Chesakit v Uganda (Criminal Appeal 7 of 2017) [2018] UGSC 101 (12 December 2018)

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT I{AMPALA

# [CORAM: ARACH-AMOKO, MWANGUSYA, OPIO-AWERI, MUGAMBA; JJSC AND NSHIMYE; AG. JJSC]

#### CRIMTNAL APPEAL NO. 07 OF 2OL7

#### BETWEEN

CHESAKIT MATAYO.... .......... APPELLANT

#### AND

UGANDA.... ......... RESPONDENT

15 (An appeal fron the Judgment of the Court of Appeal (Kasule, Bossa, Obura; . IIA) d.ated. 3@h Nouember, 2O76 ln Crl.nlnat Appeal No,ZS8 of 2o14.)

#### JUDGMENT OF THE COURT

20 This is an appeal from the decision of the Court of Appeal which dismissed an appeal against the sentence of life imprisonment imposed on the appellant by the High Court for the offence of murder contrary to sections 188 and 189 of the Penal Code Act.

#### Background:

The facts of the case as found by the High Court and conhrmed by the Court of Appea-l are as follows: The appellant who was an LC11 chairperson in his area in Kapchorwa district was alleged to have 25

'),

<sup>5</sup> murdered his mother in-law Ayeba Beatrice and Mwanga Moses the son to a neighbour, on the night of 61101200l. He was subsequently arrested and indicted on two counts of murder contrar5r to Sections 188 and 189 of the Penal Code Act. He was tried and convicted by the High Court (Rugadya J.) at Mbale. He was accordingly sentenced to death on both counts. The sentence on the second count was suspended. 10

He appealed to the Court of Appeal against both conviction and sentence but his appeal was unsuccessful. He then appealed to the Supreme Court. However, following its decision in Attorney General vs Susan Kigula & 417 others, Constitutional appeal No. O3 of 2OO6, the Supreme Court set aside the death sentence and remitted the appellant's file back to the High Court for mitigation and re-sentencing. Rugadya, J, after the mitigation hearing substituted the appellant's death sentences with life imprisonment on L8 / 7 I 2014.

Being dissatisfred with the subsequent sentences, the appellant appealed to the Court of Appeal on the ground that the sentences were harsh and excessive. The Court of Appeal dismissed the appeal and conhrmed the sentences on 30/lll16. The appellant was dissatished with the decision of the Court of Appeat and lodged this appeal.

In the Memorandum of Appeal, his appeal to this Court is based on only one ground:

<sup>5</sup> 1. That the learned Justices of Appeal erred in law when they failed to adequately re-evaluate the evidence as regards sentence hence reaching an erroneous decision.

#### Representation:

Mr. Henry Kunya represented the appellant while State Attorney Barbra Masinde appeared for the State. Both parties hled written submissions. 10

### Submissions of Counsel:

The thrust of Mr. Kunya's submission was that the leamed Justices failed in their duty as a l"t appellate court to subject the evidence on record to a fresh scrutiny and hence reached an erroneous decision that the resentencing Judge had considered all the mitigating factors before arriving at the sentence of life imprisonment. Counsel submitted that had they done so, they would have found that the learned resentencing judge had not considered some material facts and mitigating factors that counsel for the appellant had raised before him and which the appellant had confirmed, namely: 15 20

l) Family responsibility. According to paragraph 21(m) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, Legal Notice No.8 of 2O13, the judge is under a duty to take into account the mitigating factor of family responsibilities where the maximum sentence is death as it was in the instant case. 25

- 2) The prospects of reconciliation. Article 126 (2lr(d) of the 1995 Constitution of the Republic of Uganda requires that in adjudicating matters of both civil and criminal nature, courts must be alive and encourage /promote reconciliation between parties. - 10

Counsel also submitted that the resentencing Judge did not deduct the period of three years that the appellant had spent on remand as provided by paragraph 15(2) of the Constitution (sentencing Guidelines for Courts of Judicature) Practice Directions, Legal Notice No.8 of 2O13 even after the judge addressed his mind to the said guidelines in his judgment. Counsel argued that in the process the appellant was denied the opportunity to benefit from the 3 years spent on remand which is the essence of the Sentencing

Guldelines (supra) and Article 23(8) of the Constitution, notwithstanding the 1O years the appetlant had spent in incarceration before mitigation of sentence. 20

Counsel added that the appellant was greatly prejudiced by the failure of both courts to properly interpret and apply the 2s Sentenclng Guidelines and Constitutional imperative in that he was sentenced to life imprisonment.

