Barahuka v Uganda (Criminal Appeal 519 of 2015) [2024] UGCA 255 (4 September 2024)

Full Case Text

### 5 THE REPUBLIC OF U DA

## IN THE COURT OF APPEAL OF UGAN DA AT MBARARA

Coram: Eva Luswata JA Oscar Kihika JA A Mu en JA

## CRIMINALAPPEAL 519 of2O15

[Appeal from the Judgement of High court at Mbarara ln crimlnal sesslon Case 2OO of 2Ol1 by Vincent T, Zeh:uriklze J. delivered on 23'd October 2013I

# BARAHUKA NABOTH ::::::::3:::::3::::::::::::::33::::::::3::::::::::::::33:3:: APPELLANT

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15 UGANDA ::::r::::::::::::::33:::3::::::::::::l::::::::3333::::::3:::::::33::::::::::3: RESPONDENT

## JUDGMENT OF THE COURT

## 1. INTRODUCTION

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This is a first appeal from the decision of the Vincent T. zehuril<tze J. delivered on 23.d October 2013 in the High court of Uganda at Mbarara. The appellant was convicted for aggravated robbery and sentenced to 21 years of imprisonment.

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## 2. BACKGROUND

30 The brief facts to the case are that. On 17th December 2010, the complainant, one Musoke Twaha, left Kampala, driving a Fuso motor-vehicle, Registration No. uAK 52OC proceeding to Ntungamo. The said motor vehicle was carrying zebra waragi and zebra T-shirts. The complainant was with a turn boy called Dalausi. Upon reaching Ruti trading center in Mbarara, they decided to rest up to 5'2O am, then set off to Ntungamo. When they reached five miles on the Mbarara-Kabale road they were intercepted by two men, one armed with a gun. The driver stopped the vehicle and jumped out of the vehicle with the turn boy. They ran to

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- a nearby bush. Later they came out of the bush, went to the vehicle ald discovered that the robbers had taken a box of zebra T-shirts, a jacket and a torch. The complainant reported the matter to the police who investigated. They were informed that the accused was selling zebra T-shirts in Mbarara town, but they failed to arrest him. He was later arrested while selling a mobile phone in 5 - Mbarara town. The appellant made a charge, caution statement, and admitted having participated in the offence with a one MwesiSre Alex' The accused also ledthepolicetoabushnearRwiziwheretheyhadhiddenthetoy-gunbutit was not recovered 10 - The accused pleaded guilty, was convicted as charged, and was sentenced to 21 years of imprisonment. The appeilant being aggrieved by the decision of the High Court liled this appeal against the conviction and sentence of the High Court' 15

## 3. GROUN DS OF APPEAL

The appellant's grounds of appeal as set out in the memorandum of appeal are;

- 1. That the learned trial Judge erred in law and fact when he recorded and relied on an equivocal plea of guilty to sentence the appellant hence arriving at an erroneous decision. - 2. The learned trial Judge erred in law and fact when he convicted and sentenced the appellant based on facts he had denied hence occasioning a miscarriage of justice. - 30 - 3. That the learned trial Judge erred in law and fact when he sentenced the appellant to a harsh and excessive sentence for the offence of aggravated robbery yet there was no deadly weapon hence occasioning a miscarriage of Justice.

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### Representation

At the hearing of the appeal on 4th September 2024, the appellant was represented by Mr. chan Geoffrey Masereka on state brief while the respondent was represented by Mr. Sam Oola, Senior Assistant Director of Public Prosecution.

## SUBMISSIONS OF THE PARTIES

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## 4. APPEL T'S SUBMIS SIONS

The appeliant argued grounds one and two together. He submitted that he pleaded guilty to the charges, save for the use ofa deadly weapon. He stated that he used a toy gun. The trial court however never considered the existence of this fact and ignored it hereby sentencing him for the offence of aggravated robbery.

The appellant submitted that the duty of the first appellant court is to review the evidence of the case and to reconcile the materials adduced before the trialjudge. The appellate court must then make up its mind not disregarding the judgment appealed from but carefully weighing and considering it as held in Kifamunte Henry u {. Jganda SCCA 10 of 7997 .

