Ayimani and Another v Uganda (Criminal Appeal No. 401 of 2016) [2023] UGCA 111 (30 March 2023)


THE NEPUBLIC OF UOAI|DA

# THE COURT OF APPEAL OF UGANDA AT ARUA

## CORAM: CHEBORION; MUGENYI ANO GASHIRABAKE, JJA

## CRIMINAL APPEAL NO. 401 & 411 OF 2016

APPELLANTS 1. AYIMANI SWAID DODO 2. DRATELEJAMAL

### VERSUS

UGANDA RESPONDENT

(Appeal from the High Court of Uganda at Arua (Keitirima, J) in Criminal Case No. 55 of 2014)

### JUDGMENT OF THE COURT

### A. lntroduction

- '1. Messrs. Swaid Dodo Ayimani and Jamal Dratele ('the Appellants') were indicted for the murder of Ms. Pauline Asitolo ('the Deceased') in Gborogborocu village, Yumbe District. lt was the Prosecution's case that the Appellants had on l0h of July 20't3 forcefully gained entrance into a homestead where the Deceased was, repeatedly beat her up with a pesfle and dragged her towards River Nyawa where her body was recovered the next morning. - 2. The Appellants were convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 and each sentenced to forty-five (45) years' imprisonment. They have since lodged the present Appeal in this Court, the sole ground of which is that the 4S-year sentence imposed by the trial judge was unduly harsh and manifestly excessive given the circumstances of the case. - 3. At the hearing, Mr. Samuel Ondoma of M/s Alaka & Co. Advocates appeared for the Appellants while the Respondent was represented by Mr. Patrick Omia, the Resident Chief State Attomey of Arua.

#### B. Parties' Leqal Arguments

- 4. lt is the Appellants' contention that the 45-year sentence was harsh and excessive, and the trial judge did not deduct the period of three years, four months and eleven days that they had spent on remand in arriving at that sentence. Learned Counsel argued that the hial judge ought to have considered as mitigating factors the fact of the Appellants being first time offenders, their relatively young age, being maried family men and their families' bread winners. ln his view, at the age of 38 and 25 years respectively the Appellants were capable of reform and could become useful citizens in future. He thus proposed a reduction of their sentence to fifteen (15) years. - 5. Learned State Counsel, on the other hand, supports the sentence meted out by the trial judg e. He relied on the decisions in Kvalimoa Edward vs Uqanda. Criminal Appeal No. 10 of 1995 and Kamya Johnson Wavamuno vs Uqanda, Criminal Appeal No. 't6 of 2000 (both, Supreme Court), the sum effect of which ')

( rinrinal ,{ppeal No..l0l &.lll ol'1016

h,( @,

was that the Court of Appeal would only interfere with a sentence imposed by a trial court in very limited circumstances. ln his view, the judicial discretion to so interfere with a sentence would only ensue where the sentence is illegal, manifestly excessive, premised on the improper exercise of discretion, failure to take into account a material consideration or taking into account an immaterial consideration, or where an error in principle was made by the trial court.

- 6. With regard to the period spent on remand, it is argued that the trial court did factor the period spent on remand in its sentence albeit not arithmetically as espoused in Rwabuoande Moses v Uoanda. Criminal Aopeal o. 25 of 2014 (Supreme Court). Learned Counsel opined that the trial court need not have arithmetically deducted the time spent on remand in computation of the Appellants' sentence as the Supreme Court had not yet rendered its decision in EgiEg4!g-@9\_l Uqanda (supra) urging that.iudicial approach. Whereas the said decision was rendered on 3d March 2017, the sentences in issue presently had been handed down in November 2016. - 7. ln terms of the mitigating factors raised by the Appellants, it is the contention that they were considered by the trial court but the aggravating factors far outweighed them. Furthermore, considering that the maximum sentence for murder is the death penalty, learned Counsel cited numerous authorities in support of the view that the gruesome murder of a defenceless woman did warrant the 4s-year imprisonment term. He thus prayed that the sentence be upheld and the Appeal be dismissed. - 8. No submissions in rejoinder were forthcoming from learned Counsel for the Appellants.

#### C. Determination

9. The law on the powers of an appellate court in an appeal from a sentence, such as is the case presently, is stated in Section 132 of the Trial on lndictment Act, Cap. 23. Section 132(1)(b) and (e) provide as follows:

(l) Subiect to this soction -

a

Ltuyt @,

<sup>(&#</sup>x27;rinr inal Appeal No. .10 I & 4 I I ol 20 16

- b. An accussd peEon may, with leays of ths Court of Appeal, appeal to the Court of Appoal against the sentence alone imposed by the High Court... - And the Court of App€al may c - d - ln the casg of an appoal against sentonce only, confirm or vary th6 sentence. e - 10. lt 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 giving allowance for the fact that it has neither seen nor heard the witnesses, come to its own conclusion on that evidence. ln so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. lt is only through such reevaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial Coud.. See Baouma Fred vs. Uoanda. Criminal Apoeal No.7 of 2UN (Supreme Court). - 11.1n Boqere Moses & Another v. Uqanda, Criminal Appeal No. I of <sup>1997</sup> (Supreme Court), it was further observed

A first appellate court must bear in mind that it did not have the opportunity to see and hear the witnesses and should, where available on record, be guided by the impression of the trialjudge on the manner and demeanour of the witnesses.

