Kaparaga and Another v Uganda (Criminal Appeal 538 of 2016) [2023] UGCA 212 (16 August 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

(Coram: Richard Buteera DCJ, Catherine Bamugemereire JA, & Eva K. Luswata JA)

CRIMINAL APPEAL NO. 0538 OF 2016

## **BETWEEN**

## 1. KAPARAGA PAUL

**2. NANKWATSA JULIUS:::::::::::::::::::::::::::::::::::** 15

### AND

UGANDA:::::::::::::::::::::::::::::::::::

## [Appeal from the Judgment of the High Court sitting at Masaka in 20 Criminal Session No. 0149 of 2016 by Hon. Justice Dr. Flavian Zeija delivered on 22nd December, 2016]

## **JUDGMENT OF THE COURT**

#### **Introduction** 25

1] The appellants were indicted with two counts of aggravated robbery contrary to 285 and 286 of the Penal Code Act, and murder contrary to Section 188 and 189 of the Penal Code Act. It was stated in the indictment that Kaparaga Paul, Nankwatsa Julius and Mwanje Alex during the night of 4th - 5th January 2013 at Kyambogo village in Sembabule District robbed Frank

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5 Ttrmusiime of his motorcycle Reg. No. UDX 826D Bajaja Boxer valued at 3,600,000/= and at or immediately before the said robbery caused the death of Frank T\rmusiime, and that Kaparaga Paul, Nankwatsa Julius and Mwanje Alex during the night of 4th - sth January 2O 13 at Kyambogo Village in Sembabule District murdered Frank T\rmusiime.

2] The facts conhrmed by the trial Judge in his judgment are that on the 4th day of January 2073, Frank T\rmusiime the deceased rode his motorcycle to Kiganda village in Mubende district where he dropped a one Mwesig,e George from Nakatobo village. On his way back, his motorcycle developed a mechanical problem at Kikuumadungu village. He pushed it up to Lutunku Trading Centre to trace for a mechanic. At Lutunku Trading Centre, he met the 2"d appellant, a tribe's mate, who promised him accommodation at his place since it was getting late. The deceased, both appellants and Mwanje were later seen in the bar of a one Jumba at around 1l:OOpm. They all left at midnight on the deceased's motorcycle ridden by the first appellant. On the 5th day of January 2013 at around 6:30 am, the deceased's body was found dumped near Kyambogo Primary School naked and the motorcycle was missing. This was reported to the LC Chairman who in turn reported to police. Police investigations revealed that the accused had murdered the deceased. A post mortem report revealed that the body had bruises around the neck and the cause of death was confirmed to be strangulation. The appellants who were subjected to medical examination, were later charged with

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- murder. They were convicted after a full hearing and sentenced to life in prison - 3 The appellants being aggrieved with the decision of the High Court lodged an appeal to this Court on one ground.

# That the learned trial Judge erred in law and fact when he sentenced the appellants to imprisonment for life, a sentence which is manifestly harsh and excessive.

#### **Representation** 15

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4] Both appellants were present at the hearing of their appeal where they were represented by Mr. Wasswa Joseph. The respondent was represented by Ms. Caroline Marion Acio a Chief State Attorney, being assisted by Judith Nyamwiza a State Attorney. At the same hearing, Mr. Wasswa prayed and Court granted him leave to appeal against sentence only under Section $132(1)$ (b) of the Trial on Indictment Act, and Rule 43 (3) (a) of the Rules of this Court. Both counsel were allowed to adopt their written submissions as their legal arguments in respect of this appeal.

## Ground one

## Appellant's submissions

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5 Mr. Wasswa submitted by first drawing our attention to the duty 30 of this Court on appeal as provided under Rule 30 $(1)(a)$ of the Judicature (Court of Appeal Rules) Directions SI. 13-10. He emphasized that our duty to re-appraise the evidence extends to