30 35 The appellant cited wasaja u [Jgand.a [1975] EA 181 where the trial Judge declined to convict for aggravated robbery under S. 273(21 of the Penal code because he was not satished that the appellant had threatened to use the pistol he wielded. The court of Appeal said that this was a wrong decision because that wielding of the pistol was sufficient threat. Nevertheless, the appellant court decided that the trial judge rightly convicted the accused for simple robbery rather than aggravated robbery. This was because there was no proof beyond reasonable doubt that the pistol was a deadly weapon'

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The appellant submitted that a deadly weapon was defined in Bagtrma Stephen and anor u ugandasccA 40 of 2003 to include any instrument made or adopted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes is likely to cause death'

The appellant submitted that at the plea taking, the facts were read to him. He submitted that the facts were true save that he used a toy gun, which he had made himself and. was handed over to the Rapid Response Unit' The appellant stated that in Baguma Steuen & Anorv tJganda (supra) the Supreme Court noted'

"We agree that in a case where the decision to convict for capital or simple robbery depends on the nature of the weapon used or threatened to be used' it islegitimateandindeeddesirableforthetrialcourttoprobefordetailed description of the weapon in issue. However, it cannot be correct to suggest than in any case, where such probe is not done, the possibility of the weapons being imitations is necessar5z not ruled out. Much depends on the weapon in issue''

The appellant submitted that the weapon used in the robbery was a toy gun which did not amount to a deadly weapon capable of constituting the offence of aggravated robbery. The offence in this case ought to have been simple robbery arrd not aggravated robbery.

The appellant averred that it has been decided in cases, that it is desirable that atrial judge, on a plea of guilty, he should not only satisfy himself that the plea is an unequivocal plea, but should also satisfy himself that the accused understands the elements which constitute the offence and the penalty. where the plea taken does not amount to an unequivocal plea of guilty to the offence to which the accused is convicted, the conviction must be quashed. The appellant cited lomasi Mufumu u R [ 1959] AA 625 and R u Tambukiza s/ o tlnAonga ll958l DA2l2.

35 The appellant submitted that the plea of guilty to the offence of aggravated robbery was recorded in error as he denied the facts constituting the offence of

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5 aggravated robbery when he stated that he used a toy gun. A toy gun does not amount to a deadly weapon capable of forming the ingredient of the offence.

On ground 3, the appellant submitted that the sentence was harsh and excessive sentence because it was for the offence of aggravated robbery rather than simple robbery hence occasioning the miscarriage of justice. He implored this court to invoke S. 87 0f the Trial Indictment Act and S. 180 of the criminal Procedure Code that empowers this court to find an accused guilty of a minor cognate offence where the facts of the case permit it.

- The appellant submitted that it is trite law that the appellant court will only interfere with the sentence of a trial court if there is an illegality such as where the tria-l court acted contrary to the law or upon a wrong principle, or overlooked a material factor. He cited Jackson Zita u uganda SCCA 19 of 1995 and Liuingstone Kakooza u uganda sccA 17 of 1993. He submitted that the trial court erred to convict him for the offence of aggravated robbery instead of the simple robbery, which rendered the conviction and sentence illegal. He prayed t5 20 - that that this court find that he committed simple robbery and accordingly reduce the sentence to a more lenient term. - The appellant cited sentences imposed in previous cases of similar nature. He cited Adam Owonda u Uganda Criminal Appeal 8 of 1994 where a sentence of 8 years of imprisonment was confirmed by the Supreme Court as appropriate for simple robbery. He also cited Hanuna Turyakira & 2 Anor u Uganda CACA 146 of 2O03 where the appellants though charged with aggravated robbery, were convicted of the lesser cognate offence of simple robbery and were each sentenced to 14 years of imprisonment. ln Obbo Francas u Uganda CACA 339 of 2010 the appellant had been sentenced to life imprisonment, but this sentence was substituted to a sentence of 15 years. In Katuku u Uganda CACA 178 of 2014 the court reduced the sentence as one for simple robbery to 14 years. 25 30

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5 The appellant invited this court to invoke the provisions of S. 34(1) of the Criminal Procedure Act which is to the effect that, the appellant court on any appeal against conviction, shall allow the appeal if it thinks that the judgement should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law, if the decision has in fact caused a miscarriage ofjustice, or any other ground if the court is satisfied that there has 10

# been a miscarriage of justice.

### 6. RESPONDENT'S SUBMISSION

The respondent opposed the appeal and supported the conviction and sentence. It agreed with the submissions of the appellant on the duty of the l"t appellant court.

The respondent responded to ground one and two together' The respondent referred to p. 6 of the record of proceedings where the indictment was read and explained to the appellant and he said, 'I have heard the charge, it is true we robbed him, but we used a toy gun. I made it myself. I handed it to Rapid Response unit.' The respondent submitted that the court went ahead and convicted the accused for aggravated robbery on his plea of guilty' The respondent cited Adnan V Republic (1973) EA at p, 446 where the procedure for recording a plea of guilty was stated. 20

The respondent submitted that the statement of the appellant that he used a toy gun to rob the victim does not change the nature of the offence. It is immaterial that the accused used a gun or a toy gun. The offence of aggravated robbery would still be committed in either situation. The respondent referred to S. 286(3)(a)(i) now S. 267(3)(a)(i) of the Penal Code Act which provides.

"ln subsection (2), 'deadly weapon'includes any instrument made or adopted for strooting, stabbing or cutting and any imitation of such an instrument."

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g. dt-\* - 5 The respondent submitted that from the above definition, a toy gun is a deadly weapon because it is an imitation of a gun. The trial judge rightly entered a plea of guilty against the appellant and properly convicted him' The respondent averred that no miscarriage of justice was occasioned to the appellant' It submitted that ground I and 2 of the appeal lack merit and should fail. - 10

On ground 3, the respondent submitted that the sentence of 18 years of imprisonmentagainsttheappellantisnotillegalnormanifestlyharshand excessive. It contended that the trial judge considered both the aggravating and mitigating factors and he deducted the period spent on remald. The respondent submitted that the resultant sentence passed by the trial Judge is appropriate as demonstrated by decided cases of this court and the Supreme court. It cited Bogere Assimtae Moses and another u tJganda SCCA 39 of 2016 where the appellant was convicted of aggravated robbery and sentenced to 20 years of imprisonment. The tria-l Judge considered that there was neither death nor violence occasioned in the commission of the offence; some of the stolen items were recovered among other mitigating factors. Their appeal to this court and the Supreme Court failed.

The respondent submitted that the sentence of 18 years of imprisonment against the appellant is within the range of sentences passed by this court and the Supreme Court in cases of similar nature with similar facts' It prayed that the sentence of 18 years of imprisonrnent against the appellant be upheld and the appeal be dismissed. 25

## 30 7. DETERMINATION BY COURT

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

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- on any issue in its totality and not any piece in isolation. It is only through such $\mathsf{S}$ re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. See *Baguma Fred v Uganda* SCCA 7 of 2004 and *Kifamunte Henry v Uganda SCCA* 10 of 1997. We shall keep in mind the above duty as we resolve this appeal. - 10

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We note that the appellant's arguments and cases cited by him refer to S. 273 of the Penal Code Act on the definition of a deadly weapon. The said Section of the Penal Code Act was amended by the current S. 286. The amendment was assented to by the President on $2^{nd}$ August 2007. By the time the appellant committed the offence on 17th December 2010, the amendment was in effect and not the old Section. We agree with the respondent that the current law under the

Penal Code is S. $286(3)(a)(i)$ of the Penal Code which states.

- "(3) In subsection (2) "deadly weapon" includes— - (a)(i) an instrument made or adapted for shooting, stabbing or cutting, and any imitation of such an instrument. - (ii) any substance, which when used for offensive purposes is capable of causing death or grievous harm or is capable of inducing fear in a person that it is likely to cause death or grievous bodily harm; and

(b) any substance intended to render the victim of the offence unconscious."

It is clear from the new law that the 'use' or 'threatened use' of a deadly weapon 25 which includes any imitation with the intention to instill fear in the victims creates the offence of aggravated robbery.

The appellant in his response to the plea when it was read to him stated; 'I have heard the charge, it is true we robbed him, but we used a toy gun' While the 30 appellant was aware it was a toy gun and admitted the same to the trial Judge, the victims were not aware it was only a toy. The victims at the time of the commission of the offence could not have known or had the ability to test whether the gun was real or not. They were honestly afraid for their lives, hence running away and this forced the victims to part with their property. Once a gun 35 is drawn there is little or no time for the victim to determine whether the same

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5 is a loaded gun or a mere imitation of a firearm as that would be tantamount to gambling with life which can only be lost once. The effect a toy gun has on the victim is the same as a real gun. The victim will not give less money in a robbery because he has been robbed using a toy gun. The state of mind of the victim may not be affected by the difference between an imitation and the real weapon. If the victim is aware that he is being robbed by an imitation he may refuse to comply 10

with the demands of the robber.

