Matovu v Uganda (Criminal Appeal No. 270 of 2015) [2022] UGCA 29 (11 February 2022)

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. 270 OF 2015

# MATOVU ASHIRAF:::::::::::::::::::::::::::::::::::: **VERSUS**

$UGANDA \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \$ [Appeal from the decision of the High Court holden at Entebbe (The Honourable Lady Justice Elizabeth Jane Alividza) dated the 17<sup>th</sup> day of July 2015 in Criminal Session Case No. 084 of 2013).

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

### JUDGMENT OF THE COURT

This appeal is from the decision of the High Court of Uganda sitting at Entebbe in High Court Criminal Session Case No. 084 of 2013, in which Elizabeth Jane Alividza, J convicted the Appellant of the offence of Aggravated Robbery contrary to Section 285 and 286(2) of the Penal Code Act Cap 120 and sentenced him to 26 years imprisonment.

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lished by the prosecution before the trial court were that on The facts.012, the Appellant and others still at large at Nabbingo Tega Zone $the$ *istrict, while armed with a gun and a knife robbed Namara Annet, of* $5$ $0.000$ /= and two mobile phones both valued at shs. 250,000/=.

Appellant now appeals to the Court of Appeal of Uganda on grounds couched in the Amended Memorandum of Appeal dated 2<sup>nd</sup> September 2021 as follows:

- 1. THAT the learned trial Judge erred in law and fact when she convicted the Appellant relying on prosecution evidence full of contradictions and inconsistencies. - 2. THAT the learned trial Judge erred in law and fact when she passed $\alpha$ 15 sentence of 26 years imprisonment which is illegal, harsh and excessive thereby occasioning a miscarriage of justice.

#### **Representation**

At the hearing of this appeal the Appellant was represented by Mr. Richard Kumbuga, learned Counsel on state brief while Ms. Emily Mutuuzo Ssendawula 20 Senior State Attorney represented the Respondent. The Appellant was in attendance via video link to 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.

#### Appellant's case 25

Page $|2$


<sup>5</sup> On the 1"t glound, Counsel for the Appellant submitted that the ingredient of participation of the Appellant in the commission of the aileged offence was not made out against the Appellant and it was erroneous for the learned triai Judge to decide otherwise hence occasioning a miscarriage ofjustice'

According to Counsel, the evidence of PWl Namara Annet and PW2 Mugisha Kennedy which was relied upon to prove that they had effectively identified the Appellant on the fateful night was marred with inconsistencies al4 contradictions and as such these witnesses were deliberately untruthful and as such the trial Judge wrongly relied on their testimonies' 10

counsel contended that Pw1 had testified that on the fateful night she returned home, parked her car and asked PW2 to wash it' Whilst moving into the house' she saw two men holding PW2 whom they had tied having two guns and a kniie' The said men locked PW2 in the bathroom and ordered her to give them money and other valuables which she complied with. She stated that she managed to identify the Appellant as one of the robbers since he had previously worked at her place as a casual laborer. 15 20

Counsel further contended that contrary to the testimony of PW 1' PW2 stated that whilst washing PWl's car, two people armed with guns came toward nim' heinquiredaStowhotheywerebuttheythreatenedtoshoothim. Theytiedhim up, led him to the house where he knocked and when the occupants opened' he wasforcefullypushedintothebathroomandtiedup. Healsotestifiedthathe

I

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<sup>5</sup> knew the Appellant since he had been working at the home for about three months prior and that with the aid of light, he managed to identify his feet'

Counselcontendedthatthelearnedtrialjudgeplacedalotofimportanceonthe identihcation of the Appellant by both PW 1 and PW2 whereas they were untruthful because of the major inconsistencies in their evidence'

- Counsel argued that it was questionable that both PW 1 and PW2 did not mention the Appellant's name when they made their police statements and yet they had intimated that they had known him More specifically' that PW2 testified that he had known the Appellant for more than 3 months and yet when approached by the robbers, he questioned who they were' 10 - Counsel also argued that PW3 testified that the Appellant was arrested because Namukose Fatimah, one of the maids at the Complainant's home had seen him peep over the fence and she recognised him as one of the robbers and yet she was not called as a witness. According to Counsel' both PW1 and PW2 ought to have mentioned the involvement of the Appellant from the onset instead of waiting for him to peep over the fence, a week later' 15 20