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- 5 first appeals against sentence such as the case before us. Mr. Wasswa then referred to the sentencing order of the trial Judge. He in particular criticized parts of it that he considered irregular because the trial Judge did not allude to the principles of "consistency ," "parity" or "uniformity" of sentences that the courts of law are enjoined to consider pursuant to Principle No. 6 (c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 (hereinafter the Sentencing Guidelines). - 6] Mr. Wasswa in addition submitted that sentencing and its appropriateness is a matter for the discretion of the sentencing court. Citing the decision of Kasisi Dominic versus Uganda, CACA No. 5O7 of 2OL4 that followed the decision in Rwabugande Moses versus Uganda, SCCA NO. 25 of 2OL4, he argued that this Court as a first appellate court, may interfere with the sentence imposed by the trial court which exercised its discretion only, if is shown that the sentence is illegal, or founded upon a wrong principle of the law. Likewise, that it can interfere where the trial court lailed to take into account an important matter or circumstance or imposed a sentence which is harsh and manifestly excessive in the circumstances. 20 25 - 7] Counsel submitted further that the sentence of life imprisonment imposed upon the appellants was harsh and excessive. He referred to the case ofSsekawoya Blazio versus Uganda, SCCA No. 24 of 2OL4 where it was observed that the death penalty though constitutional was not mandatory but discretionary. That, that

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would make the sentence of life imprisonment the next most severe sentence and probably the most effective alternative to death sentence.

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- 8] While admitting that no two crimes are identical, Mr. Wasswa buttressed his submissions on the consistency principle by referring to the decision in Kasisi Dominic Versus Uganda (supra) cited with approval in the case of **Mbuga Versus Uganda**, **SCCA No.4 of 2011.** In that case, the sentencing Judge was faulted for failure to consider the principle of consistency when resentencing the appellants which entitled this Court to interfere with the sentence of life imprisonment and substituted it with imprisonment of 23 years and 11 months. For that reason, counsel invited this Court to consider the sentence of life imprisonment handed to the appellants as harsh and excessive. He invited us to invoke our powers under Section 11 of the Judicature Act to set it aside. He suggested a sentence of 25 years as appropriate in the circumstances. - 9] Mr. Wasswa cited a few cases that have been applied by this Court and the Supreme Court as a guide to what he considered to be an appropriate sentence. He referred, for example, to the case of **Kasisi Dominic Versus Uganda, (supra)** where an appellant who had received a life sentence for the offence of murder, had his sentence reduced by this Court to 23 years and 1month imprisonment. Also that of **Onyango Bosco versus Uganda** (2017) **UGCA 98**, where a sentence of 45 years' imprisonment for murder and aggravated robbery was set aside and substituted for

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- one of 20 years' imprisonment for the offence of murder and 18 years' imprisonment lor the offence of aggravated robbery, to run concurrently. In addition, that of Turyasingura Joshua and Natuhwera Naboth, CACA No. 147 of2O13 and No. 27 of2OL5. In the latter case the sentence of 50 years' imprisonment and life imprisonment lor murder and aggravated robbery respectively, were set aside, and T\rryasingura was instead sentenced to I 5 years' imprisonment while his co accused was deemed as wrongiy convicted and set free. - 1O] In conclusion, counsel invite this Honourable Court to allow this appeal, set aside the sentence and impose a lesser sentence to the appellants. 15

## Respondent's Submissions

11] Ms. Marion Acio and Ms. Judith Nyamwiza opposed the appeal. They relied on several authorities for example that of Bogere Moses & Another versus Uganda, SCCA No. of 1977, cited with approval, in Kifamunte Henry Versus Uganda Criminal Appeal No.1 of L997, to agree with what was presented as powers of this Court on appeal. Also citing the decision in Livingstone Kakooza versus Uganda SCCA No. 17 of 1993, they agreed to what their learned colleague presented as principles to be followed when an appellate court decides to alter a sentence. Relying on the provisions ol Section 34 of the Criminal Procedure Act, they added that this Court also has powers to vary a sentence by reducing or increasing it. W

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- 121 However, respondent's counsel disagreed with the contention that the sentence imposed was harsh or manifestly excessive. In that regard, they argued that an appropriate sentence is a matter for the discretion ofthe sentencing court and that each case presents its own facts and the circumstances justify the sentence given. In their view, the offence of murder when committed simultaneously with aggravated robbery should be considered as a serious matter for each offence attracts a maximum penalty of death. Counsel continued that the punishment of life imprisonment is legal and considered lenient in cases where the maximum penalty should have been imposed. - 13] To emphasize the point that the sentence was not excessive, respondent's counsel recounted the prosecution case as admitted by the Court. Following that narration, they concluded that the post-mortem report demonstrated that the deceased was subjected to massive torture before he died. That the deceased could not be decently buried by his family as he was buried along a road. Counsel added that evidence was adduced to show that the appellants were known and feared thieves in the village which is an indication that they were at the material time, a threat to the community. Both counsel argued further that no reasons were advanced for the appellants' actions and that when given a chance to mitigate their sentence, the appellants simply stated that Court should be lenient and consider the period they spent on remand. The trial Judge noted in addition that they were not remorseful.