12. We are constrained to state from the outset that we find nothing illegal perse about the 45-year sentence given that it does fall within the sentencing threshold prescribed for the offence of murder. ln so far as the Third Schedule to the Constitution (Sentencing Guidelines for Coutts of Judicature) (Practice) Directions, 2013 ('lhe Sentencing Guidelines') provides for a sentencing range of between 30 years' imprisonment to death for the offence of murder, a 4S-year sentence cannot be opined to be illegal. This would include a sentence of life imprisonment or imprisonment for life within that sentencing range. Section 4 (2) of the Law Revision (Penalties in Ciminal Matters) Miscellaneous (Amendment) Act, 2019 states as follows in respect of a sentence of life imprisonment:

I

('rirninal Appcal No..l0l & {ll ol'1016

lvl/tt4 Qbil

Notwithstanding subsection (1), a polBon liable to imprisonment for lifo or life imprisonmgnt may b€ sontonca for any shortor term of imprisonment not exceeding fity yoaB.

- 13. lt thus seems to us that where a sentencing court considers either the death penalty or sentence of life imprisonment inappropriate in the circumstances before it, any custodial sentence handed down by it should not exceed fifty (50) years. Accordingly, to the extent that the 4s-year sentence imposed on the Appellants in the Appeal before us presently was in compliance with section 4 of the Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendment) Acl, it was not an illegal sentence- - 14. We now turn to a consideration of whether the sentence is manifestly excessive, as alleged, or premised on the improper exercise of discretion or error by the trial court. The Appellants specifically contest the trial court's handling of the questions of mitigating factors and due consideration of the time spent on remand. Reproduced below are the trial court's observations pursuant to the a//ocurus proceedings.

This was a very gruesome murder canied oul by two able bodied men on a vulnerable woman. . ... they inflicted a lot of pain on the dece ased before they finally drowned her in the rivor. Their actions were beastly to say the leasl and the convicls do not deserya lo stay in a civilised sciety. They were not evon renorseful al all during the lrial.

'1 5. The court further observed:

I have considered the parbd the convicts have srynt on remand, and I will now sentonce A1 to 45 years (forA fwe) years imprisonment. I wi also sentence A2 to 45 Wars (forty five) years imprisonment.

16. lt seems to us that the trial judge did address himself to the aggravating factors of the case before him in arriving at the sentence. Whereas the absence of antecedents on record would suggest that the Appellants were indeed first offenders, this Court cannot ignore the observations of the trial judge that had the benefit of hearing the evidence and observing the Appellants' demeanour firsthand. The Appellants were convicted for an egregious murder that was callously

( riminul Appcal No. +01 & +ll ol'1016

CMfi u"4

executed with violence and a clear disregard for the sanctity of human life. To compound matters, they were not remorseful for their heinous actions.

- 17. The gravity of an offence; the brutality with which it is carried out; the remorsefulness of the offender (or, as in this case, the lack thereofl, and the effect of the sentence on the society are considerations that are duly provided for in the Second Schedule to the Sentencing Guidelines. See c/auses (b), (c), (e) and (l) thereof. ln this case, if such a horrendous murder was the two Appellants' introduction to the wodd of crime then, despite their relatively youthful age, their actions would in our view warrant a sufficiently retributive penalty. - 18. The fact that their actions were premised on the unproven suspicions that the Deceased was a'witch', further necessitates such penalty as would serve as a deterrent to like-minded members of society that are inclined to take the law into their own hands on the basis of mere suspicions. As we consider the appropriateness of the sentence that was meted out in this matter, we are alive to the prevalence of mob justice in certain sectaons of our society and the need for the criminal justice system to curb its incidence. - 19. Had the Appellants apprehended the Deceased in circumstances that could have indeed infened witchcraft on her part, the Court might have been more sympathetic to their spur of the moment response thereto, and possibly considered a lesser sentence. ln this case, however, the Appellants exhibited a premeditated intention to harm the Deceased for an alleged malpractice in terms of witchcraft, which they could have submitted to the relevant cultural and/ or legal authorities. That mers rea would, in our view, inevitably justify a relatively harsher sentence. - 20. Be that as it may, we take the view that a 45-year sentence for such ill-advised young men that were brimming with understandable albeit misdirected considerations to rid their society of the vice of witchcraft would be manifestly excessive. We consider a 30-year sentence, the minimum sentence for the offence of murder as per the Sentencing Guidelines, more appropriate to the circumstances of this case. The Appellants' sentence is accordingly reduced.