It was also submitted for the appellant that both PW I and PW2 gave contradictory evidence regarding the appellant's hair when PWI testified that he hadtintedgoldhaironthenightoftheattack. PW2testifiedthattheAppellant hadaboldheadthoughtintedwhilePW3statedthatatthetimeofarrest'the Appellant had golden tinted hair in the middle and black hair on the sides'

Counsel for the Appellant also submitted that according to PW <sup>I</sup>' she saw four people who came with PW2 towards the house and the Appellant was holding <sup>a</sup> knife while PWI testified that he only saw two assailants armed with guns' counsel referred court to candiga Swadick v uganda, court of Appeal CrlmlnalAppealNo.o23of2oL2forthedictathatmajorcontradictionsand inconsistences in evidence will usually result in the witness' evidence being rejectedunlesstheycanbeexplainedawaywhileminorinconsistenceswilllea,l to the evidence being rejected if they point to deliberate untruthfulness on par i" of the witness. 10 5

Counsel concluded that, had the trial court addressed its mind to all these contradictory facts, the Judge would have reached a conclusion that the Appellant was not identified at all during the said robbery and he was beirtg framed. 15

on ground 2, it was submitted for the Appellant that the Sentence of 26 years passed by the learned trial Judge was harsh and excessive in the circumstances since the trial court did not take into account the mitigating factors thereby departing from the conventional rule of uniformity in passing sentences'

CounselreferredcourttothedecisionoftheSupremeCourtinAharikundlra YustlnavUgandaSCCAllo.o2Tof2ooSforthedictathatconsistencyisa vital principle of the sentencing regime and that it is deepiy routed in the rule of

<sup>5</sup> law and requires that laws be applied with equality and without unjustifiable differentiation.

Counsel also referred us to PTE Kushemeretlra and Another v Uganda' Criminal Appeal No. O27 I 2OO5, where the Appellants had been convicted witll three counts of aggravated robbery and they were sentenced to 20 years <sup>10</sup> imprisonment on each count but on appeal, the sentences were reduced to <sup>13</sup> and 12 years resPectivelY.

counsel submitted that in this case, the Appellant was a Iirst-time offender aged <sup>19</sup>years at the time of commission of the office He was a young man capable cf reforming and being useful to society, and had the learned triai Judge addressed

her mind to these mitigating factors and the principle of uniformity' she would have arrived at a more lenient sentence' 15

Counselprayedthatthisappealbeallowedandcourtbepleasedtosetasidethe sentence and substitute it with 10 years considering the time that the Appellant has spent in lawful custodY.

## 20 Res ndent's re I

In reply, Counsel for the Respondent submitted that the alleged contradiction between the testimony of PW1 and PW2 was considered by the trial Judge a]]d resolved. PW1 had testified that she saw four attackers with guns and that the Appellant had a knife. PW2 on the other hand told court that there were two

<sup>5</sup> attackers with guns. Counsel referred court to pages 58 and 59 of the Record <-'f Appeal where the Judge relied on PW1's testimony that some of the attackers went to her ATM to withdraw money using a wrong PIN which she had given them and when it failed they called the ones who had stayed at the house' who demanded for the correct PIN at gun point' She gave the PIN and her money was withdrawn. According to Counsel this explained the minor inconsistency regarding the guns. 10

CounselfurthersubmittedthatPW2truthfullytestifiedincrossexamination that he saw two attackers because when they attacked him, one robber was in frontofhimandanotherbehindhim. Theattackersforcedhimtoknockonthe door and upon opening for them they entered the house' bound his arms and legs and locked him up in the bathroom' He did not come out of there until the robbers were gone.