Mr. Kunya also submitted that the sentence of life imprisonment against the appellant was not properly addressed considering the circumstances of the case and similar precedents such as Kamya Abdullah & Ors vs Uganda, No. 24 of 2O15 (SC). He pointed out

<sup>5</sup> that discretion in passing sentences against convicts must be exercised judicially by taking into consideration all factors, circumstances and precedents for similar offences,

\

10 He submitted further that the appellant's appeal was premised on the settled principle of law laid down by the Supreme Court in the case of Kiwalabye vs Uganda, Criminal Appeal No. 143 of 2OO1 (SC) which was cited with approval in Rwabugande Moses vs Uganda, Criminal Appeal ltlo. 25 of 2Ol4 (SC), that an appellate court will only interfere with a sentence imposed by the trial court if 1s it is evident that the trial court ignored to consider an important matter or circumstance which ought to be considered when passing the sentence or if the sentence is manifestly harsh and excessive in the circumstances of the case.(Emphasis added)

20 ,s He therefore invited this Court to find that the sentence of life imprisonment imposed on the appellant by the resentencing judge and confirmed by the Court of Appeal was improper for the above reasons and called on the Court to invoke its powers under section 7 of the Judicature Act (Cap 13) which vests this Court with all the powers and jurisdiction of the court from which the appeal originally emanated in order to arrive at an appropriate sentence.

In conclusion learned Counsel invited this Court to find that the sentence of life imprisonment is improper and should be set aside or substituted with an appropriate sentence.

- <sup>5</sup> Counsel for the respondent on the other hand opposed the appeal and submitted that all mitigating factors were considered and the 1"t appellate court had referred to the resentencing proceedings by the tria-l judge in upholding the sentence. It was submitted that the factors included the fact that the appellant was a frrst offender, had spent 13 years in prison, had suffered death row syndrome, his - 10

youthful age and the attempt to reform.

She contended that the ordina4r usage of the word ..include" by the tria-l Judge in considering the mitigating factors indicates that the list is indicative and not exhaustive. counsel submitted that the 1s trial judge was mindful of all the mitigating factors although he did not specifically mention the factor of family responsibilities. She said that that notwithstanding, the Court found that the aggravating factors outweighed the mitigating factors which pushed the sentencing period upward.

20 25 She further submitted that after putting all the factors together, the learned Judge still exercised his discretion and imposed on the appellant a life sentence instead of a death sentence. Counsel said that failure to specifically mention the mitigating factor of family responsibilities did not occasion a miscarriage of justice to the appellant.

Counsel also argued that the Court of Appea\_l observed that the learned judge was right because the appellant had killed two people one of whom was the appellant's mother in law. She argued that in the premises, the Court of Appeal had rightly concluded that their

<sup>5</sup> own re-appraisal did not reveal any matter, circumstance or principle that the trial judge had ignored and it was on that premise that they dismissed the appeal. Counsel invited this Court to similarly find.

Regarding the issue of deducting the period spent on remand, counsel submitted that the record of the resentencing proceedings that the Court of Appeal referred to indicated that the trial judge stated specifically that the appellant had spent 13 years in prison from the time of remand and that the Constitution enjoined him to take that into consideration and that the learned judge actually did so while sentencing the appellant to life imprisonment. Counsel stated that the period considered included the 3 years that the appellant had spent on remand. She stated that this was all that the learned judge was required to do by Article 23(8) of the Constitution and the case of Kizito Semakula vs Uganda, Criminal Appeal No. 24 of 2OO1 (SC). 10 15 20

Counsel for the respondent also relied on the case of Abelle Asuman vs. Uganda, No. 66116 (SC) in support of her submissions.