On his own admission, the appellant said he used a toy gun. The appellant's counsel did not address his mind to the new law which includes imitations as deadly weapons. The toy gun that the appellant wielded did in fact amount to a deadly weapon under S. 286 (3)(a)(i) in as far as it was an imitation of a gun' Ground I and 2 lack merit and hereby fail. What is surprising is that the toy gun that the appellant alleged to use was never tendered in court. This was not necessary as the appellant admitted in his plea of guilt. The appellant submitted that he gave the toy gun to the Rapid Response Unit. But the summary of the case accompanying the charge sheet shows that the gun was never recovered. Did the appellant conveniently lose it in the hope that he will get a lighter sentence? If the law were to give lighter sentences to robbers who use imitations as compared to the real deadly weapons would it not encourage them to hide the real deadly weapons in hope of getting lighter sentences? 15 20

On ground 3, the appellant contended that the trial Judge imposed a harsh and excessive sentence on him. In determining whether the sentence was excessive, we shall consider the mitigating and aggravating factors. The aggravating factors as submitted by the prosecution are that the offence committed by the appellant is a serious offence, which attracts a death penalty. It is rampant. The prosecution prayed for a custodial sentence. In mitigation the appellant submitted that he pleaded guilty and did not waste court's time. He is an orphan looking after three siblings. He is a first-time offender' Upon his arrest, he was tortured and he got a fracture on the knee. The appellant also stated that he had 30

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5 learnt a lot during the period he had been on remand. He prayed for a lenient sentence so he can look after his wife and children as his wife went away.

The trial Judge in sentencing the appellant stated as follows.

"l have considered submissions of both counsel and the convict's prayer. In particular, I have noted that the convict is a first offender who has pleaded guilty thereby not wasted court's time and remorseful. He has a family to look after but on the other hand, he committed a serious offence attracting a maximum sentence of death. I would have sentenced him at the minimum to a term of 21 years imprisonment but having deducted the period he had been on remand I sentence him to a term of 18 years imprisonment.'

The maximum penalty for the offence of aggravated robbery with which the appellant was convicted is death. Under the Constitution (Sentencing Guidelines for Court of Judicature) (Directions), 2O13, the starting point for aggravated robbery is 35 years and the sentencing range is between 3O years until death.

In this case, we note that the appellant is a young man who used an imitation gun to force his victims to surrender their hard-earned items. He should be working to earn an honest living instead of forcefully robbing people of their property. We are alive to the fact that courts are enjoined to maintain consistency

- in sentencing while being mindful that each case Presents its own facts. ln Abetle Asuman u Uganda Supreme Court Criminal Appeal 66 of 2016 the appellant was convicted of the offence of aggravated robbery and was sentenced to life imprisonment by the High Court. The Court of Appeal reduced the sentence of life imprisonment to a sentence of l8 years of imprisonment. On further appea-l to the Supreme Court on the ground that the sentence of l8 years' 25 30 - imprisonment was a harsh and excessive sentence; the court upheld the 18 years of imprisonment imposed by the Court of Appeal. ln Bogere Asiimtte Moses and Sengonga Sundag u Uganda; Supreme Court Criminal Appeal 39 of 2016 [2018] UGSC gth April 2O 18) the Supreme Court upheld a sentence of 2O years' imprisonment imposed for aggravated robbery. The appellants were 22 and 23 years old respectively. The court noted that there was no violence, no death 35

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5 occurred, and some property was recovered. ln Rutabingwa James u. Uganda, Court of Appeal Criminal Appeal 57 of 2071, this court confirmed a sentence of 18years of imprisonment for the offence of aggravated robbery. ln Lule Akim u IJganda, Criminal Appeal 274 of 2015, this court upheld a sentence of 2O years' imprisonment for aggravated robbery that had been imposed by the trial court, 10 which they found to be neither harsh nor excessive.

We have considered the mitigating and aggravating factors in this case. We have a-lso looked at the sentences imposed by the court on the same offences. The sentence the trial judge imposed was in the range of the said cases. We find that

15 the trial judge properly and carefully considered all of the factors properly before pronouncing sentence. We find no reason to interfere with the sentence of 18 years of imprisonment of the appellant, which is what we confirm. The judge had sentenced the appellant to 21 years but removed the three years spent on remand. This appeal is hereby dismissed, as it has no merit.

Dated at Mbarara tr,i".l\*I. a"y 2024

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