Gabiri v Uganda (Criminal Appeal 80 of 2018) [2024] UGSC 46 (12 December 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

# [CORAM: TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA, MADRAMA, BAMUGEMEREIRE; JJSC

## CRIMINAL APPEAL NO. 80 OF 2018

**BETWEEN**

#### GABIRI KASIMU::::::::::::::::::::::::::::::::::::

#### AND

## UGANDA:::::::::::::::::::::::::::::::::::

(An appeal from the judgment of the Court of Appeal (Kasule, Barishaki and Obura; JJA) dated 26th July, 2018 in Criminal Appeal No. 101 of 2014.)

$\mathsf{S}$

## **JUDGMENT OF THE COURT**

This is an appeal against an order of a consecutive sentence of 18 years' imprisonment imposed on the appellant by the High Court (Lameck Mukasa, J) for the offence of attempted murder $c/s$ 204 of the Penal Code Act on two separate counts. The Court of Appeal reduced the sentence to 13 years' imprisonment on each count but maintained the consecutive order. Hence this appeal to reverse the order into a concurrent sentence.

## **Background:**

$\mathbf{1}$

5 The brief facts are that the Appellant who is a brother- in-law to a one Bandirr. Semuga a traditional herbalist went to his home at Bugoge village, Kayunga District for treatment. After two months he had improved. His brother-in-law then gave him transport money to return back to his home but the appellant declined the money and refused to go back to home. 10

On 5,t March, 2Ol2 the wife to the appellant's brother-in-law a one Ntono Jenifer went to fetch water at borehole and left the appellant in the house with her four children. Having moved a few meters, she heard a fa-Il and upon glancing back, she saw one of her daughters a one Namuga lyrng down having been kicked by the appellant. She ran back and still found that the appellant had stabbed another daughter a one Nakakande Shanifa aged 8 years with a knife causing deep cut wounds on the chest and right arm. In an attempt to prevent further violence on her children, Jenifer grabbed the appellant while raising an alarm and advised her children to run away. The appellant unfortunately over powered her and stabbed another daughter a one Nakayiza Madina aged 13 years causing deep cut wounds on the back, face and left shoulder. Later he stabbed another daughter Nakito Sofra twice on the neck and run away. The three children were taken to hospital but unfortunately Sofia died.

The appellant was arrested and indicted on three counts. Count one of murder c/s 188 and 189 of the Penal Code Act, count two of attempted murder c/s 2O4 of the Penal Code Act and count three of attempted murder c/s 2O4 of the Penal Code Act. The Appellant was

- 5 convicted on the two counts of attempted murder of Nakayiziza Madina and Nakakande Shanifa respectively on his own plea of guilt. He was sentenced to 18 years'imprisonment on each count by the trial court. The sentences were to rr.n consecutively. The appellant is yet to stand trial on count one for murder. - Dissatisfied, the appellant appealed to the Court of Appeal on the basis that the sentences were excessive and that tl:e order of the sentences imposed should run concurrently. The Court of Appeal partially allowed tJre appeal and reduced the sentences to 13 years' imprisonment each but maintained that they were to be served consecutively. Aggrieved, the appellant appealed to this Court against the consecutive order. 10 15

# Grounds:

The appellant appealed on one ground namely that;

1. That the tearned Justices of Appeal erred ln law maintainlng that the said eentences be senred consecutively.

The appellant prayed that this Court allows the appeal and order that the sentences run concurrently.

# Representation:

At the hearing, the appellant was represented by Mr. Henry Kunya. Mr. Andrew Odiit, Principle Assistant DPP appeared for the respondent. Both parties filled written submissions. 25

# Submlsslone:

#### Appellant's submissions 5

Counsel for the appellant faulted the learned Justices for ordering the sentences to run consecutively which caused a miscarriage of justice and erred in law. Counsel submitted that the appellant pleaded guilty without wasting court's time, he was a first offender and had another count of murder hovering over his head. He argued that these were compelling mitigating factors which ought to have attracted the attention and sympathy of the Court to order that the sentences run concurrently.