She invited Court to find that both Courts need not have arithmetically deducted the period spent on remand, but she added that the Courts were alive to that requirement and did take it into account in meting out the sentence of life imprisonment. 25

- <sup>5</sup> Counsel further contended that like in the case of a death sentence, the sentence of life imprisonment is not amenable to Article 23(8) of the Constitution. She said the Article applies only where there is a quantified term of imprisonment. See; Magezl Gad vs. Uganda, No.t7l14 (sc). - Counsel further argued that life imprisonment is a sentence prescribed by law and the sentencing Judge has the discretion to impose such a sentence or the maximum death penalty. She submitted that Courts having found that the aggravating factors outweighed the mitigating factors, the punishment was commensurate with the crime. Counsel therefore invited this Court to find, just as the Court of Appeal did, that the aggravating factors far outweighed the mitigating factors and that the sentence imposed by the lower Courts was commensurate with the crime. 10 15

Lastly, she prayed that the sentence imposed by the two Courts below be upheld and the appeal dismissed by this Court. 20

## Consideration of the Court

We have addressed ourselves to the record, submissions and also the authorities which Counsel for both parties cited.

25 We note that the appeal is against sentence only. It is a second appeal. Under section 6(3) of the Judicature Act, the appellant has a right of appeal only against the legality of sentence not its severit5r. The section reads:

# "5, Appeals to the Supreme Court ln Crlmlnal mdtters

5 (1)...

(2)...

(3) In the case of an appeal to the Supreme Coutt agalnst sentence qnd an order other thq.n one flxed bg laut, the accused person rnqg appeol to the Supreme CourA o,go:lnst the sentence or order , on oL mqlter of laut, not lncludlng the seuerltg of sentence.'

Secondly, the principle governing re-evaluation of evidence by this court cannot be overemphasized. Ordinarily, this Court on a second appeal will not re-evaluate the evidence in the manner of a frrst appellate court. It can only re-evaluate evidence and interfere with the concurrent findings of the lower courts where it is apparent that on approaching its task as a first appellate court, the Court of Appeal failed in its duty to properly review the evidence on record. (See: Bogere Charles v Uganda, Criminal Appeal No. 1 of 1997(SC), Kifamunte Henry v Uganda, No. 1O of 1997(SCf and Mullndwa v Uganda lYo. 23 of 2014.1

It is also settled that sentencing is a matter of Court's discretion and has to be exercised judicially and on good principles. The principles upon which an appellate Court will act in exercising its jurisdiction to review sentences are firmly established. An Appellate Court can only interfere with the sentence where a trial Court failed to exercise its discretion judiciously or acted on wrong principles. We have had occasion to state that: - 5 uThe appellate Coutt is not to lnterfere ulth the sentence lmposed bg a trlal Court where the Court has exerclsed its dlscretlon of sentence, untess the exerclse of dlscretlon is such thqt lt results ln the sentence lmposed to be mantfestlg excesslve or so low q.s to o,mount to q mlscarrlage oJJustlce, e7 - 10 uhere the trlql Court lonores to conslder an lmoortant matter or clrcumstance whlch ouqht to be consldered whlle passlng sentence or where sentence lmposed ls utrong in prlnclple. Where the trlol Court glues reasons, the Appellate Coura wlll lnterfere onlg if the reasons glaen are clearlg wrong or 1s untenable. Where no reosons are glaen Jor the declslon, the appellate Court will lnterfere lf tt ls satlsff.ed. the order ls wrong," (See: Kiwalabye v Uganda No. 143 of 2OOl(SC). (The emphasis is added) - 20 Counsel for the appellant faults the learned Justices for failing to properly re-evaluate the evidence regarding sentencing and thereby reaching an erroneous decision. He based his contention on the principle of law that an appellate court will only interfere with a sentence imposed by a trial judge if it is evident that the trial judge ignored to consider an important matter or circumstances which ought to be considered when passing sentence or if the sentence is manifestly harsh and excessive in view of the circumstances of the case. He relied on the case of Kiwalabye (supra) which was cited with approval in Rwabugande (supra).