Counsel contended that PW1 was the major witness because after locking up PW2,hadtoenduretheordealwiththerestoftherobbers. InCounsel'sview, thiswasnotacontradictionbecausePW2,sevidenceonthenumberofattackers was not shaken during cross examination and neither was PW1's testimony that she saw four people. At no point did any ofthem increase or reduce the number of people they saw and they were sure'

Regarding the contradiction on the hair of the Appellant' PWl testified that at thetimeoftherobberytheAppellanthadtintedgoldhairwhilePW2testified 25

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<sup>5</sup> thathehadabaldheadthoughtintedwhilePW3testifiedthathehadgoldhair in the middle and black hair on the sides at the time of arrest ln reply' it was submitted for the Respondent that neither of the witnesses testilied that the Appellant had long hair and so it could have been very short or near bald but tinted. Further, that the Appellant had testified that he had tinted hair at the

## 10 time of his arrest

counsel contended that the tinted hair was not the only feature used to identify the Appellant. Counsel referred to the testimony of PW2 who stated that he was able to identify the Appellant by the missing toe nails' This was not rebutted bv theAppellantinhisdefence. AccordingtoCounsel,thefactthatPW2saidthat the Appellant had a bold tinted head is minor and does not go to the root of matter, and as such, it suffices that all the above pieces of evidence point to the fact that the Appellant had tinted hair at the time of the robbery and was properly identified bY the witnesses.

CounselarguedthattheAppellant,sargumentthathewaslivinginthatvillage and that everyone knew him as a person with tinted hair and missing toes was an afterthought which does not in any way discredit the evidence of the witnesses 20 who identified him.

Counsel submitted that the learned trial Judge evaluated the evidence in its entirety and found PWl and PW2 to be truthful and consistent witnesses and they corroborated each other on the major details' In the alternative' counsel 5 submitted that if this court finds that there were inconsistencies and Contradictions,theSamewereminor,theydidnotgototherootofthecaseand there was no deliberate untruthfulness on the part of the witnesses'

Counsel argued that even though, Counsel for the Appellant raised a ground on inconsistencies,hemadesubmissionsregardingtheissueofidentilicationofthe Appellant by court which was not a ground of appeal' Nonetheless' Counsel referred court to the decision of the Supreme Court in Bogere Moses and Another v Uganda cited in Opolot Justlne and Another v Uganda' Criminal Appeal No. 155 of 2OO9 on identification for the proposition that where identificationismadeinsatisfactoryconditionsbyapersonwhoknewthe accused before, a court can safely convict even though there is no other evidence to support the identification evidence provided the court cautions itseif' 10 15

CounselcontendedthatthelearnedtrialJudgecautionedherself. Sheevaluate',.' the evidence of PWl and PW2 independently' assessed the demeanor of the witnessesandfoundthemtobetruthfulandreliable'AccordingtoCounsel'the submissionfortheAppellantthatPWlandPW2failedtomentiontheAppellant in their statements at police did not arise at trial' It is a mere submission from the bar, the police statements were not part of the record and the contents thereof are unascertainable and the learned trial Judge cannot be faulted for an issue that was not part of the record'

- Counsel referred court to the decision of Candiga Swadlck v Uganda (supra) which was cited with approval by the Supreme Court in Mureeba Janet and <sup>2</sup> Others v Uganda Crlminal Appeal No' O13 of 2OO3' for the dicta that inorder for a police Statement to be treated as evidence, it must be properly proved an<i admitted in evidence unless the authenticity of the statement is not challenged' - Counsel argued that on the issue of the failure to bring Namukose the maid to testify, this did not occasion any miscarriage of justice on the Appellant because PWl and PW2 positively identified the Appellant at the time of the robbery' Counsel referred to section 133 ofthe Evldence Act Cap 6' for the proposition that no particular number of witnesses shall in any case be required for proof cf any fact. 10 15

Regarding the sentence, it was Counsel's contention that sentencing is the discretion of a trial judge and that under sectlons 285 and 286 l2l ofthe Penal Code Act Cap 12O, the maximum sentence for a conviction arising from the offence of aggravated robbery is death Further that the starting point for such conviction is 35 years per the Constltutlon Sentenclng Guldellnes for Courts of Judlcature (Practice) Directions, Legal Notlce No' OO8/2O13'

Counsel submitted that the trial court considered the aggravating and mitigating factors in the case and the four years which the Appellant had spent on remand' The trial Judge gave her reasons for sentencing the Appellant to 30 years and

