Lule v Uganda (Criminal Appeal No. 274 of 2015) [2022] UGCA 28 (11 February 2022)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. 274 OF 2015

#### LULE HAKIM:::::::::::::::::3:::::::::::::::::::::::::3::3:::::::::::::APPELLANT

#### VERSUS

# 10 UGANDA::::::::::::::::::::::::::r::::::::::::::::::::::::::::::::::::::::RESPONDENT

lAppeal from the decision of the High Court holden at Entebbe (The Honourable Ladg Justice Elizabeth Jane Aliuidza) dated the 24th daA of July 2075 in Ciminal Session Case No. 323 of 20121.

# 1s CORAM: HON. MR. JUSTICE RICHARD BUTEERA' DCJ HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. MR. JUSTICE CHEBORION BARISHAKI, JA

#### JUDGMENT OF THE COURT

20 This appeal is from the decision of the High Court of Uganda sitting at Entcbbe in High Court Criminal Session Case No. 323 of 2012, in which Elizabeth Jane Alividza, J convicted the Appellant of the offence of Aggravated robbery contrary to Seclions 285 and 286(2) of the Penal Code Act Cap 120 and sentenced him to 20 years imprisonment.

- 5 The facts as established by the prosecution before the trial court were that tite Appellant with others still at large on 3'd February 2012, at Entebbe in Wakiso District robbed Muhimbise Edson of cash shs. 600,000/=, Airtime worth shs. 1OO,0OO/= and at, before or after the said robbery used a deadly weapon to wit a gun on the said Muhimbise Edson. - With leave of court granted under Secfion 132(1) (b) of Trial on Indictments Act, the Appellant now appeals to the Court of Appeal of Uganda against sentence on the ground: 10

THAT the learned tial Judge ened in laut and fact uhen she sentenced the appellant to 20 Aears imprisonment.

#### Representatlon 15

At the hearing of this appeat, the Appellant was represented by Ms. Sarah Au-telo, learned Counsel on state brief while Ms. Acio Caroline Chief State Attorney appeared for the Respondent. The Appellant was in attendance via video link tc Luzira Prison by reason of the restrictions put in place due to COVID 19 pandemic.

Both parties sought, and were granted, leave to proceed, by way of written submissions.

## 5 Appellant's case

It was submitted for the Appellant that the sentence of 20 years imprisonment passed by the learned trial Judge was harsh and excessive and that the trial court departed from the conventional rule of uniformity in passing sentences when sentencing the Appellant. Counsel referred court to Abaasa Johnson v

- Uganda, Crlminal Appeal No. O33 of 2O1O, for the provision that it is nov'' settled that for the Court of Appeal, as a first appellate court, to interfere with the sentence imposed by the trial court which exercised its discretion, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law; or where the trial court failed to take into account an important mattcr or 10 - circumstance, or made an error in principle; or imposed a sentence which is harsh and manifestly excessive in the circumstances. 15

Counsel referred court to Ouke Sam v Uganda Crimlnal Appeal No.251 of 2OO2, this court confirmed a sentence of 9 years imposed on the appellant for aggravated robbery.

Counsel also referred to Adama Jino v Uganda Court of Appeal Criminal Appeal No. O5O of 2OO6, where the Appellant had been sentenced to life imprisonment for aggravated robbery and this court reduced it to l5 years. 20

Further in Kusemererwa end another v Uganda Court of Appeal Criminal Appel No. OO83 of 2O1O, the Appellants had been sentenced to 20 years for 5 aggravated robbery where shs. 2,000,000/= was stollen and not recovered and this court reduced the sentence to 13 years.

Counsel prayed that this appeal be allowed and court be pleased to invoke its powers under section 11 of the Judicature Act Cap 11 to determine the appropriate sentence of 10 years.

#### 10 Res ndent's re I

In reply, it was submitted for the respondent that the sentence of 20 years for aggravated robbery by use of gun is not manifestly harsh and very lenient for a crime whose maximum sentence is death and the same should be maintained.

15 Counsel submitted that this court has power to vary a sentence passed by the lower court by either reducing it or increasing it and that this can be done where court exercises its discretionary powers if it is evident that the trial court acted on a wrong principle or overlooked some material factor and also if the sentence is manifestly excessive.

20 Counsel contended that notwithstanding the consistency principle in sentencing, it is dangerous to use sentences of other convicts in different cases as a parameter to determine fairness in another case because the circumstances of each case may dictate the sentence. Further that the sentences referred to by counsel were handed out a long time ago and since they were so lenient, they lacked a deterrent effect.

- 5 It was further contended that in this case two guns were used and people were injured in the course of the robbery. Counsel referred court to Bogere Asiimwe Moses and Another v Uganda, Supreme Court No. O39 of 2O16, where the conviction and sentence of 20 years for an appellant aged 23 years, with family responsibility and where there was no violence at the time of the offence. - Further in Bakubye Muzamlru and Another v Uganda, Supreme Court Crlminal Appeal No, O56 of 2O15, the Supreme Court upheld a sentence of 30 years in a conviction for aggravated robbery. 10

According to Counsel, the learned trial judge considered both the mitigating and aggravating factors before coming to a conclusion that the sentence of 2O years was sufficient in the circumstances.

Counsel concluded that the sentence of 20 years' imprisonment be maintained.