<sup>5</sup> His main contention is that the trial Judge did not consider some of the mitigating factors presented in court while passing sentence, saying that this adversely prejudiced the appellant. Counsel gave the said mitigating factors as (1) family responsibilities and (2) reconciliation and re-integration into society. He also contended that the sentence of life imprisonment was arrived at by the trial judge without taking into account the three years the appellant had spent on remand, It was further contended for the appellant that the sentence did not take into account the circumstances of the case and similar precedents from this Court such as Abdulla Kamya &others v Uganda (supra). 10

The respondent's counsel opposed the appeal and contended that all the above factors were considered by both Courts. In her view, the appeal lacks merit and should be dismissed for the reasons she gave in her submissions which we have reproduced above.

20 Regarding the first allegation that the learned Justices of the Court of Appeal did not evaluate the evidence on record, we find that the Iearned Justices did evaluate the evidence presented before the trial judge and that they proceeded to reproduce the relevant excerpts from the proceedings in the trial Court in their judgment. After that zs they reached their own conclusion on this point. This is what the Court of Appeal Observed:

## "We note that the sentenclng Judge whlle sentenclng the appellant stated:

"The considerations in sentencing have been set out in The $\mathsf{S}$ Constitutional (Sentencing Guidelines for Courts of Judicature) Practice Directions. Legal Notice No. 8 of 2013.

The accused spent a total of 13 years in prison from the time of his first remand. The Constitution enjoins court to take this period into consideration when considering the sentence, and I have done so.

The aggravating factors include the killing of a woman who was defenseless. This was his mother in law, the mother of his wife of three children. Another person, a son of a neighbor was also killed. This one was already on the ground. He was 15 just shot at point blank range. The accused was the LC11 Chairperson. He was the commander of the Home Guards in his area. He was therefore a much respected person . He abused the trust of the people and Government and instead turned the gun, which was given to protect the people against 20 them.

The mitigating factors included the fact that the accused was a $1<sup>st</sup>$ offender. That he had spent 13 years in prison. Some of this period he had spent as a condemned prisoner. The accused no doubt suffered the death row syndrome...

I have looked at all the above. I have considered the law and the cases relevant hereto....

- The sentence must not only fit the crime, but also the criminal $\mathsf{S}$ with all factors considered. I have also considered all the above factors... I found that the aggravating factors tended to push the period upward. I was mindful of the mitigating factors including the youthful age of the accused and the - period he has spent in prison, and his attempt to reform, 10 shown by his taking leadership position in prison church ministry.

The taking of two lives in this case in the circumstances as shown deserve a deterrent sentence. I am satisfied that a

period of life imprisonment shall be appropriate in the 15 circumstances and I so order. The sentence shall run from the **date of conviction.**"(The emphasis above is added)

Given the circumstances of this case, the fact that Court did not directly mention family responsibilities and reconciliation on the list of mitigating factors did not in our view prejudice the appellant nor 20 did it cause a miscarriage of justice. This court stated in the case of Magala Ramathan v Uganda, Criminal Appeal No. $01/14$ (SC) that:

".....in arriving at a sentence, a judicial officer is obliged to balance the mitigating factors against the aggravating 25 factors. However, after identifying the mitigating and aggravating factors, a judge may come to the conclusion that in the circumstances of the particular case, the aggravating factors outweigh what would have been mitigating factors.