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<sup>5</sup> accordingly she exercised her discretion judiciously within the precincts of thc law

Counsel relied on the Supreme Court decision of Bakubye Muzamiru and AnothervUganda,sCCANo.os6of2olswheretheappellantswereContesting harshness of sentence of 40 years for murder and 30 years for aggravated lorobberyandthecourtheldthatthecourthaspowertopassappropriate Sentencesaslongastheydonotexceedthemaximumsentenceprovidedbylaw. The sentences herein were maintained'

Counsel argued that the sentence of 30 years was lenient in the circumstances andthatthelearnedtrialJudgeexercisedherdiscretionjudiciously. Counsel invited court not to interfere with the sentence'

## Resolution

This is a hrst 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 andmakeitsinferencesonissuesoflawandfactwhilemakingallowanceforthe fact that we neither saw nor heard the witnesses See: Pandya v R [1957] E'A 336, Bogere Moses and another v Uganda, Supreme Court Criminal Appeal No. 1 of 1997 and Kifamunte v uganda, supreme court criminal Appeal No' 1O of 1997.

It is trite law that an accused person is convicted on the strength of the See: Israel EPuku s/o Page 111 <sup>25</sup> prosecution case and not on the weakness of the defence

## <sup>5</sup> Achouseu v R [1934] EACA 166 and Akol Patrick & Others v Uganda' Court ofAppeal Criminal Appeal No, O6O of 2QO2'

Bearing in mind the above principles of law, we shall proceed to consider the first ground of appeal on the alleged error by the learned trial Judge when she convictedtheAppellantrelyingonprosecutionevidencefullofcontradictions 10 and incon si stencles.

The law on contradictions is settled ln T\euinomugisha Alex and two others v' Uganda, Supreme Court Criminal Appeal No' 35 of 2OO2 ' it was stated thus:

'It is settled laut that graue inconsistencies and contradictions unless sotis/a ctorilg exploined, rttill usuallg but not necessailg result in the euidence of a tuitness being rejected' Minot ones unless they point to deliberate untruthfulness rttill be ignored'

The grauity of the contradiction tuill depend on the centralitA of the motter it relates to in the determination of the key issues in the case' What constitutes a mojor contradiction uill uary from case to case' The question ahttags is whether or not the contradictory elements are material, i.e. " essential" to the determination of the case' Material aspects of euidence uary from crime to cime but' generallg in a ciminal tial, mateialitg is determined on basis of the relatiue importance betueen the point being offered bg the contradictorg

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evidence and its consequence to the determination of any of the *elements necessary to be proved.*

It will be considered minor where it relates only on a factual issue that is not central, or that is only collateral to the outcome of the case."

## See also Alfred Tajar v. Uganda, EACA Cr. Appeal No.167 of 1969, Uganda v. 10 F. Ssembatya and another [1974] HCB 278, Sarapio Tinkamalirwe v. Uganda, S. C. Criminal Appeal No. 27 of 1989, and Uganda v. Abdallah Nassur [1982] HCB).

It was submitted for the Appellant that the prominent contradictions and inconsistencies in the prosecution case included the discrepancy in the number 15 of attackers whereby PW1 testified that there were 4 attackers with guns and PW2 testified that there were 2 attackers with guns; the discrepancies in the description of the hair of the Appellant and the failure of the witnesses to mention the name of the Appellant as one of the attackers in their police statements.

While evaluating this evidence and ascertaining whether or not the Appellant 20 participated in the commission of the offence, on pages 7-13 of her Judgment, the learned trial Judge had this to say:

> "PW1 and PW2 stated that they recognised the Accused person as being one of the robbers... The Accused had once worked in her compound for 2-3 months...

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The Accused's evidence would be credible but for the evidence of PW1 and PW2 who positively recognised the Accused person as one of the robbers. Court believed them and found that they were consistent and corroborated each other on major details. Therefore, I find that the Prosecution has proved that the accused participated in the commission of the offence."

$10$

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PW 1, Namara Annet in her examination in chief testified that:

I saw four attackers with guns. The Accused was not holding a gun, *he had a knife.*

... So when he removed the mask, I got scared, I thought he was going to shoot me so the one that was in the corner told him that put back the mask immediately. So he said all of you, down, down, down and by that time he had tinted hair.