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- 5 141 In order to demonstrate that the sentence of iife imprisonment was appropriate, counsel referred to a few cases where this Court and the Supreme court upheld the sentence of life imprisonment for a single capital case of murder. For example, that of Kaddu Kavulu Lawrence versus Uganda, SCCA No. 72 of 2O18, where an appellant who inflicted fatal injuries on the deceased using a panga received a death sentence. This Court after considering the mitigating factors, reduced the sentence to life imprisonment which was conhrmed by the Supreme Court. Also that of Opendi Michael & Another versus Uganda, CACA No. 211 of 2011, where the appellants who murdered a deceased during an attack on his family on a public road received a sentence of life imprisonment, which was upheld by this Court with respect to the first appellant. 10 15 - 151In conclusion, respondent's counsel submitted that the circumstances of this case are compelling to justify the sentence of life imprisonment and that there is no justification to interfere with the sentencing discretion of the trial Court. Counsel then prayed for this Court to be pleased to dismiss this appeal, uphold and conhrm the sentence of life imprisonment against the appellants. 20 25

# Decision of Court

16] The issue for this court's determination is whether the trial Judge erred in law and fact when he sentenced the appellants to imprisonment for life, a sentence which the appellants consider as 30

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^rLu being manifestly harsh and excessive. We have in that regard, carefully studied the court record, considered the submissions for either counsel, and the law and authorities cited therein. We are mindful that this appeal is governed by the provisions of **Rule** $30(1)$ (a) of the which provides as follows:

- (1) On any appeal from the decision of the High Court acting in *the exercise of its original jurisdiction, the court may*a. Reappraise the evidence and draw inferences of fact; - 17] We are accordingly required to carefully and critically review the record of the High Court and re-appraise the evidence in order to make inferences of fact but without disregarding the decision of the High Court. See for example, Kifamunte Henry versus Uganda, Supreme Court Criminal Appeal No. 10 of 1997. Alive to the above-stated duty, we shall proceed to resolve the one ground of appeal as below;

18] We are aware that in the exercise of its discretion, the sentencing court is guided by established principles in order to achieve the ends of justice. The agreed legal position as stated by both counsel is that an appellate court should not interfere with a sentence imposed by the trial court which has exercised its discretion, unless it is shown that the sentence is illegal. Also, we may interfere only if it is evident that in the exercise of its discretion, the trial court ignored to consider an important matter or circumstances which ought to have been considered before

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- passing sentcnce or, where the sentence is manifestly excessive or too low as to amount to an injustice. See Livingstone Kakooza versus Uganda, SC Criminal Appeal No. 17 of 1993. - 19] It is the appellant's case that the learned trial Judge sentenced them to a manifestly harsh and excessive sentence of life imprisonment. Mr. Wasswa Joseph contended that the trial Judge did not consider the consistency principle before sentencing the appellants. Counsel went ahead and referred to similarly decided cases to guide this Court when considering the merit of the appeal. Conversely, respondent's counsel Ms. Marion Acio and Ms. Judith Nyamwiza contended that the sentence that was meted out is consistent with several decided cases, and is appropriate given the circumstances of the case. 10 15 - 20] Mr. Wasswa in particular objected to parts of the sentencing order of the trial Judge which he argued were made contrary to the consistency principle. We agree with counsel's observation that aithough crimes are not identical or committed under exactly the same circumstances, there is always the need for a sentencing court to maintain consistency or uniformity when executing its sentencing discretion. 20 25 - 211 The principle of consistency is well elucidated in Guideline 6 (c) of the Sentencing Guidelines which provides that:

"Euery court shall uthen sentencing an offender take into account the need for consistence with appropiate

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5 sentencing leuels and other means of dealing with offenders in respect of similar offences committed in simil ar circum stance s. "

> It was lor the same reason that the Supreme Court in its decision of Aharikundira Yustina versus Uganda, Criminal Appeal No. 27 of 2OLS advised that:

> > "it is the Court while dealing with appeals regarding sentencing to ensure consistency u-tith cases that haue similar facts. Consistency is a uital pinciple of a sentencing regime. It is deeplg rooted in the rule of laut and requires that laws be applied ulith equalitg and utithout unju stifiable differentiation".

