Asiimwe v Uganda (Criminal Appeal 250 of 2014) [2018] UGCA 237 (15 November 2018)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL No. 250 OF 2014

## ASIIMWE INNOCENT:::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA::::::::::::::::::::::::::::::::::: 10 (An appeal from the decision of the High Court of Uganda at Kabale delivered by His Lordship Hon Justice J. W Kwesiga in High Court Criminal Session Case No. 018 of 2011 on 7<sup>th</sup> June 2013)

### HON. LADY. JUSTICE ELIZABETH MUSOKE, JA CORAM: 15 HON. MR. JUSTICE BARISHAKI CHEBORION, JA HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA

## JUDGMENT OF THE COURT

#### **Introduction:** 20

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This is an appeal against sentence arising from the decision of Kwesiga, J. whereby the appellant, Asiimwe Innocent was convicted of the offence of murder contrary to Sections 188 and 189 of the Penal Code Act Cap 120 and sentenced to imprisonment for the rest of his natural life.

### **Background to the appeal:**

The facts giving rise to this appeal as accepted by the trial Judge were that the appellant was a biological brother to Atwebembeire Ustina, the deceased and they were both living with their father at their home located at Habusinde village, Hamurwa Town Council within Kabale District.

On 12/5/2011, the deceased prepared lunch for the family but the appellant refused to eat claiming that the deceased intended to poison him. A petty quarrel arose but their father did not take it seriously. Their

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35 father later left for a burial in same village. The deceased and one of her sisters were meant to follow him. The sister left for the burial leaving the deceased behind to prepare her child and also come for the burial.

40 45 The appellant who was armed with a panga found the deceased in her room with her one year old child and hacked her several times with a panga. The deceased raised an alarm and her sister returned with a neighbour and found her lying on the bed. She said that the appellant had cut her. The appellant was seen in the compound carrying a panga and threatening anyone who would dare touch him. He later fled the scene and went to Kampala from where he was arrested four months Iater. The appellant was tried, convicted and sentenced to imprisonment for the rest of his natural life, hence this appeal.

### Appearances:

At the hearing of this appeal, Mr. Tumwebaze Emmanuel learned Counsel appeared for the appellant on State Brief, while Ms. Joanita Tumwikirize, learned State Attorney represented the respondent. The appellant was in Court.

The appellant with leave of Court now appeals against sentence only. The appellant's grounds of appeal are as follows:-

- 7. Thct the learned. trial &tdge erred ln law when he sentenced the appellant to lmprlsonment for his natural lW Ur/lthout consld.erlng the tlme the appellant ho,d spent on renlqnd, renderlng the sentence lllegal. - 2, That the learned trial Judge erred ln law and Jact when he sentenced, the appellant to a harsh and. excesslue sentence o.f imprlsonmgnt Jor the rest o/ his natural ltJe. 1 \\_\_,-

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### The submissions

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Counsel submitted that the learned trial ludge erred in law by sentencing the appellant to imprisonment for his natural life without taking into account the period which the appellant had spent on remand and this rendered the sentence illegal.

Counsel referred Court to Article 23(8) of the Constitution which provides that where a person is convicted and sentenced to a term of imprisonment for an offense any period he or she spends in laMul custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

75 80 Counsel further referred Court to Bukenya Joseph vs. Uganda, Supreme Couft Criminal Appeal No. 17 of 2010, a case of aggravated defilement where the appellant had been sentenced to life imprisonment. On appeal to this Court, the sentence was confirmed. On further appeal to the Supreme Court it was held that taking the period spent on remand before conviction and sentence into account was clearly a mandatory requirement. Further, that taking into account the time spent on remand did not mean that it should be done arithmetically such as subtracting that period from the sentence the court would give but it meant that the period be considered and that consideration must be noted in the judgment. In this case the sentence of life imprisonment was set aside and substituted with a term of 20 years' imprisonment.

In the alternative, Counsel argued that the learned trial Judge erred in law and fact when he sentenced the appellant to a harsh and excessive sentence of imprisonment for his natural life in the circumstances of this case. At the ti f conviction, the appellant was 36 years old which e

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age meant that he was still capable of reforming and being useful in society. Further, that while sentencing him, the learned trial Judge had stated that he would have given the accused person the death sentence but he should be kept alive to regret his action for the rest of his life which denied him a chance to reform. That is why the Judge handed him natural life sentence. The imprisonment for the rest of his natural life was therefore harsh and excessive.