At page 19-20 of the Record of Appeal, PW2 Mugisha Kennedy, testified thus:

He had a bald head although he had tinted it, he was putting on 20 flats in his feet, as they made me lay down, he stood near me and I closely saw the sandals he was wearing. He didn't have nails in his *feet. The big toe of one foot didn't have a nail.*

At page 24 of the Record of Appeal, PW2 stated in cross examination that:

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<sup>5</sup> The other robbers came afier I had been pushed to tle bathroom but for me I saut onlY those tuo'

We have reviewed the evidence on the lower Court record and the analysis of the evidencebythetrialJudgeasaboveandfindingsofthetrialcourtregardingthe same. As submitted by Counsel for the Appellant' PW1 testihed that she sa\"/ four attackers with guns and that the Appellant had a knife' PW2' however' tollcourtthatthereweretwoattackerswithguns. Accordingtocounsel,thiswasa majorinconsistencythatshouldhavebeenresoivedinfavouroftheAppellant.

Whileresolvingthisissue,thelearnedtrialJudgeatpages56.5ToftheRecord of Appeal based on PWl's testimony that some two attackers were inside the house, one with a gun watching over the people in the corner and the Appellant with a knife searching drawers for money' She testified further that she was forced to give her ATM to one attacker who took it to someone outside and one of the attackers went to her ATM to withdraw money using a wrong PIN which she had given them and when it faited, they called the ones who had stayed at the house. These ones demanded for the correct PIN at gun point which she gave and her money worth UGx' 150'ooo/= was withdrawn and stolen"' According to the Judge, this planning and execution of the offence could not have beee executed by only two attackers and she chose to believe PWl' 15 20

ourfindingiSthatthelearnedtrialjudgecorrectlyevaluatedthisevidenceand explained the inconsistency between PW1 and PW2's testimonies regarding the 25

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<sup>5</sup> numberofattackers'AScorrectlySubmittedbyCounselfortheRespondent,PW2 truthfully testified in cross examination that he saw two attackers because wher they attacked him, one robber was in front of him and another behind him' Further that the attackers forced him to knock on the door and upon opening for him they entered the house, bound his arms and iegs and locked him up in the bathroom with running water, and he did not come out of there until the robbers were gone. 10

We find that the inconsistency regarding the number of attackers was mlnor' Thewitnesseswithstoodcrossexaminationandeachmaintainedwhattheyha't witnessed. Indeed, at no point did any ofthem increase or reduce the number of people they saw and they were sure, truthful and consistent as found by the learned trial judge.

Regarding the contradiction on the hair of the Appellant' PW1 testified that at thetimeoftherobberytheAppellanthadtintedgoldhairwhilePW2testified that he had a bald head though tinted and Pw3 testified that he had gold hair in the middle and black hair on the sides at the time of arrest' This evidence in ourview,relatedtoidentificationoftheAppellant. Wenotedthatnogroundof appeal was raised regarding identification and from the review of the record the Appellant conceded that he had tinted hair at the time of his arrest'

Wefindthedifferencestobeminorandincapableofgoingtotherootofmatter since the Appellant was correctly identified as found by the learned trial Judge' 25

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<sup>5</sup> HadCounselfortheAppellantwishedtodisputeidentificationoftheAppellant, he ought to have raised this as a ground of appeal on its own in the Appellant's Memorandum of APPeal.

Nonetheless, as garnered from the record, hair was not the only factor used to correctlyidentifytheAppellant'ThelearnedtrialJudgereliedonPW2'sevidence that he was able to identify the Appellant by the missing toe nail on his big toe which fact was not rebutted by the Appellant in his defence' The Appellant was known to PW1, and PW2 having worked with them previously' he spoke to PW1 and took off his mask while searching for money in her house, the light was on and the order lasted about 4 to 5 hours'

Inourview,alltheabovepiecesofevidencepointtothefactthattheAppellant had tinted hair at the time of the robbery and was properly identified by the witnesses. The learned trial Judge correctly warned herself of the need for cautionwhiledealingwiththeevidenceonidentilicationofPWlandPW2inview of the fact that the offence was committed at night' She was satished that the conditionsatthescenewerefavourableforcorrectandunmistakenidentilrcation 15 20

of the Appellant.