221 ln order to conhrm the merit of the appellants' complaint on that point, we shall reproduce the sentencing order. At pages 21 and 22 of the record the trial Judge stated as follows: 20

> "The conuicts killed a Aoung man. They killed him in an aggressiue manner bg uthipping and stranglirug him. Euidence was brought that they tuere tenori.zing the uillage. Theg are not remorseful. There is need to keep them out of that a societg. I sentence them to life in pison on each ofthe counts of Robbery and murder. I so order. Right of appeal is explained."

Signed, Hon. Justice Flauian Zeija Judge.

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## 22/12/2016

- 23] It is clear from the ruling that the Judge decided on the sentence without carrying out a cross reference with previously decided cases with respect to the same offence and facts. We appreciate that there is no legal requirement that the Judge must specifically cite previous decisions from which comparison is made, but it is good practice to do so. This Court has previously decided that the sentencing order should on the face of it demonstrate that the sentencing court took cognizance and applied the consistency principle. See for example Nshaija Abasi alias Rukyeikaire versus Uganda, CACA No. 142 of 2011. However, we are not persuaded that by failing to do so, the trial Judge decided a sentence that resulted into a miscarriage of justice. The following are our reasons. - 24] The appellants were each charged with two counts of aggravated 20 robbery, both serious offences that can attract the maximum sentence of death. Paragraph 19 of the Sentencing Guidelines directs us to the sentencing range specified in Part I of the Third schedule. In that schedule, the sentencing range for the charge of 25 murder after considering both the aggravating and mitigating factors is 30 years to death as the maximum sentence. Further according to **Paragraph 18(c)(iv) and (d)** of the same guidelines, a sentencing court may consider imposing the death sentence if the death of a victim was caused by offenders acting as conspirators during a robbery. Previous decisions on the same 30 BŁ offences will also be useful.

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- 10 Criminal Appeal No. 43 of 1999, the appellant was convicted of murder of his nephew, the attempted murder of another nephew, - and aggravated robbery. He was sentenced to death for the convictions of murder and aggravated robbery and seven years for attempted murder. The latter two sentences were suspended. On appeal, the Supreme Court did not set aside the convictions and sentences. In Bakubye & Another vs Uganda, [2018] UGSC 5, the appellant was convicted of murder and aggravated robbery and sentenced to 40 years for count 1, and 3O years for count 2 to run consecutively. Both this Court and the Supreme Court decline to agree that the sentences were harsh or excessive and confirmed them. Yet in Atugonza Tony and 4 Others versus Uganda, SCCA No. 11 of2O11. The Supreme Court confirmed a sentence of life imprisonment for appellants who had forceful sexual intercourse and later murdered their victim. Relatedly, the authorities cited by respondent's counsel in their submissions indicate that in a previous decision, this Court upheld a sentence of life imprisonment imposed upon offenders that in one transaction committed the double offences of aggravated robbery and murder.

25] In Christopher Byagorrza versus Uganda, Supreme Court

26] The facts of this case are that the appellants who held out as good people willing to offer the deceased a place of abode, instead hacked a scheme to rob him of his motorcycle and then kill him. There was strong evidence that they murdered him in a gruesome manner. The evidence of the postmortem report is that the

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- 5 deceased's body had bruises on the chest, neck and strokes on the shoulder, and that he died as a result of asphla<iation or strangulation. This case was in addition aggravated by the fact that the appellants were well known and feared thieves in the village, which means that they were a threat to the community. In addition, the Judge noted that both appellants showed no remorse during their trial. Their victim a young man, who was intent on earning a decent living was deprived of life in a cruel manner. - 271 The above fact must have impacted upon the Judge's decision to ignore their prayers for leniency. In his discretion, he considered it fit to impose a sentence of life imprisonment. We consider that he exercised that discretion judiciously. He spared the appellants of the death sentence, and we consider his decision well within range of the Sentencing Guidelines and previously decided cases of a similar nature. For those reasons, we find that in the circumstances presenting, the sentence of life imprisonment that was meted out to the appellants was neither harsh nor manifestly excessive. We therefore hnd no basis for interfering with the decision of the trial Court. We accordingly confrrm the sentence ol life imprisonment. 15 20 25 - 28] In conclusion, this appeal has failed and is dismissed.

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5 Dated this tb "t ........9..!............, 2023.

10 RICHARD BUTEERA, DCJ JUSTICE OF APPEAL 15 20 25 EVA K, TA JUS OF APPEAL CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL