Byaruhanga v Uganda (Criminal Appeal No. 49 of 2016) [2023] UGCA 389 (6 July 2023)

# THE REPT]BLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA CRIMINAL APPEAL NO. 49 OF 20T6

(Coram: Buteera, DCJ, Bamugemereire & Lusutata JJA)

### 5 BYARUHANGA GODFREY:::::::::::::::::::::::::::::::::::3:::!:!::::: APPELLANT VERSUS

UGANDA ::::3:33:::::::::::::::::::::::!!3::!:3:3r3r:::::::::::::::::::::: RESPONDENT

(Appeal against the decision of Rugadya Atwoki J in High Court Criminal Case No. 44 of 2012 at Masaka)

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### fntroduction

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The appellant was convicted of the offence of Attempted Murder contrary to section 20a @\ and (b) of the Penal Code Act cap 120 and sentenced to

life imprisonment. On the 30'h of January 20L2, at Kijuna A village, in Rakai district, the appellant and others attempted to murder Marita Ndagire. 15

### Background

The facts as accepted by the lower court were that on the 30th day of January 20L2 at around 7:00 am, the victim Marita Ndagire, went round her house to pick firewood for cooking her meal. She espied one Dan (the suspect at large) lurking around her kraal. The suspects, the appellant and the above said Dan, approached her at her kitchen and purported to request her for manual jobs. She informed them that she had no jobs. The 20

Appellant then hacked the victim with a cutlass, severally. She sustained 25

multiple injuries all over the head, chest, hands, back and ears. When she cried out, they run off. She managed to crawl back to the main house. The victim was was rushed to Byansi clinic in Masaka where she received first aid. She was eventually taken to Case Hospital for further management. The appellant was, in turn, arrested and accordingly charged with aggravated robbery and attempted murder. Upon a full trial the appellant was acquitted of aggravated robbery but was found guilty of attempted murder. He was sentenced to life imprisonment. Dissatisfied, the appellant sought leave of this court to appeal against sentence only. The sole ground of appeal is as follows;

The learned trial Judge erred in law and fact when he sentenced the appellant to life imprisonment which sentence was harsh and excessive in the circurnstances thereby occasioning a miscarriage of justice.

#### Representation 15

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At the hearing of the appeal, the appellant was represented by Mr. Innocent Kalibala on State Brief while Ms. Fatimah Nakafeero, Chief State Attorney; Office of the Directorate of Public Prosecutions represented the respondent. The appellant was present in court.

Leave was granted to the appellant to appeal against sentence only. Both counsel opted to proceed by written submissions, which were adopted by 20 court

### The Case for the Appellant

25 Counsel for the appellant submitted that the trial Judge was swayed by emotions based on the injuries inflicted on the victim and disregarded the

principles of sentencing. He submitted that the trial Judge disregarded all mitigating factors that would have assisted court reach a just sentence.

It was counsel's contention that the sentence of life imprisonment in <sup>a</sup> case of attempted murder is beyond the sentencing range envisaged by

5 the courts. Counsel cited Mohammed Yasin Sekajolo v Uganda SCCA No. lB of f99l where the appellant was convicted of the offence of attempted murder; this court confirmed a sentence of B years imprisonment and the Supreme Court found it harsh and reduced the sentence to 6 years imprisonment. He also relied on Okucu Joel and Another v Uganda CACA

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Counsel contended that the trial Judge disregarded the mitigating factors, which would have helped court reach a just sentence.

Counsel submitted that a sentence of 15 years imprisonment would have been appropriate. Counsel invited this court to set aside the sentence of life imprisonment.

### Case for the Respondent

Counsel for the respondent contended that in arriving at the sentence of Life imprisonment the learned trial Judge had a comprehensive consideration of both the mitigating and aggravating factors. Counsel argued that sentencing is in the discretion of the trial Judge. He relied on Sekitoleko Yudah & Anor v Uganda SCCA No. 33 of 2014. 20

It was counsel's submission that the appeal raises questions regarding pre-sentencing procedure which ought not to be raised at this point in time but should have been raised at the trial court. Counsel cited Ojangole v Uganda SCCA No. 20 of 2019 to that effect.

Counsel submitted that all the mitigating factors raised now were raised at the trial court and were considered by the trial Judge before passing sentence. She argued that altering the sentence on grounds of mitigating factors which were already considered by the trial court would be 5 unnecessary interference with the discretion of the trial court.