we have aiso considered the submission for the Appellant that PWl and PW2 failed to mention the Appellant in their statements at police and yet they allege thathewasknowntothem'Thiswasneverpartoftheaccused,sdefence. We

find that this was indeed a submission from the bar. PW3 testified that he took 25

Page 117 5 down police statements but the said statements were not part of the record and thecontentsthereofareunascertainable. ThelearnedtrialJudgecannotbe faulted for an issue that is not part of the record'

Wehaveconsideredtherangeandcharacterofthecontradictionsand inconsistencies so highlighted' We have not found them to be grave We also find 10 that the learned trial Judge evaluated the evidence in its entirety and found PW1 andPW2tobetruthfulwitnesses,consistentandtheycorroboratedeachother on the major details.

Accordingly,wefindnoreasontofaultthelearnedtrialJudge'sfindingsand conclusion that the Appellant committed Aggravated robbery' In the result' we 15upholdtheconvictionandfindthattherewassufrlcientevidencetosustaina conviction

20 Inrespectofthealternategroundofsentence,itiSsettledthatfortheCourtof Appeal, as a first appellate court, to interfere with the sentence imposed by the trialcourtwhichexerciseditsdiscretion,itmustbeshownthatthesentenceis 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: Kamya Johnson Vlavamuno v Uganda' Supreme Court Criminal Appeal No. O16 of 2OOO (unreportedf and Kiwalabye Bernard

<sup>v</sup>Uganda, Supreme Court Crimlnal Appeal No' 143 of 2OO1 (unreported)' 25

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5 While sentencing the appellant, at page 50 ofthe Record ofAppeal' the trial court stated thus:

> "The offence carries a maximum sentence of death' Houeuer' I will start tDith a sentencing range of 35 gears' Tlrc Conuict uas fonnerly emploged bg the uictim, theg contracted gou to help them plant grass in their compound. This conduct of gours rlthich denies other gouth jobs becouse of lack of trust.

It utas high handed the raag the robbers tormented the familg for many hours 4-5 hours. Hotueuer, I also note that the injuries uere mqllmum

15 Houeuer, the acansed is young, there is room to reform' Therefore' I sent Aou to 3O gears impisonment, I tuill reduce the four Aears Aou haue spent on remand and gou serue 26 gears imprisonment' This is also to help keep Aou out of trouble because nott't if you start at this age gou become a habitual robber and gou might euen get killed'

So you are safer in Pison-"

Fromtheabove,itisclearthatthetrialcourtconsideredboththeaggravating and mitigating factors before sentencing the Appellant to 30 years' imprisonment. It is the contention of Counsel for the Appellant that this sentence was harsh and excessive

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5 We noted Counsel for the Appellant's submission that this court is bound to foilowtheprincipleof"parity''and"consistency''whilesentencing'whilebearing inmindthatthecircumstancesunderwhichtheoffencesarecommittedareno| necessarilY identica-l.

## GuidelineNo.6(c|ofthe(SentencingGuidelinesforCourtsofJudicature) (Practice) Directions, 2O13 provides that:

"Euerg court shall ttthen sentencing an offender toke into account the need for consistencg trLith appropiote sentencing leuels and other means of deoling tttith offenders in respect of similar offences committed in similar circumstonces '"

### 15 In Aharikundira Yustina v uganda, supreme court criminal Appeal No' o27 of 2O15 this court held that:

"An oppellate court must bear in mind that it is setting guidelines upon ttthich loraer courts shall follottt rtthile sentencing' According to the d.octine of stare d'ecisis, the decisions of appellate courts are binding on the louer courts' Precedents ond pinciples contained therein act os sentencing guidelines to tLLe louter courts in cases inuoluing similar facts or offences since theg prouide an indication on the oppropriate sentence to be imposed'"

25 We are in agreement with the above passage lt is the duty of this Court while dealing with appeals regarding sentencing to ensure consistency with cases that Page 120

<sup>5</sup> 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 equality and without unjustifiable differentiation '

Bearing the above in mind, we shall now proceed to consider sentences passed inothersimilarcases. InRutabingwaJamesv. Uganda,CriminalAppealNo.

STof2oll,thisCourtconfirmedaSentenceof18years,imprisonmentfor aggravated robbery. While conirrming that sentence' this Court noted that the Appellant in that case had spent close to 5 years on remand' It also considered the nature of injuries which had been inflicted upon the victim' 10

In Adama Jino v Uganda, Crlmlnal Appeal No' 5O of 2OO6 at Gulu' this Court reducedthesentencefromdeathto15years,imprisonment. Inthatcase,this Court took into account the period of 3 years and 2 months the Appellant had spent on remand, the fact that there had been no loss of life and the fact that the Appellant appeared repentant' 15

# In Pte Kusemererwa and Another v Uganda Criminal Appeal No' 27 of 2OO5'

the Appellants had been convicted of three counts of Aggravated robbery and they were sentenced to 2O years' imprisonment on each count On appeal' the said sentence was reduced to 13 and 12 years respectively for each of the Appellants. 20

According to Section 286 l2l of the Penel Code Act Cap l2O' the maximum penalty for the offence ofAggravated Robbery is death' However' this punishment 25 Page 121

<sup>5</sup> 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 provided by Regulation 2O of The Constitution (Sentencing Guidelines for Courts of Judlcature) (Practice) Directions' 2O13 to include; the use and nature of weapon used, the degree of meticulous pre-meditation or planning' and thegratuitousdegradationofthevictimlikemultipleincidentsofharmorinjuiy or sexual abuse. 10

In Ninsilma v. Uganda Crim' Appeal No' opined that these guidelines have to be precedents of Court, decisions where the facts have a resemblance to the case under trial. l8O of 2O1O, the Court held thar applied taking into account Past

From the above and the evidence as a whole it is clear that guns which are deadly weapons were used although no life was lost' We also take cognizance of the degree of meticulous pre-meditation or planning in this case' We have also consideredthefactthattheAppellantwasafirst-timeoffenderaged19yearsat the time of commission of the offence' Considering the age of the Appellant' <sup>a</sup> long custodial sentence would not meet the intended purpose of reforming him back into society.

Wefindthatthetrialcourtconsideredboththemitigatingandaggravating factors before sentencing the Appellant to 30 years' imprisonment' the sentence

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<sup>5</sup> passed was neither excessive nor harsh in the circumstances since the principle of parity and consistency in sentencing was followed' By passing this sentence' the learned trial Judge followed the sentencing principle regarding uniformity of sentences in similar cases

When imposing a custodial sentence upon a person convicted of the offence of Aggravated Robbery c/s 285 and 286 (2) ofthe Penal Code Act' the Constitution (SentencingGuidellnesforCourteofJudlcaturef(PracticelDirections'2O13 stipulateunderltem4ofPartl(underSentencingranges-Sentencingrangei't capitaloffences)oftheThirdSchedule,thatthestartingpointshouldbe35years.

imprisonment, which can then be increased on basis of the aggravating factors

of reduced on account of the relevant mitigating factors' 15

In Guloba Rogers V Uganda, Criminal Appeal No'S? of 2O13' this Court sentenced the appellant to 35 years imprisonment having been convicted of aggravated robbery. The Supreme Court in Ojangole Peter V Uganda Criminal Appeal No.34 of 20 17 conhrmed a sentence of 32 years imprisonment where the appellant had been convicted of aggravated robbery'

We hnd the sentence of 26 years imprisonment to be neither harsh nor manifestly excessive and maintain it'

#### Decision

t

1. The conviction of aggravated robbery is upheld'

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<sup>5</sup> 2. The sentence of 26 years' imprisonment is maintained to be served from 20th July 2015, the date of conviction.

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| We so order | r | | | |-----------------------|----|--------|-------| | Dated at Kampala this | \\ | day of | 2022. |

RICHARD BUTEERA

#### DEPUTY CHIEF JUSTICE

ELIZABETH MUSOKE

#### JUSTICE OF APPEAL

<sup>20</sup> CHEBORION BARISHAKI

JUSTICE OF APPEAL

10