('riminal Appeal No.40l &.lll ol'2016

Up'll @,

- 21. The foregoing reduced sentence would be subject to due consideration of the period spent on remand. As quite correctly opined by leamed State Counsel, the trialjudge did factor the time that the Appellants had spent on remand albeit without arithmetically deducting that time from the sentence he ultimately handed down. We cannot fault him for that given that there was no legal requirement then for such an arithmetic approach to be undertaken. - 22. WearealivetotheSupremeCourt,sdecisionin@ (supra) where it was held:

We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spent on remand is ambiguous. ln such circumstanc€s, it cannot be unequivocally ascertained that the court accounted for the remand period in aniving at the final sentence. Article 23 (8) of the Constitution (supra) makes it mandalory and not disoetional that a sentencing judicial officer accounls for the remand period. As such, the remand period cannot be placed on the same scale with other factors developed under common law such as age of the convicl; fact that the convicl is a first-time offender; remorsefulness of lhe convict and others which are discretional mitigating faclors which a court can lump together. Furthermore, unlike it is with the remand period, the effect of the said other factors on the courl's determination of sentence cannot be quantified with precision. We note that our reasoning above is in line nith provisions of Guideline 15 of the Constitution (Sentencing Guidelines for Courts ol Judicature) (Practice) Direclions, 2013 which provides as iollows:

- (1) The court shall take into account any period spent on remand in delermining an appropriate sentence. The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account. (2) - 23. However, the apex court has since reconsidered the position in the Rwabuqande case with regard to sentencing. Thus, in Asuman Abelle vs Uqanda (2018) UGSC 10 it was held

Vvhat is material in that decision is that the period spent in lawful custody prior to the trial and sentencing of a convict must be taken inlo account and according to the case of Rwabugande thal remand period should be credited to a convict when he is sentenced to a term of imprisonment. This Court used the words to deduct and in an

( rinrinal Appcal No. l0l & {ll ol'l0l(r

Cptl @,

arithmetical way as a guide for the sentencing Courts but those metaphors are not derived from the Conslitution. Where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convicl, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different words in their iudgment or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court would not be bulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution.

- 24. As was aptly observed by this court in Geoffrev Nkurunziza vs Uqanda, Criminal Aopeal No. 686 of 2014, the decision in Asuman Abelle vs Uq (supra) recognises the discretion of sentencing courts to either apply the arithmetical approach advanced in Rwabuqande Moses v Uqanda (supra) or the nonarithmetic approach that previously prevailed provided, in either event, that they demonstrably ascertain the exact period the convict has spent in lawful custody. - 25. ln Geoffrey Nkurunziza vs Uqanda (supra), whereas the court found to be acceptable the trial court's reference to the a/most 3 years spent on remand, in computing the appropriate sentence it nonetheless deducted the exact period spent on remand (2 years and 8 months) from the reduced 18-year senlence to hand down a sentence of 15 years and 4 months. ln so doing, it gave effect to its observation on sentencing as advocated under Asuman Abelle vs Uganda (supra) as follows

It is incumbent upon the (sentencing) court to ascertain first the exacl period the convicl has spent in lawful cuslody and then choose whether to apply Rwabugande Moses v Uganda (the arithmetical formula) oI Asuman Abelle v Uganda (the non- arithmetical approach). When thi6 period is not asc€rtained it cannot be possible to conedlv take it into account. (our emphasis)

26. ln the instant case, the trial judge did state that he had considered the period spent on remand without necessarily mentioning the exact period in question. Would that conform with the proposition in the Nkurunziza case that the exact period is to be ascertained first before recourse is made to either the arithmetic or non-arithmetic approach? We would think not.

('rinrinal Appeal No..l0l & {ll ol'1016

itur\* %"

<sup>27</sup>. We arc satisfied, therefore, that the trial court did not demonsfably take into account the period spent on remand as required under Article 23(8) of the Constitution.

#### D. Conclusion

- 28. The Appellants were detained on 1Oth July 2013 and sentenced on 22tu November 2016. The period on remand was 3 years and 4 months. Having reduced the 45 year sentence imposed by the trial court to a 3o-year sentence, we would deduct the period spent by the Appellants on remand. - 29. ln the result, the Appeal against sentence is allowed. The sentences imposed upon each of the Appellants are set aside and substituted with sentences of thirty (30) years each from the date of conviction, ftom which are deducted the three (3) years and four (4) months spent on remand. - 30. The Appellants are to each serve a sentence of twenty-six (26) years and eight (8) months from the date of their conviction by the trial court.

It is so ordered

('riminal Appcal No..l0l &.ll I ol'2016

q6Y/ lr^1

Dated and delivered at Kampala this ... Bow day of ...................................

**Barishaki Cheborion Justice of Appeal**

undingeny".

Monica K. Mugenyi **Justice of Appeal**

**Christopher Gashirabake Justice of Appeal**