Kwizera v Uganda (Criminal Appeal 677 of 2015) [2024] UGCA 12 (15 January 2024)

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAT OF UGANDA AT MBARARA

(Corom: Buteero DCJ, Goshiroboke, & Kihiko, JJA)

#### CRIMINAt APPEAL NO. 677 OF 2O'I5

KWIZERA GODFREY APPEI-LANT

#### VERSUS

## UGANDA RESPONDENT

(Appeolfromfhe decision of theHighCourlof Ugondo heldof Kobole presided over by Hon. Mr. Jusfice Micheol Elubu delivered on 25th June, 2014 in Criminol Session Cose No. 47 of 2014)

### JUDGMENT OF COURT

### BACKGROUND

The focis os ccn be oscertoined from the record ore thol the oppellont ond 2 oihers met Poscol Bizimono ond his step brother Niyibizi Emmonuel on 25th November, 20'l I oi 9:00 pm in Kisoro neor Kisoro moin morket on the Kisoro-Kobole highwoy. The two were eoch corrying o sock of grosshoppers.

Poscol Bizimono greeted the oppellont but lhe oppellont did not respond. The oppellont ordered them to put down the socks of grosshoppers. They defied the order. The 2nd ond 3'd convicts who did not oppeol ogoinst their conviction ond senience emerged from culverts ond surrounded Poscol Bizimono ond Niyibizi Emmonuel.

ln the process, the oppellont stobbed Poscol neor lhe eye. Emmonuel monoged to escope unhurt while moking on olorm. The oppellont logether with the 2no ond 3,d convicts disoppeored with the grosshoppers. Emmonuel monoged to get help ond come bock on o motorcycle ond found Poscol lying in o pool of blood. He took Poscol

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to Kisoro Hospitol for medicol ollention where he wos odmitted for treotmenl of the injury.

The oppellont wos indicted ond convicted of ihe offence of oggrovoted robbery conirory lo sections 285 ond 286 (2) of the Penol Code Act Cop 120. He wos sentenced io l5 yeors' imprisonment.

### Ground of Appeol

The lriol judge erred in low ond focl when he imposed lhe sentence of 15 yeors' imprisonmenl lo lhe oppellonl which wos horsh ond monifeslly excessive considering lhe circumslonces of lhe cose.

#### REPRESENTATION

At the heoring, the oppellont wos represented by Ms. Mocleon Kemigisho on stote brief. Mr. Semolembo Simon Peter Assistont DPP represented the respondent. Counsel for the porties filed writien submissions. They opplied to Court ond were gronted leove to odopt ond rely on them os their finol submissions.

#### APPETLANT'S SUBMISSIONS

Counsel for the oppellont opplied to Couri under Rule 43(3)(o) of the Judicoture (Court of Appeol) Rules ond Seclion 132(l)(b) ond (2) of the Triol on lndictmenls Act (Cop 23) io oppeol ogoinsi sentence only. The opplicotion wos gronied.

Counsel for the oppellont submitted thot the triol Courl did not toke into occount the miiigoting foclors odvonced by the oppellont ond his counsel which would hove oltrocted o less thon 15 yeors' imprisonment.

The mitigating factors advanced are that he was a married man with two children. That the wife left after the appellant's arrest. The appellant prayed for a lenient sentence to allow him go back and look after his children.

Counsel submitted that the subject matter that is alleged to have been robbed was valued at UGX 80,000/= and that the time the appellant has spent in custody is sufficient punishment. That he had learnt a lesson and he should be set free.

The case of State Vs. Mukwanyane [1995] S. A 391 was cited where court noted that:

"Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond reasonable doubt the existence of aggravating factors, and to negative beyond reasonable doubt the presence of any mitigating factors relied on by the accused. Due regard must be paid to the personal circumstances and subjective factors which might have influenced the accused person's conduct, and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution. In this process "[e]very relevant consideration should receive the most scrupulous care and reasoned attention."

Counsel for the appellant submitted that an appellate Court does not normally interfere with the discretion of the sentencing Judge unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge was manifestly excessive to occasion an injustice.

Counsel prayed that Court invokes its jurisdiction under Section 11 of the Judicature Act and imposes an appropriate sentence. Counsel proposed a sentence of 10 years' imprisonment as being sufficient

BR Crosso M.

toking into occount the mitigoting foctors ond the time the oppellont hod spent on remond be deducled from the l0 yeors.

## RESPONDENT'S SUBMISSIONS

Counsel for the respondenl submitted thot the senlence of 15 yeors' imprisonment meted oul to the oppellont wos neither horsh nor monifestly excessive in the circumstonces.

Counsel submitted thot while sentencing the oppellont, the triol Judge considered ihot the oppellont wcs o first offender, hod spent two ond o holf yeors on remond ond the volue of the subject motter thot wos involved os mitigoting foctors in fovour of the oppellont.

Counsel submitied thot the triol Judge considered thot oggrovoled robbery corries o moximum sentence of deoth ond thot the sentencing guidelines give o storling point of 35 yeors. Thot the triol Judge olso considered lhot the oppelloni slobbed the victim on ihe eye ond spent o long time in hospitol recovering from the injury before concluding thot l5 yeors' imprisonment wos oppropriote.

Counsel for the respondent cited Mujuni Fronk Vs Ugondo (Criminol Appeol No. 203 of 2016) where o sentence of 15 yeors' imprisonment for oggrovoied robbery of UGX 330,000/= wos mointoined by this Court.