Counsel for the respondent further contended that although she is mindful of the principle of consistency while sentencing, each case presents its own facts upon which the court exercises its discretion. She invited this court to find that an appropriate sentence is a matter for the discretion of a sentencing court.

Counsel referred this court to the victim's testimony and the trial Judge's sentencing notes and drew a conclusion that the intention of the appellant was to end the life of his victim. Counsel further submitted that the punishment for attempted murder under section 20a@) and (b) of the Penal Code Act is life imprisonment. It was her submission that the sentence passed by the trial court was appropriate in the circumstances and should be upheld by this court.

20 Counsel prayed that this court upholds the sentence and dismisses the appeal.

### The Decision of the Court

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The appellant in this case is appealing against sentence only. We have carefully considered the submissions and authorities graciously supplied 25 by both Counsel and have traversed the entire the record. We also took

the liberty to research and include other authority not referred to by counsel.

We are alive to the duty of this court as a first appellate court to reappraise all the evidence at trial and come up with our own inferences

5 O10 of law and fact. (See Kifamunte Henry v Uganda SCCA No. l0 of 1997). We are also cognizant of the fact that we cannot interfere with the sentence imposed by the trial court which exercised its discretion unless the sentence is illegal or is based on a wrong principle or the court has overlooked a material factor or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. (See Kamya Iohnson Wavamuno y Uganda SCCA No. 16 of 2000 and Livingstone Kakooza v Uganda SCCA No. 17 of 1993).

In the instant appeal, counsel for the appellant contended that the 15 sentence of life imprisonment was harsh and excessive and that the trial Judge did not consider the mitigating factors.

20 25 We have had the opportunity to reappraise the sentence passed by the learned Trial Judge. We noted that in arriving at sentenceo the trial Judge considered both aggravating and mitigating factors. The aggravating factors alluded to at sentencing included that the injuries suffered by the victim were severe, extensive and life threatening. The victim, now permanently impaired can only move by use of a wheelchair. The appellant was a former worker who earned a livelihood by working for the victim's family. The mitigating factors considered were that the accused was a young offender aged 37 years with no previous conviction.

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It is our considered view that the trial Judge considered the mitigating factors before passing his sentence.

Regarding the contested sentence of Life imprisonment, we refer to Kiwalabve v Usanda SCCA No.l43 of 2001 for the proposition that sentencing is at the discretion of a trial judge and an appellate court may only interfere with a sentence so imposed if it is evident that the trial court acted on a wrong principle or overlooked some material fact, or if the sentence is manifestly harsh and excessive.

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O10 We are alive to the Supreme Court decision in Aharikundira v Uganda SCCA No. 27 of 2015, which underlined the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts.

15 We however note that there can hardly be consistency in the sentences of this court when each case presents its own unique facts that are distinguishable.

For instance, in Syson Muganga v Uganda CACA No. 33 of 2005, the appellant was sentenced to Life Imprisonment for Attempted Murder where the victim sustained wounds from a corrosive substance. This Court confirmed the sentence of Life Imprisonment. Beyond Syson, there appears to be a dearth of authority in this regard.

In Okucu Joel & anor v Uganda CACA No. 120 of 2010 this court imposed a sentence of 15 years imprisonment for Attempted Murder from which it deducted the period spent on remand. 25

In Okwakol Sam v Uganda CACA No. 9 of 2019 this court found a sentence of 15 years appropriate for the offence of Attempted murder.

In Mwesigwa John & 3 Ors v Uganda CACA No. 164 & 394 of 2014 the appellants were charged with 3 counts of Murder, Aggravated robbery $\mathsf{S}$ and Attempted murder. They were sentenced to 25 years for murder, 20 for Aggravated Robbery and 7 years for Attempted murder.

Based on the assessment of similar cases above, we find that a sentence of Life imprisonment was harsh and excessive.

We are alive to the principle of consistency with similar cases, but we find this case unique because of the way in which the victim was attacked. Having considered the totality of the circumstances in this case, we find that a sentence of 18 years imprisonment would serve the interests of justice. From this we deduct the 2 years and 11 months the appellant spent on remand.

The appellant will serve a sentence of 15 years and 1 month imprisonment to run from the date of conviction, which was 30<sup>th</sup> January 2015.

This appeal therefore succeeds. $20$ We so order<br>Dated at Kampala this.................................... $2023$

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Richard Buteera **Deputy Chief Justice**


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Catherine Bamugemereire

Justice of Appeal

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$\overline{1}$ $15$ Eva K. Luswata **Justice of Appeal**

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