Byamugisha v Uganda (Criminal Appeal 665 of 2015) [2024] UGCA 208 (9 August 2024)

## THE RIPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

## CRIMINAL APPEAL NO. 0665 OF 2015

(Arising out of the Judgment and orders of His Lordship Michael Elubu at Mbarara in HCT- 1 1 -CR-CO-OO 1 -2 O 1 2 )

#### BYAMUGISHA SAMUEL : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

## UGANDA ::::::::::::::::::::::::::::::::::::::::: RESPONDENT

### CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHII(4, JA

#### JUDGMENT OF COURT

1q The Appellants were indicted and convicted of the offence of Aggravated Robbery and sentenced to 22 yexs and 6 months' imprisonment. The Appellant was also ordered to compensate the victim the lost items worth Ugs 640,000 /= and hospital expenses of Ugs 15O,0OO/=.

The Appellant was dissatisfied with the decision of the trial court and hled this appeal on the following grounds; 20

1. The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record thus making a wrongful finding that there was theft of 590,OO0/= by the Appellant and convicted the Appellant for aggravated robbery leading to a miscarriage of justice.

- 2. Th,e learned trial Judge erred in law and fact when he sentenced the Appellant to a sentence of 22 years and 6 months' imprisonment that was harsh and excessive in the circumstance. - 3. The learned trial Judge erred in law and fact when he ordered the Appellant to compensate the victim for the lost items ug shs 640,00O and hospital expenses of 150,O00/= yet the sarne were not proved and hence causing a miscarriage of justice.

#### Background

On the night of 22 lL2 12011 at around 10:30 pm, the victim was walking from her place-of work at Voice of Kigezi building to her residence at Ken- Rub Apartments. When the victim reached at Manhattan Hotel, she noticed that someone was following her but she did not mind and she continued walking towards her home. When the victim was approaching the main gate to her Apartment, she called one John, the Apartment custodiar, to open the gate for her. While at the main gate the Appellant, who had been following her, by passed her and went ahead of her. The unidentified person then branched off shortly after the main gate to Dr. Anguyo's Clinic. As the victim was concentrating on knocking at the gate with her phone on her ear, the person who had been trailing her came just behind her and stabbed her with a sharp object on her head and she fell down. She sustained a serious injury and bled profusely. The 15 20

attacker grabbed the victim's mobile phone a Sumsung C32 valued at Uganda Shs 32O,OOO/= (Three Hundred Two Thousand Shillings), a money purse with 590.000/= (Five Hundred and Ninety Thousand Shillings), Kaba-le University identity card and an examination registration card, the keys and a pass port photo and ran away from the scene of crime. The victim could not continue to her room. She got a Boda boda and went back to her place of work to seek assistance from her colleagues. She found Didas Ndamira and other colleagues who drove her to Dr. Anguyo's Clinic for medical attention where she was admitted.

The stolen phone was eventually tracked and recovered from one Shaban who then led to the arrest of the Appellant who was charged with the offence of aggravated robbery.

#### Representation

At the hearing of this Appeal, Ms. Benita Namusisi appeared for the Appellant while Mr. Kulu Idambi John Boniface, Assistant DPP appeared for the Respondent. Both parties hled written submissions and the sarne were adopted as their legal arguments at the hearing of the appeal. 15

#### Appellant's submissions 20

Counsel submitted that the prosecution witnesses did not produce any evidence on how much money was stolen and neither did they prove the source of the money that the victim had in her purse.

Counsel contended that in absence of proof of whether the money existed, the Appellant cannot be convicted of aggravated robbery.

With regard to ground 2, counsel submitted that the sentence of 22 years and 6 months'imprisonment imposed on the Appellant was harsh and excessive in the circumstances of the case and did not follow the principle of uniformity. Counsel argued that the prosecution failed to prove the existence arrd ownership of the stolen money and as such, the order for compensation was wrongly made. In addition, that there was no evidence of medica-l bills brought by the prosecution to prove the amount of money spent treating the victim.

#### Respondents submissions

In reply, counsel submitted that the evidence of PWl was sufficient to prove that there was theft of money which she had in her purse at the time the offence was committed. The victim testihed that the bag had her phone C32 Samsung, Ug shs. 590,0OO/=, a Kabale University student's ID, an examination card and keys to her room. That the trial Judge was alive to the above evidence and rightly convicted the Appellant of the offence of aggravated robbery. 15

Counsel submitted that the sentence of 22 years and 6 months' imprisonment was neither harsh nor excessive in the circumstances of the case considering that the maximum sentence for the offence of aggravated robbery is death. The principle of uniformity should be exercised judiciously considering that no case can have similar facts as another. 20 25

# Consideration of the appeal

As a first appellate court, this Court is enjoined to carefully and exhaustively re-evaluate the evidence as a whole and make its own decision on the facts, bearing in mind that it has not had the opportunity to see or hear the witnesses, especially if the demeanour of the witnesses is key to the findings made. Even where the demeanour of witnesses is relevant, this Court may reverse the decision of a trial Judge if it is of the view that considering all the circumstances, the decision cannot stand. Where the question is one of drawing inferences from the facts adduced, this Court is free to reverse the f,rndings of the tria-l Judge, if a-fter reviewing the evidence, it is of the view that the hndings of the trial Judge were wrong (See the cases of Pandya v. R [1957] EA 336; Kifamunte Henry v. Uganda SCCA No. 1O oI 1997, and Bogere Moses and Another v. Ugauda, Supreme Court Criminal Appeal No. 1 of L9971. 10 15

> Rule 30 of the Judicature (Court of Appeal Rules) Directions SI 13-1() provides as follows;

o3O. Pouer to reappttlse evldence and to take addltlonol euldence

(1) On ang appealfrom o declslon of the Hlgh Court actlng ln the exerclse of tts ortgtnal JurtsdtctTon, the couti mag (a) Reoppralse the euldence and draut lnferences offact'

We shall bear the above principles in mind while resolving this appeal. We shall resolve the grounds ofappeal as argued by counsel.

# Ground I

Ground one faults the learned trial Judge for having convicted the Appellant of aggravated robbery in absence of proof that the victim actually had the said money.

Aggravated robbery is provided for under section 286 (2) ofthe Penal Code Act and it provides;

"285. Definition of robbery.

- 10 Ang person who steals angthing and at or immediatelg before or immediatelg afier the time of stealing it uses or threatens to use actual violence to ang person or propertg in order to obtain or retain the thing stolen or to preuent or ouercome resistance to its being stolen or retained commits the felong termed robbery. - 15 286. Punishment for robbery.

(1) Any person who commits the felong of robbery is liable- (a) on conuiction bg a magistrate's court, to impisonment for ten Aears; (b) on conuiction by the High Court, to imprisonment for tik.

20 (2) Notwlth.standlng subsectlon (1) (b), urhete at the ttme o!, or lmmedlatelg before, or lmmedlatelg afi.er the tlme of thc robbery, an offender uses or threqtens to use o deadlg ureapon or co;uses deoth or gri'euous lto,nn to ang person, such oJfender and dng other person Jolntlg concented ln

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# colmmlttlng such robbery sho,ll, on convlctlon bU the Htgh Court, be sentenced to death-

(3) In subsection (2), "deadlg weapon" includes any instrument made or adapted for shooting, stabbing or antting and ang instntment whiclt when used for offensiue pufposes, is likely to cause death."

To prove Aggravated Robbery c/s 285 and 286 (2) ofthe Penal Code Act, the prosecution has to prove the following elements of the offences:

- 1. There was theft of property. 10 - 2. Use of actual violence at, before or after the theft or that the accused caused grievous harm to the complainant. - 3. The assailants were armed with a deadly weapon before, during or a-fter the theft. - 4. The accused participated in the robbery. 15

It is not in contention that there was use of a deadly weapon or that the Appellant participated in the commission of the offence. The Appellant's appeal is against the frnding that the victim had items that were stolen from her, specifically the money she reported to have

been stolen by the Appellant. The Appellant contends that there was no evidence that the victim had the said money with her arrd that it was stolen. 20

The evidence of theft of the victim's bag, which had her phone Samsung C32,Ug shs. 59O,OOOl=, a Kabale University student's ID,

an exarnination card and keys to her room is in the evidence of Atukunda Sheila PWl, the victim, D/AIP Ntiringanya Richard, PW3 and Asuman Barirye PW4.

5 The evidence of PW1 was that she left her place of work at Orange Telecom on the Voice of Kigezi building in Kabale Municipality to return home after work. She walked along the road to Ken Apartments which is in Kigongi 'A' cell also in Kabale Municipality. She noticed that a man was following her for a distance of 15O m. When she got to her residence, at a place called Ken Apartments, the man walked passed her and went into a corridor next to the building. She got her phone to call the custodian to open the gate when suddenly the same man emerged from the corridor and hit her and she fell down. He picked her phone (a Samsung C 32 with a double line) which had fa-llen to the side before he stabbed her in the side of the head. He also took a money purse containing five hundred and ninet5r thousand shillings, & Kaba-te University Students ID, an examination registration card, passport photos and keys to her room 10 15

all valued at 960,000/-.

There was an electric bulb switched on, lighting up the gate area. The victim was able to see her attacker as a stout man wearing a stocking cap on his head with an ear pin. The entire episode lasted about 5 minutes. The victim made an alarm while running towards a boda boda stage nearby. A boda boda rider carried her back to her office from where she was transferred to a clinic belonging to one Dr. Anguyo and was admitted for a week on treatment. 20 25

On 6th January, 2Ol2 the phone was tracked and recovered from one Shaban who, according to D/C Basikana Dennis, PW2 stated that he had got the phone from a carpenter called Asuman Barirye, PW 4. According to PW4's testimony, the phone had been given to him

5 by the Appellant in part settlement of a debt owing from a set of chairs he had made for the Appellant. The chairs cost 1O0,0OO/- and the Appellant paid 60,000/- in cash and the phone as payment for the 40,000/- owing. PW 4 had in turn given the phone to one Shaban in the pal,.rnent of a debt. Shaban led the officers to the Appellant who at the time was admitted in hospital having been seriously wounded in the head in another incident. 10

The victim testified that she lost the items together with the money in her purse, which was stolen by the Appellant. The Appellant does not dispute the fact that the phone was stolen by him together with

the victim's bag but disputes the theft of the money worth 59O,0O0/=. The testimony of PW1 and her statement to police were sufficient to show court the particular items that were stolen by the Appellant before he stabbed her. 15

From the evidence of the prosecution, we agree with the finding of the learned trial Judge that the element of theft had been proved beyond reasonable doubt. Ground one therefore fails. 20

## Ground 2

Ground two faults the learned trial Judge for having imposed a sentence of 22 years and 6 months' imprisonment on the Appellant on grounds that it is harsh and excessive.

It has long been established that an appellate court should not interfere with a sentence imposed by a trial court where the trial court has exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be

- 5 manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial court ignored to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle (see Kyewalabye Bernard v. Uganda, Supreme Court Criminal Appeal - No. 143 of 2OO1). It does not matter that this Court would have given a different sentence if it had been the one trying the Appellant (see Ogalo s/o Owoura v. R (1954) 24 E,AC. A27O\. 10

The sentencing order of the learned trial Judge states as follows;

"The conuict shall be treated as a J"t offender.

He is a Aoung man but shorus no remorse for his actions He has spent 2gears on remand and this shall be taken into account. 15

> His actions caused the uictim great pain and she had to spend a week in the lwspital.

Tle conuict uill be sentenced to a custodial term so tlwt he is kept awag from the society. It tuill giue him a chance to reJlect on his actions. 20

This region suffers from a high rate of offences of a capital nature.

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For this reeson, the societg should be protected bg keeping him awag and deterrent messqge sent to those of a like mind. In tLrc circumstances I see a sentence of 25 years to be appropriate. I shall reduce by 2% gears spent on remand and sentence the conuict to 22% years in pison.

He is ordered to compensate the uictim the ualue of the items lost. 960, OOO-32O, OOO (ualue of phone) which is 640,000/ : Compensation for hospital expenses at 15O,OO0/ <sup>=</sup> The phone shall be rehtrned to the complainant.

1/ is so ordered."

It is clear from the sentencing order that the learned trial Judge took into account both the mitigating and aggravating factors of the case before sentencing the Appellant. We also note that the Appellant in this case was arrested from hospital after having been involved in commission of another offence in which he was severely injured. This was evidenced from the testimony of PW3 who led the ofhcers to the Appellant who at the time was admitted in hospital having been seriously wounded on the head in another incident. PW2, the arresting ofhcer, tracked him to Kabale Regional Referra-l Hospital and found the Appellant escaping from hospital before he received treatment.

It is established law and practice that punishment for an offence is meant to be a retribution as well as a deterrent. It is also meant to

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rehabilitate the offender. The sentence of 22 years and 6 months' imprisonment passed by the trial court to the Appellant is an appropriate sentence to rehabilitate the Appellant. We find no reason to interfere with it. Likewise, the compensation order was made under Section 286(4) of the Penal Code Act. The prosecution evidence was sufficient to prove the offence of aggravated robbery in which the victim was injured with a sharp object on her head and was taken to hospital for medical attention. We find no reason to fault the learned trial Judges' sentencing order.

10 This appeal is therefore dismissed. The Appellant shall continue to serve the sentence passed by the tria-l court.

We so order.

Delivered and dated this day or.8.!ih... zoz+. al-'-

RICHARD BUTEERA Deputy Chief Justice

CHRISTOPHER GASHIRABAKE Justice ofAppeal .tL

$\ddot{\phantom{a}}$ OSCAR JOHN KIHIKA<br>Justice of Appeal $\mathsf{S}$ $\overline{\phantom{a}}$ $\overline{ }$

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