Counsel further submitted that the Court of Appeal ignored the fact that the offences committed arose from the same transaction which was an important factor to consider. The learned justices therefore failed to exercise their mandate judiciously. Counsel therefore invited this court to allow the appeal and order that the sentences run concurrently. 15

#### Respondent's submlssions 20

Counsel for the respondent opposed the appeal and argued that the learned justices did not err in maintaining that the sentences run consecutively. Counsel submitted tJat the learned justices were rightly guided by the principle in S.2(2) of the Trial on Indictments Act. Counsel submitted that in imposing sentences, courts may consider whether separate incidents or transactions are involved. In such circumstances, consecutive sentences are preferred. Where no separate incidents or transactions are involved, then the court may direct sentences to run concurrently.

- 5 Counsel submitted that in the instant case, the incidents were separate and sentence was given in respect ofeach incident. Counsel submitted that this was the basis for the sentences to run consecutively. Counsel indicated that Nakayiza was stabbed with a knife at the back, below the left eye and the left shoulder. Nakakande was stabbed with a knife on the left side of her chest and on the wrist joint of her right hand. Therefore, it was rightly considered by the learned Justices of Appeal in maintaining that the two sentences be served consecutively. 10 - Counsel also submitted that the general rule was to impose consecutive sentences and that concurrent sentencing was the exception. Furthermore, that in ordering a consecutive sentence the total sentence must be proportionate to the offence and the circumstances of the case. Counsel argued that the appellant's sentences were reduced to 13 years'imprisonment. He contended that one count of attempted murder alone carries a maximum of life imprisonment. Therefore, the cumulative sentence of 26 years was proportionate. Counsel relied on the case of Magala Ramathan v Uganda No.146 of 2OO9 (CAl and No. Ol of 2Ol4 (SC) together with the Constitutlon(Sentenclng Guldellnes for Courts of Judicaturel (Practice) Directlons, 2O13 to support this submission. 15 20 25

Counsel invited this Court to find that the appeal had no merit and maintain the order that the sentences run consecutively.

# Consideration of Court

5 We have considered the submissions of counsel, examined the record of appeal and the law applicable,

It was argued by counsel for the appellant that the sentences of attempted murder imposed to the appellant for the different attempted murders committed by the appellant could run concurrenfly and not consecutively as ordered by the lower courts. Subsequently, the learned justices erred in law in maintaining that the sentences be served consecutively.

The circumstances under which an appellant court can interfere with a sentence imposed by the trial judge are well settled. It is trite law that sentencing pre-eminently remains a matter of discretion of the sentencing judge. The appellate court will not interfere with a sentence and its execution unless it is illegal, the judge acted upon wrong principles, overlooked some material factors and the sentence is manifestly so excessive to amount to an injustice. [See: Kyalimpa 15

Edward v Uganda. No. 1O of 1995(SC)1. 20

In Bashasha Sharif v Uganda, No. 82 of 2OI8(SC), this Court considered and set out the principles upon which an appellate court may interfere with a sentence imposed by the trial court. An appellate court will not interfere with the exercise of discretion in sentencing by a trial judge unless there has been a failure to exercise the discretion, or a failure to take into account a material consideration or the taking into account of immaterial considerations and an error in principle was made. Lastly it is not sufficient that members of the court could have exercised their discretion differenfly. 25

- 5 This implies that unless there is a substantial error or misdirection of the trial court, an appellate court cannot simply approach a sentencing matter as though it were the trial court itself, and then interfere with the sentence appropriately imposed by the sentencing court, and substitute it with a sentence it came up with merely based on its own preference and liking for a different sentence. Such an action would usurp or limit the sentencing discretion of the trial Court. Which additionally in our view would also extend to include the terms and conditions imposed by the sentencing court on how or when the sentence is to be served. 10 - ls The law not only confers discretion on the sentencing court to determine the quantum of sentence based on the judicial standards and principles but the court is also empowered to determine and direct the order in which the sentences will run. S.2(2) of the Trlal on Indictments Act (Cap 231 gives the discretion whether the zo sentences will run concurrently or consecutively. It reads:

"When a person is convicted at one trial of two or more dlstlnct offences, the High Court may sentence him or her for those offences to the several punishments prescribed for them which the Court is competent to impose, those punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the Court may direct, unless the court directs that the punishments shall run concurrently."

s In the case of Magala Ramathan v Uganda, No. I of 2O14(SC!, this Court interpreted the above law and settled the legal position that the general rule in cases of two or more distinct offences is to impose a consecutive sentence and a convict will only concurrently serve sentence if the court so directs that the punishment shall run lo concurrently.

Accordingly, there is no straight unitary rule or approach in the matter of exercise of such discretion by court only that it must be exercised judiciously having regard to the nature of the offences, facts and the attendant aggravating or mitigating circumstances. This court therefore emphasizes the need to give the reason for the award of the order given. I See: Magala Ramathan v Uganda (Supra)]

Furthermore, as a general rule, consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravit5r of the offences, Iooked at as a whole. [See: 4th Edition of

#### Halsbury's Laws of England, Vol. II page 299 paragraph 495] 20

It is therefore settled that in ordering a consecutive sentence, the total sentence must be proportionate to the offence and the circumstances surrounding each case. The accumulation of the sentences imposed is deemed as a single sentence as per Subsectlon 3 of the above section. Likewise, Section 8 of the Constltution (Sentencing Guidelines for Courts of Judicaturel (Practlcel Directlons, 2O13 guides that in calculating the totality of a sentence, the court shall first identiS the material part of the conduct giving rise to the commission of the offence and determine the total sentence 5 to be imposed. The tota-l sum of the cumulative sentence shall be proportionate to the culpability of the offender.

This implies therefore that the sentence meted out should be commensurate with the overall punishment. It must not be longer than is justified by the gravity of the crime and must not fall below the least that justice demands.

In directing tllat the sentence should run consecutively, the sentencing Judge considered the love and trrst given to the appellant by his in law and family together with other mitigating and aggravating factors. He particularly considered the weapon used and the separate injuries sustained by each victim.

Furthermore, under Sectlon 2O4 ol lhe Penal Code Act (Cap 128), the overall maximum punishment for attempted murder is life imprisonment. The cumulative sentence of 26 years given the circumstances of the case was proportionate in our view given that the value of each victim's life must be carefully weighed.

Counsel also argued that the appellant pleaded guilty and was a first time offender which were compelling mitigating factors to attract the attention and sympathy of the learned Justices to order that the sentences run concurrently.

The fact that the appellant pleaded guilty and was a lirst offender do not by themselves automatically guarantee a lesser sentence in light of the circumstances. We share the same view with the learned Justices that these factors do not diminish the inherent gravit5z of the 25

5 offence or eliminate the harm caused considering the brutal marrner the appellant carried out the offences on innocent victims.

We therefore find tJ at the trial Judge judicially exercised his discretion. It is not illegal to mete out a consecutive term of imprisonment in several distinct offences and we find no err on the Court of Appeal for maintaining the same.

The above notwithstanding, furthermore, counsel for the appellant strongly argued that the learned Justices ignored to consider that the offences committed arose from the same transaction which was an important factor in considering the sentences to run concurrently.

It is not uncommon that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed. This is not a fixed rule. To emphasize as earlier mentioned, there is no blue print or inflexible rule governing whether sentences should be structured as concurrent or consecutive. The overriding principle is that the overall sentence must be just and proportionate. Courts should consider the overall criminalit5r and the harm caused. 15 20

Whether a direction for concurrent running of a sentence ought to be issued in a given case would depend on the nature of the offence/offences committed, the facts and the circumstances of the 25 CaSe.

Similarly, the same transaction rule is dependent on the facts of the case. The fact that the two offences are connected simultaneously or

5 close together in time or location does not necessarily mean that they amount to a same transaction.

The phrase same transaction was dehned in the case of Republic vs- Saidi Nsabuga S/O Juma & Another [194U EACA and Nathan -vs- Republic [19651 EA 777 where the court stated as follows: -

ulf a serles oJ acts are so connected together bg proxlmltg of tlme, crlmlnalltg or crlmlnallntent, contlnultg of actlon and. purpose, or bg relatlon o:f co;use and effect as to constldtte one transactlott, then the offences constlhfied bg these sertes of acts qre commltted ln the course of the sg,me transactlon."

Therefore, in evaluating whether the multiple offenses constitute a single transaction, courts may take into account several factors. These factors include the timing of the offenses, their geographical closeness, the continuity of the actions performed, and the consistency of the underlying intent or design, arnong others.

The reason for applying the same transaction rule in sentencing would be to ensure that sentences are more proportional to the overall criminality, to avert cumulative sentencing for offenses that are closely interconnected, to reflect totality of the circumstances and harm caused, and to avoid excessive or disproportionate punishments for multiple offences.

In essence, the fundamental rational of the one transaction rule seems to suggest that consecutive sentences are unsuitable when the

5 combined offenses represent a singular violation of the same legally protected interest. While this principle is applicable in situations where multiple offenses stem from the same circumstances, the mere proximity of the offenses in time or location may not automatically indicate that they constitute a single transaction. [See: principles of

sentencing D. A. THOMAS, 2\* EDITION, HEINEMANN, [19791] 10

When offenses arise from a single transaction and impact one legal interest, the sentences may be served concurrently depending on the surrounding factors. Conversely, if the offenses occur during a single transaction but violate different legally protected interests, affecting two distinct individual lives, the sentences should be served consecutively.

In the case of Magala Ramathan (Supra) the accused frred bullets into a crowd of unarmed people. He was convicted of manslaughter on two counts and sentenced to serve 7 years consecutively. The single invasion was on different legally protected interests.

We therefore are of the view that even if multiple offenses are close in time and place, they may not be treated as a single transaction to justify concurrent sentencing particularly if the offences infringe upon different/distinct legally protected interests. Whether these offenses constitute a single transaction hinges on whether they signify a "single invasion of the same legally protected interest." The under\ring principle is that if there is one distinct infringement of a legally protected interest, even if it leads to several offenses, the emphasis and focus remains on the violation of that singular interest.

5 Consequently, concurrent sentences are generally adequate to reflect the severity of the offenses.

In the instant case, there were separate victims of attack and a clear distinction exists between the act of attempting to terminate the life of one victim and attempting to terminate the life of two victims. Each victim was deliberately injured with a knife occasioning separate harm and danger posed to each victim. Simply because the offences occurred in the course of a single prolonged episode so closely related in time and proximity as to require a signihcant degree of concurrency, does not warrant the conclusion that concurrent mnning should be preferred. In our view, we maintain that the two attacks were distinct and separate instances of considerable violence and each required distinct punishment, despite being so closely related in time and location. The sentences cannot be consolidated to amount to a single transaction. The value of each individual life must be carefully weighed. 10 15 20

The totality of the sentence reflects the gravit5r of the offence and the fact that the appellant persisted in his violence despite restrain. Nevertheless, it is crucial to ensure that the resultant effective sentence derived does not exceed the accused's criminality considered as a whole which was not the circumstance in this case.

It will rarely be appropriate to impose wholly concurrent sentences where there are more than one victim. The appellant should therefore not consider concurrent sentencing under the guise of same transaction, as a discount on two distinct individual lives.

s Concurrent sentencing should not be perceived as a reduction in penalties for multiple offenses; instead, it should reflect the overall severigr of the sentences imposed. Offenders should not misconstme concurrent sentencing as a lenient approach, akin to a buy one, get one free deal. The duration of the sentence assigned to the offender 10 must be commensurate with the gravity of the offense committed. Offenders should not perceive serving their sentences concurrently as a fortunate opportunity to escape the repercussions of their actions. Instead, concurrent sentencing should be understood as a reflection of the broader circumstances surrounding the criminal 1s behavior, rather than a way to lessen the penalties for multiple offenses.

This is further strengthened in a persuasive authority of R v MAII [2006] NSWCCA 381, Where the Supreme Court of wales emphasized that;

" h,tbllc c onfidence ln tlu ddmlnlstratton of fustlce requilzs the Coutt to daold ang suggestlon thqt uhat ls ln effect belng offered ls some klnd of a dlscount for multlple offendlng.' 20

This Appeal represents a unique instance where a consecutive sentence is more appropriate. Multiple attempted murders can be sentenced consecutively even if committed in one criminal enterprise by the same offender. In view of the overall circumstances, we therefore cannot fault the learned Justices and find no reason to interfere with the sentence. The Appellant's prayer that the sentences

do run concurrently is, therefore, untenable in the circumstances of $\mathsf{S}$ this case.

As a result, this appeal is dismissed and the Judgment of the Court of Appeal is upheld.

Dated at Kampala this.................................... 10

L'usalenure. Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT

Anchaise

Percy Night Tuhaise JUSTICE OF THE SUPREME COURT

Min BDF

Mike J. Chibita JUSTICE OF THE SUPREME COURT

Christopher Madrama JUSTICE OF THE SUPREME COURT

Bookree

Catherine Bamugemereire JUSTICE OF THE SUPREME COURT

The judgment is devlueved as directors to the Hor Justicians the How Justiens Babé 12/024