#### Resolution

This is a first appeal and as such this Court is required under Rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions to re-appraise the evidence and make its inferences on issues of 1aw and fact while making allowance for the fact that we either saw nor heard the witnesses. See: Pandya v R [195fl E. A 336, Bogere Moses and another v Uganda, Supreme Court Criminal Appeal No. 1 of L997 and. Kifamunte v Uganda, Supreme Court Criminal Appeal No. 1O of 1997. 20

5 It is indeed now settled that for the Court of Appeal, as a first appellate court, to interfere with the sentence imposed by the trial court which exercised its discretion, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law; or where the trial court failed to take into account an important matter or circumstance, or made an error in principle; or imposed a sentence which is harsh and manifestly excessive in the circumstances. See: 10

Kamya Johnson [Iavamuno v Ugande, Supreme Court Crimlnal Appeal No. O16 of 2OOO (unreported); Kiwalabye Bernard v Uganda, Supreme Court Crlmlnal Appeal No. 143 of 2OO1 (unreportedf and Kalyango Achileo and Another v Uganda, Court ofAppeal Crlmlnal Appeal No. 637 of2O15.

Bearing in mind the above principles of law, we shall proceed to consider the singular ground of appeal on the alleged error by the learned trial Judge to sentence the Appellant to 20 years' imprisonment. 15

We have reviewed the Judgment of the trial Court and noted further that while sentencing the appellant, at page 57 of the Record of Appeal, the learned trial judge stated thus: 20

> "As already stated in this court before, aggrauated robbery is on the increase, there is need to send a message to the public that once conuicted for a robbery, gou tuill serue a deterrent sentence.

> Hotaeuer, Aou are a first olfender and the phgsical injuies inJlicted u)ere not so grave, therefore, I sentence Aou to 23 gears

5 imprisonment. I tuill reduce three gears as Uour remand peiod leauing a balance of 2O gears."

From the above, it is clear that the trial court considered the mitigating and aggravating factors before sentencing the Appellant to 20 years' imprisonment. We have considered both the mitigating and aggravating factors in this case.

We noted Counsel for the Appellant's submission that this court is bound to follow the principle of "parit/ and "consistenc/ while sentencing, while bearing in mind that the circumstances under which the offences are committed are not necessarily identical. 10

## Guldeline No. 6(cl of the (sentenclng Guidelines for Courts of Judlcaturef (Practicel Dlrectlona, 2O13 provides that: 15

" Euery court shall uhen sentencing an offender take into account the need for consistency uith appropiate sentencing leuels and other means of dealing with offenders in respect of similar offences committed in similar circttmstances. "

## In Ahartkundlra Yustlna v Uganda, Supreme Court Criminal Appeal No. O27 of 2O 15 this court held that: 20

"An appellate court must bear in mind that it is setting guidelines upon uhich louer courts shall follottt ttthile sentencing. According to the doctine of stare decicis, the decisions of appellate courts are

5 binding on the louter courts. Precedents and pinciples contained therein act as sentencing guidelines to the louer courts in cases involuing similar fqcts or offences since they prouide an indication on the appropriate sentence to be imposed."

We are in agreement with the above passage. It is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equalitv and without unjustifiable differentiation. 10

There is no hard and fast rule that an appellate Court cannot pass a similar sentence to the one passed by Court in an earlier decision. 15

In Rutablngwa James v. Uganda Court of Appeal Crlmlnal Appeal No. 57 of 2O11, confirmed an 18 year sentence for aggravated robbery. While confirming that sentence, this Court noted that the Appellant in that case had spent close to 5 years on remand. It also considered the injuries inflicted upon the victim.

- According to section 286 l2l of the Penal Code Act Cap 120, the maximum penalty for the offence of Aggravated Robbery is death. However, this punishment is by sentencing convention reserved for the most extreme circumstances of perpetration of such an offence such as where it has lethal or other extremely grave consequences. Examples of such circumstances relevant to this case are 20 - provided by Regulation 2O of The Constltution (Sentencing Guldellnes for 25

- 5 Courts of Judlcaturef (Practtcef Directlons, 2O13 to include; the use and nature of weapon used, the degree of meticulous pre-meditation or planning, and the gratuitous degradation of the victim like multiple incidents of harm or injury or sexual abuse. - In Ninsilma v. Uganda Crlm. Appeal No. 18O of 2O1O, the Court of appeal opined that these guidelines have to be applied taking into account past precedents of Court, decisions where the facts have a resemblance to the case under trial. 10

From the above, it is clear that deadly weapons were used but no life was lost. However, the trial court considered the mitigating and aggravating factors before

sentencing the Appellant to 20 years' imprisonment. The sentence passed was neither excessive nor harsh in the circumstances. Additiona-lly, by passing this sentence, the learned trial Judge followed the sentencing principle regarding uniformity of sentences in similar cases. 15

We find no merit in the appeal and it is accordingly dismissed, The appella,rt should continue to serve the sentence as passed by the trial Court.

We so order. p\ Dated at Kampala this 1l day of.... 2022. RICHARD BUTEERA DEPUTY CHIEF JUSTICE

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ELIZABETH MUSOKE

JUSTICE OF APPEAL

CHEBORION BARISHAKI

JUSTICE OF APPEAL

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