Counsel proposed that a term of 15 years' imprisonment would be appropriate in the circumstances of this case.

In reply, Ms. Joanita Tumwikirize, learned State Attorney, submitted that the sentence imposed by the learned trial Judge was not illegal. She further submitted that the Bukenya case relied upon by the appellanfs Counsel, was distinguishable. It involved aggravated defilement and the 1oo appellant was 70 years old. In her opinion, the Court was moved by the fact that the appellant was very old and the victim in that case was still alive. In this case however, the offence was murder and the appellant took away the life of a girl who was still going to school.

105 Counsel further submitted that the period spent on remand is considered where a term of imprisonment was definite under Article 23(8) of the Constitution, and that in this case, Court intended that the appellant never gets out of prison for the rest of his life. It was therefore of no effect that he deducted time spent on remand.

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Regarding the harshness of the sentence, the learned State Attorney submitted that the deceased was a young sister to the appellant who had refused to study and was jealous because his sister was still going to school. After hp;rr -?ad committed the offense he ran away and was

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tried only after he had been arrested from Kampala. The appellant was not remorseful and made court go through a full trial. In her opinion, the sentence was not harsh or excessive in any way and should be upheld by this Court.

In rejoinder, Counsel for the appellant submitted that the appellant had a right to be tried and either found guilty or not and the fact that the appellant took Court through trial did not necessarily mean that he was not remorseful as submitted by Counsel for the appellant.

Counsel further rejoined that the sentiments expressed by the learned trial Judge are no doubt reasonable but the law must be followed. He reiterated his earlier submissions and prayed for a sentence of 15 years imprisonment.

# t2s Decision of the Court

We have carefully studied the court record and considered the submissions of both counsel. We are alive to the fact that this couft has a duty as a first appellate court under rule 30(1) (a) of the Rules of this Court to re-appraise the evidence and come up with its own conclusions. We are also further guided by the Supreme Court decision in the case of Father Narcensio Begumisa and others vs Eric Tibebaga; SCCA 17l2OO2 in which Court held that:-

> "It ls q. well- settled. prlnclple that on a first d.ppedl, the partles are entltled to obta.ln from the qppelldte court tts own declslon on lssues of Jact as utell as of lau, Although ln a case o;f conJTlctlng eoldence the appellate court has to make due allowance for the Jact that it hqs nelther seen nor heard the

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urltnesses, lt must welgh the confllctlng evld.ence and drdu lts oun lnlerence dnd. concluslons. "

740 145 150 This appeal is against sentence only. The principles that guide an appellate Court in exercising its jurisdiction to review sentences are that a sentence will not be altered on the mere ground that if the appellate Court members had been trying the appellant, they might have passed somewhat a different sentence. The appellate Court will interfere with the sentence of the trial court, if there is an illegality, that is, iF the trial court acted contrary to the law or upon a wrong principle, or overlooked a material factor. The appellate Court will also interfere if the said sentence is harsh and/or manifestly excessive. (See: Jackson Zita vs. Uganda, Supreme Court Criminal Appeal No. 19 of 1995 and also Nalongo Nazziwa Josephine vs. Uganda, Court of Appeat Criminal Appeal No. 088 of 2009).

We note that the trial Judge while sentencing the appellant stated:-

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"The accused. person ls conulcted. oJ the murd.er oJ hls slster. He commltted. the olJence in the most brutal mo,nner. He cut her seuerdl tlmes untll she dled, no doubt ln pain. In my observqtlor. the accused person does flot appedr remorsejul The deceased as a goung slster d.eseraed hls protectlon but he q.cted ln a manner thdt shotued. tho,t he had no respect Jor human ltJe. Thls ts <sup>a</sup> case thdt should. haue d.esented a death sentence. I ut l not gtae the accused person death sentence for he should be kept altue to regret hls actlon for the rest oJ hls ltfe and to tell a story that mag save others Jrom slmilar conduct, The d.ccused, person ls reported to be 36 gears old.; he sholl keep ln prison Jor the rest oJ hls llte. I sentence hlm to lmprlsonment for hls natural l{e.,,

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 From the above, it is clear that the learned trial Judge did not consider the fact that the appellant was a first offender and the period which he had spent in pre-trial detention.