Tito Buhingiro Vs Ugondo (SCCTA No. 8 of 2014) wos olso ciied where o sentence of imprisonment of 19 yeors for oggrovoted robbery imposed by ihe triol Court wos mointoined by lhe Courl of Appeol ond Supreme Court.

Counsel referred to Abooso Johnson & Anor Vs Ugondo (Court of AppeolCriminolAppeol No. 33 of 2010) where o sentence of 15 yeors' imprisonment for oggrovoted robbery on eoch of the lhree counis of oggrovoted robbery lhe oppellonts hod been convicted of were


The cose of Kiwolobye Vs. Ugondo (Supreme Courl Criminol Appeol No. 143 of 2001) wos olso cited for the principle thot it ls now setlled low thol on oppellote Court is not to interfere with sentence imposed by o triol Court which hos exercised its discretion on sentences unless ihe exercise of lhe discretion is such thot the triol Court ignores to consider on importont motter or circumstonces which ought to be considered when possing the sentence.

# RESOLUTION BY COURT

We hove siudied the record of the lower Court. We hove olso considered the submissions of counsel for either porty, the outhorilies cited ond the low opplicoble to this oppeol. The oppeol of hond is ogoinst sentence only.

The overriding principle for considerotion by oppellole Courts in Interfering with sentences imposed by the triol Courl wos espoused in Kiwolobye Benord Vs Ugondo (Criminol Appeol No. 143 Of 2001) os follows: -

'The oppellofe Courl is nof fo inlertere with lhe senfence imposed by o lrial Court which hos exercised ds discrefion on senlence unless lhe exercise of lhe discrelion is such lhol if resulls in lhe senfence imposed to be monifesfly excessiye or so low os lo omounl lo o miscorrioge of juslice or where o triol Covrt ignores fo consider an imporlont matler or circumslonces which ought fo be considered when possing the senlence or where fhe senfence imposed is wrong in principle."

ln Nolurindo Amon Vs. Ugondo (Criminol Appeol No. 95 of 2010), the Court held:

'As on oppellole Court, we con only intefiere with o senlence imposed by a lrial Courl in very limiled circumslonces. We con do so only where fhe senlence is eilher illegol, or founded Upon a wrong principle of lhe low, or the Court hos foiled lo consider o materiol foclor."

According to **Section 286 (2)** of the Penal Code Act, the maximum punishment for the offence of aggravated robbery is death.

According to the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2012 in the third schedule, Part 1, Item 4, the starting point for sentences in aggravated robbery cases is 35 years' imprisonment and the sentencing range runs from 30 years' imprisonment up to death.

Counsel for the appellant submitted that the trial Judge did not consider the mitigating factors raised by the appellant before sentencing him as he did.

We have perused the record of the High Court where the appellant was sentenced. The trial Judge took into account the appellant's mitigating factors to wit; being a first offender and remorsefulness.

He also took into account the aggravating factors such as the injury inflicted upon the victim which was near the eye.

Before sentencing the appellant, the learned trial Judge noted;

"The convicts shall all be treated as first offenders as there is no evidence of antecedents.................................... stabbed above the eye and lost consciousness. He had to spend a considerable length of time in hospital recovering. For those reasons and reducing the sentences by the two and a half years already spent in prison, I find the following to be appropriate;

1. Kwizera Godffrey: Shall serve 15 years in prison for the role he played in stabbing Pw 1.

2. Tumushime Yoweri: Shall serve 12 years in prison.

3. Kamurasi Amos: Shall serve 12 years in prison."

Bl crano $\mathcal{M}$ .

Porogroph 3l of the Constitulion (Sentencing Guidelines for Courts of Judicoture) (Proctice) Directions, 2012, provides the foctors to consider lhot moy oggrovote o senlence for robbery. ll slotes: -

"ln considering imposing o sentence for robbery, the courl sholl be guided by the following oggrovoting foctors -

(o) Degree of injury or horm;

(b) The port of the victim's body where horm or injury wos occosioned

(d) Use ond noture of the weopon

(g) Whether the offender wos pori of o group or gong ond lhe role of the offender in the group, gong or commission of the crime;"

We hove perused the triol Court record ond find thot the leorned triol Judge properly oddressed his mind to lhe relevont low ond circumstonces of the offence before sentencing the oppellont. He took inlo occount oll the necessory considerotions before possing sentence. We hove considered the outhorilies ciled by both counsel for the oppellont ond the respondent. Toking inlo occount Porogroph 31 (S) of the Constilution (Sentencing Guidelines for Courts of Judicolure) (Proctice) Directions, 2012, of oll the three otlockers, it wos the oppellont who stobbed the victim of the robbery. He is the one who mode the initiol demond for the victim ond his colleogue's grosshoppers. This mokes his role in the crime more serious. Ii is for the oppellonis' role in the commission of lhe crime lhot he wos sentenced to 15 yeors' imprisonment while Tumushime Yoweri ond Komurosi Amos, the 2no ond 3,o convicls were sentenced to 12 yeors' imprisonment eoch.

It is our finding thot the senlence meted onto the oppellont wos neither horsh or monifestly excessive. We find no reoson to inlerfere with the sentence the triol Judge possed.

This oppeol locks merit ond is dismissed.

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DATED AT Mbarara this.................................... Jonney ..2024.

RICHARD BUTEERA **DEPUTY CHIEF JUSTICE**

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CHRISTOPHER GASHIRABAKE **JUSTICE OF APPEAL**

OSCAR JOHN KIHIKA JUSTICE OF APPEAL