This principle was well laid out in the persuasive authority of $\mathsf{S}$ S vs. Vilakazi 2009 1 SACR 552 (SCA), where the Supreme Court of South Africa held that:

In cases of serious crime, the personal circumstances of the offender, by themselves, will necessarily recede into the

- background. Once it becomes clear that the crime is deserving 10 of a substantial period of imprisonment, the questions whether the accused is married or single, whether he has $2$ children or $3$ ... are largely immaterial to what that period should be. - Nevertheless the fact that the judicial officer was alive to 15 what the accused submitted in mitigation must be evident on record. It must therefore be stated by the judicial officer that the sentence was arrived at with both the mitigating and aggravating factors in mind. It is only then that the accused will be sure that the judge addressed his or her mind to the 20 cited mitigating factors but nevertheless came to the conclusion that the aggravating factors outweighed the *mitigating ones.*" (The underlining is added for emphasis).

The other contention was that the trial Judge did not take into account the period spent on remand. Again from the excerpts quoted by the Court of Appeal, it is clear that the learned trial judge in passing the sentence was alive to the constitutional requirement concerning the period spent on remand and clearly considered it among the mitigating factors. He made specific reference to the fact

<sup>5</sup> that the appellant had spent 13 years on remand and that he had suffered the death row syndrome.

However, as was held in Magezi Gad v Uganda (Supra) and followed in l(aserebanyi v Uganda No.1Ol 14(SC):

10 ult ls lmpossfble to deduct the perlod spent on remand ln the clrcumstance since ltfe tmprtsonment ls for the nat;.trat ltfe of the conulct. L{e lmprlsonment ls not amenable to Arttcle 23(8) of the Constlhttlon. Tle aboae Artlcle applles onlg uhere sentence ts for a tern of tmprlsonment l.e. a quantlfied perlod of tlme uthlch ls deductlble. Thls is not the cqse wtth llfe or <sup>15</sup> death sentences."

Furthermore, as rightly observed by the Court of Appeal, Iife imprisonment is a lawful sentence prescribed by the Penal Code Act. It is settled law that an appellant has a right of appeal only against the legality of the sentence, not its severity as stipulated by Section 5(3) of the Judicature Act. From the facts of this appeal, we find this to be a disguised appeal against severity of sentence, which is a procedure prohibited by section 5(3) of the Judicature Act.

In addition to the above, counsel for the appellant submitted that the sentence of life imprisonment against the appellant was not properly addressed considering the circumstances of the case and similar precedents such as Kamya Abdullah & Ors v Uganda (Supra). It is trite that each case is determined on its own merit and 25

<sup>5</sup> circumstances. In the Kamya Abdullah case, a definite term of imprisonment was considered appropriate in the circumstances. The accused were sentenced to 40 years and on appeal to the Court of Appeal their sentence was reduced to 30 years and subsequently to 18 years by the Supreme Court. In the instant case however, the appellant was sentenced to death and his sentence was reduced to life imprisonment which sentence was considered appropriate in the circumstances. The case of Kamya Abdullah (supra) is therefore distinguishable. 10

We have also addressed our minds to the mitigating factors presented by the appellant and weighed them against the aggravating factors. We agree with counsel for the respondent that the trial judge exercised his discretion and passed a lenient sentence, considering the circumstances and the gravity of the offences the appellant committed which resulted into the death of two people. 15 20

In conclusion we are satisfied that the Court of Appeai properly reevaluated the evidence before it reached its own decision. In exercising discretion, the trial Court considered the aggravating and mitigating factors and found the sentence of life imprisonment appropriate. The sentence is neither illegal nor irregular. We accordingly find no reason for this Court to interfere or depart from the findings and decision of the Court of Appeal. This appeal therefore lacks merit and is accordingly dismissed.

$12^{th}$ day of. $secember$ 2018 Dated this. $\mathsf{S}$ HON. JUSTICE ARACH-AMOKO 10 JUSTICE OF THE SUPREME COURT HON. JUSTICE MWANGUSYA 15 JUSTICE OF THE SUPREME COURT HON. JUSTICE OPIO-AWERI 20 JUSTICE OF THE SUPREME COURT 25 $\cdots\cdots\cdots\cdots$ HON. JUSTICE MUGAMBA

JUSTICE OF THE SUPREME COURT

HON. JUSTICE NSHIMYE

AG. JUSTICE OF THE SUPREME COURT