment. It is true.

**Court**: A plea of guilty is entered.

………………………………….. Stephen Mubiru Judge 9 th July, 2020.

**State Attorney**: On the night of 9th April, 2019 at 2.00 am the accused together with another forcefully entered into the house of Akello Grace and flashed a torch at her which enabled her to identify him as a neighbour. The accused demanded for shs. 4,000,000/ or the victim would be killed. She made an 10 alarm before she handed over shs. 250,000/= to the accused who fled the scene. The attackers were pursued and they dropped the knife they had. They were eventually arrested the following day and forwarded to the police. The money was not recovered. His P. F 24 is missing from the police file but in his statement he told the police he was 28 years old.

**Accused**: I have understood the facts. They are correct.

**Court**: The accused is convicted on his own plea of guilty for the offence of Aggravated Robbery C/s 285 and 286 (2) of *The Penal Code Act* in in respect of count 1 and Doing Grievous Harm C/s 219 of *The Penal Code* 20 *Act* in respect of count 2.

> ………………………………….. Stephen Mubiru Judge 9 th July, 2020.

**State Attorney**: the aggravating factors are that the convict used a deadly weapon and attacked the victim in her own home. The offence was motivated by greed.

**Counsel for the accused**: the mitigation is that she readily pleaded guilty, he is relatively youthful at the age of 28 years, he is a bread winner, he is married 30 and has four children and he is a first offender.

**Accused**: I pray for a lenient sentence so that I can raise my children. I am the only one at home. My parents are dead. I was raising orphans of my late sister. I am also HIV positive. There is no one to look after my children. I have learnt a lesson.

#### **SENTENCE AND REASONS FOR THE SENTENCE**

The offence of Aggravated Robbery too punishable by the maximum penalty of death as provided for under section 286 (2) of *The Penal Code Act*. However for this offence, this 5 represents the maximum sentence which is usually reserved for the worst of the worst cases of Aggravated Robbery. This is not one of such cases, and it is for that reason that the death sentence was discounted, giving way to a plea bargain.

Where the death penalty is not imposed, the starting point in the determination of a custodial 10 sentence for offences of Aggravated Robbery under Item 4 of Part I of *The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions,* (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule, the starting point is indicated as 35 years' imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the relevant mitigating factors. I have taken into account the 15 current sentencing practices in relation to cases of this nature as well. For the offence of Aggravated Robbery I have adopted a starting point of a range of 20 – 30 years' imprisonment.

From this, the convict is entitled to a discount for having pleaded guilty. The practice of taking guilty pleas into consideration is a long standing convention which now has a near statutory 20 footing by virtue of regulation 21 (k) of *The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*. As a general principle (rather than a matter of law though) an offender who pleads guilty may expect some credit in the form of a discount in sentence. The requirement in the guidelines for considering a plea of guilty as a mitigating factor is a mere guide and does not confer a statutory right to a discount which, for all intents and 25 purposes, remains a matter for the court's discretion. However, where a judge takes a plea of guilty into account, it is important that he or she says he or she has done so (see *R v. Fearon [1996] 2 Cr. App. R (S) 25 CA*). In this case therefore I have taken into account the fact that the convict readily pleaded guilty as one of the factors mitigating his sentence.

30 The sentencing guidelines leave discretion to the Judge to determine the degree to which a sentence will be discounted by a plea of guilty. As a general, though not inflexible, rule, a

reduction of one third has been held to be an appropriate discount (see: *R v. Buffrey (1993) 14 Cr App R (S) 511*). Similarly in *R v. Buffrey 14 Cr. App. R (S) 511*). The Court of Appeal in England indicated that while there was no absolute rule as to what the discount should be, as general guidance the Court believed that something of the order of one-third would be an 5 appropriate discount. In light of the convict's plea of guilty, and persuaded by the English practice, because the convict before me pleaded guilty, I propose at this point to reduce the sentence by one third from the starting point of a range of 20 – 30 years to a range of 13 – 20 years' imprisonment, before mitigation.

10 Having considered the sentencing guidelines and the current sentencing practice in relation to offences of this nature, the aggravating and mitigating factors outlined above, I hereby accept the submitted plea agreement entered into by the accused, his counsel, and the State Attorney and in accordance thereto, to find the proposed sentence of twelve (12) years' imprisonment as befitting the circumstances of the case and the antecedents of the convict.

In accordance with Article 23 (8) of the Constitution and Regulation 15 (2) of The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I note that the convict was charged on 25th April, 20 2019 and been in custody since then. I hereby take into account and set off a period of one (1) year and three (3) months as the period the convict has already spent on remand. I therefore

sentence the convict to a term of imprisonment of ten (10) years and nine (9) months to be served

- starting today. - 25 Section 286 (4) of the *Penal Code Act*, enjoins the court to make an order of compensation provided that before making such an order, there must be evidence before Court as to the loss suffered by the person to whom the compensation is to be paid. In this case, the convict has admitted having robbed shs. 250,000/= from the victim Akello Grace, which was never recoverd. He is therefore ordered to compensate the victim Akello Grace, in the sum of shs. 250,000/= 30 within a period of three months from the date of this sentence. - 5

Having been convicted and sentenced on her own plea of guilty, the convict is advised that he has a right of appeal against the legality and severity of this sentence, within a period of fourteen days.

| 5 | th<br>Dated at Gulu<br>this 9<br>day of July, 2020. | …………………………………<br>Stephen Mubiru,<br>Judge.<br>th July, 2020.<br>9 | |----|-----------------------------------------------------|-------------------------------------------------------------------| | 10 | | | | 15 | | | | 20 | | | | 25 | | | | 30 | | | | 35 | | | | 40 | | |

**Warrant of Commitment on a U. C. FORM 80 Sentence of Imprisonment Section 298(1) Criminal Procedure Code Act**


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN**

10 **TO: AT GULU**

**The Officer in Charge,**

**Government Prison, Gulu.**

# **WARRANT OF COMMITMENT**

*WHEREAS* on the **9th** day of **July** 2020, **OTEMA DAVID** the **2 nd** 15 Prisoner in Criminal Session Case No.**0335** of the Calendar Year for **2019** was convicted before me: Hon. Justice **MUBIRU STEPHEN, a Judge of the High Court of Uganda,** of the offence of **AGGRAVATED ROBBERY C/s 285 and 286 (2)** of The Penal Code Act and was sentenced to **TEN (10) YEARS AND NINE (9) MONTHS' IMPRISONMENT.**

**THIS IS TO AUTHORISE AND REQUIRE YOU**, the Superintendent to receive the said **OTEMA DAVID** into your custody in the said prison together with this **Warrant** and there carry the afore said sentence into execution according to Law.

**GIVEN** under my Hand and the Seal of the court this **9th** day of **July,** 2020**.**

> ………………………………....… **JUDGE**.

30