In Magezi Gad vs Uganda, Supreme Court Criminal Appeal No. **17 of 2014,** the issue as to whether period spent on remand should be 170 considered in life imprisonment and death sentence was settled on appeal to the Supreme Court where the Court held as follows:-

> "It was further contended that the learned trial judge in passing sentence of life imprisonment did not take into account the period of five years the appellant had spent on remand contrary to Article 23 (8) of the Constitution.

The above Article provides as follows:-

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment".

The above Article is about legality of sentence. It is mandatory for a trial court sentencing a convicted person to take into account the period spent in custody; see Bashir Ssali vs. Uganda, Criminal Appeal No. 40 of 2003 (SC), where a trial judge fails to comply with Article 23 (8) of the Constitution, the Supreme Court even in its own motion can correct the sentence by considering the period spent in lawful custody before conviction; See Sebide vs. Uganda, Criminal Appeal No. 22 of 2002 (SC).

We are of the considered view that like a sentence for murder, life imprisonment is not amenable to Article 23 (8) of the Constitution. The above Article applies only where sentence is

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for a terrn of lmprlsonment 1.e. a quantlfied period oJ tlme whlch ls deductable. This ts not the case wlth lve or dedth sentences."

We are therefore bound by this decision of the Supreme Court as set out under Article L32 (4) of the Constitution and the doctrine of stare decisis. We accordingly find that Article 23 (8) did not apply and the sentence passed in this case was not illegal. Ground 1 of this appeal therefore fails.

205 Regarding severity of sentence, we have considered both the mitigating and aggravating factors on record in order to determine the proprlety of the sentence meted out, and whether it was manifestly harsh or excessive. We note that the offence committed was grave and, therefore, the sentence imposed must reflect the severity of the appellant's unlawful conduct. It was pleaded in mitigation that the appellant was a first time offender. He was aged 36 years at the time of sentencing, and he was capable of reforming, and prayed for lenienry.

270 21,5 Objective 3(e) of the Constitution (Sentencing Guidelines for Coufts of Judicature) (Practice) Directions, 2013, provides that the guidelines should enhance a mechanism that will promote unlformity, consistency and transparency in sentencing. The ultimate responsibility to determine the appropriate sentence, however, lies with the Court after weighing all relevant factors and then exercising its discretion judiciously.

In Tumwesigye Anthony versus Uganda, Criminal Appeal No. O46 of 2012, this Court set aside a sentence of 32 years imprisonment and substituted it with one of 20 years imprisonment. The appellant in that case had been convicted of murder. The deceased had reported

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him for stealing his (deceased) employer's chicken. The appellant killed him by crushing his head after which he buried the body in a sandpit.

In another case of Atiku Lino versus Uganda, Criminal Appeal No. 041 of 2OO9; before the same court the appellant was convicted of murder and sentenced to life imprisonment. The appellant had attacked and cut to death the deceased in the latter's house, based on his belief that she bewitched his son. This Court, citing the case of Tumwesigye (supra) observed that the appellant ought to be given an opportunity to reform. The sentence of life imprisonment was reduced and substituted with 20 years' imprisonment.

In Mbunya Godfrey vers;us Uganda, Criminal Appeal No. 004 of 2011, the Supreme Court set aside the death sentence and substituted it with a sentence of 25 years imprisonment. The appellant had been convicted of murdering his wife.

235 240 Further, we note that the learned Judge while sentencing the appellant mentioned that the accused person did not appear remorseful in his observation, Clearly this was taken as an aggravating factor against the appellant. It is trite law that where an accused person has pleaded not guilty, and maintained his innocence throughout the trial, he is not expected to be remorseful, and lack of remorse should not be taken as an aggravating factor against him. The learned trial Judge therefore erred when he considered it as an aggravating factor while sentencing.

In the premises, we have come to the conclusion that the sentence of imprisonment for the rest of the appellant's natural life was harsh and excessive in the circumstances,

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After weighing all relevant factors, we find that a sentence of 25 years' imprisonment would meet the ends of justice. Taking into account the period of 1 year and 9 months spent by the appellants on remand, we sentence the appellants to 23 years and 3 months imprisonment. The sentence shall be served from the 7th day of June, 2013, the date of his conviction,

We so order.

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255 260 265 Dated at Mbarara this ls., of I.. Jt\[\*"^Ln. Hon. Lady Justice Elizabeth Musoke ]USTICE OF APPEAL Hon. Mr. Justice Cheborion Barishaki JUSNCE OF APPEAL 2018 tr"

Hon. Mr. Justice Christopher Madrama ]USTICE OF APPEAL

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