Muhirwe v Uganda (Criminal Appeal 376 of 2019) [2025] UGCA 106 (24 April 2025)

#### THE REPUBLIC OF UGANDA

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

## Coram: Christo her Gashirabake Dr. Asa M n I & John Mlke Musisi J CRIMINAL APPEAL NO. 0376 OF 2019

5 (Arising from the judgment of High Court at Mpigi by Henry Kaweesa J. in Criminal Case COA- OO-CR-O3O oi ZOtO;

## MUHIRWE ROBERT :::::::::::::]::33::::::::::::::::::::::::::::::::: APPELLANT VERSUS

10 UGANDA 3::::::::::::::::::::::::::::::::::::r:::3::::::::::::::::r::::::\*::: RESPONDENT

#### JUDGMENT OF THE COURT

#### 1. INTRODUCTION

#### 15

The appellant was convicted for the offence of aggravated robbery contrary to Sections 285 and 286(21 ol the Penal Code on 29th September 2079 by Henry Kaweesa J. who sentenced him to 20 years of imprisonment.

## 20 2. BACKGROUND

On 17th August 2OL7, in Kaserye village, Kikajj o ward, Kyengera Town, Wakiso District, the victim, Maureen Mugisha, called the appeliant and requested him to escort her to home from work, to which he agreed. The victim and the appellant started the journey but she noticed the appellant was walking behind her. A group of people emerged from the bush and attacked the victim with pangas, iron bars, knives. They robbed Shs 550,0O0 and a mobile phone worth 570,000 from the appellant. They beat her and tied her hands with A rope. She gave them her mobile money pin number. The appellant who had been with the victim disappeared. He was later found with the two pieces of cloth and a pair of shoes that the victim had lost at the scene. 30

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The appellant was charged and convicted for aggravated robbery by the trial Judge who sentenced him to 20 years of imprisonment. The appellant not satisfied with the decision of the High Court appealed.

# 5 3. GROUNDS OFAPPEAL

The appellant raised the following grounds of appeal.

- 1. That the trial Judge erred in law and fact when he convicted the appellant relying on the prosecution evidence that was insufiicient to warrant <sup>a</sup> conviction thereby occasioning a miscarriage ofjustice. - 2. The learned trial Judge erred in law and fact when he passed a sentence of 20 years of imprisonment upon the appellant, which is harsh and excessive thereby occasioning a miscarriage of Justice. - <sup>15</sup> At the hearing of the appeal, the appellant abandoned ground 1. We shali therefore only address the second ground.

#### Representation

<sup>20</sup> At the hearing on 3l"t March 2025, the appellant was represented by Ms. Sheila Kihumuro on state brief. The respondent was represented by Ms. Happiness Ainebyona, Chief State Attorney.

### ANALYSIS AND DETERMINATION OF'GROUND 2.

The learned trtal judge erred in law and fact when he passed a sentence of 20 years of imprlsonment upon the appellant, whlch is harsh and excessive thereby occasloning a mlscarriage ofJustlce.

Itt'rtt ^rd

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#### SUBMISSIONS OF PARTIES

# 5 The counsel for the Appellant's submisslons

The counsel for the appellant submitted that the learned trial Judge did not properly take into account the mitigating factors thereby arrived at a harsh and excessive sentence. He cited Aharikundira Yusitina u Uganda, Supreme Court

- Criminal Appeal2T of 2OO5, where it was held that consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of the law and requires that laws be applied with equality and without unjustifiable differentiation. He also cited Adama Jino u Uganda Cimind, Appeal 50 of 2006, where a sentence was reduced from death to l5 years of imprisonment. The court took into account 10 - the period of 3 years and 2 months the appellant spent on remand, the fact that there had been no loss of life and the fact that the appellant appeared repentant. The counsel prayed that the sentence of the appellant be substituted with a lenient sentence of 6 years keeping in mind the time spent on remand. 15

# 20 The counsel for the respondent's submlssions

The counsel for the respondent conceded that the trial Judge did not take into account the time spent on remand, which is illegal.

# 25 Determlnatlon by court

The trial Judge stated in the sentencing ruling, Appellant shall serve 2O years of imprisonment running from the date of remand'. Since counsel for the respondent conceded that the sentence passed by the trial Judge was illegal because he did not consider the time spent on remand, we shall invoke Section 11 of the Judicature Act and set it aside. We shall impose a fresh sentence.

3w

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According to the Third Schedule of the Sentencing guidelines, the sentencing range for the offence of robbery is 30 years to death sentence after considering the mitigating and aggravating factors. The state prosecutor at the sentencing

- 5 hearing submitted that the convict was a lirst time offender. He was convicted of an offence whose maximum penalty is death. The appellant was part of robbers who used a deadly weapon when they stole from the victim. The appellant was not remorseful. The respondent prayed for deterrent custodial sentence of 4O years. The counsel for the appellant admitted that the appellant was a first time offender. He was young and has a chance to reform. She prayed that the 2 years 10 - spent on remald be considered. The appellant prayed for leniency so he could go to take care of his family.

15 We are alive to the fact that courts are enjoined to maintain consistency in sentencing while being mindful that each case presents its own facts. \n Abelle Asuman u Uganda, Supreme Court Criminal Appeal 66 of 2016, the appellant was convicted for aggravated robbery. He was sentenced to life imprisonment by the High Court. The Court of Appeal reduced the sentence to lB years of imprisonment. The Supreme Court upheld the 18 years of imprisonment imposed by the Court of Appeal. ln Bogere Asiimute Moses and Sengonga Sundag u tJganda, Supreme Court Criminal Appeal 39 of 2016, [2018] UGSC, 19tn April 2018) the Supreme Court upheld a sentence of 20 years of imprisonment imposed for aggravated robbery. The appellants were 22 and 23 years old. The court noted that there was no violence, no death occurred and some property was recovered . In Rutabingua James u Ugando, Court of Appeal Criminal Appeal 20 25

- 57 of 2011, this court confirmed a sentence of 18 years' imprisonment for the offence of aggravated robbery. ln Lule Akim u Uganda, Criminal Appeal 274 of 2015, this court upheld a sentence of 20 years of imprisonment for aggravated robbery that had been imposed by the trial court, which they found to be neither - harsh nor excessive. 30

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This court will forthwith exercise its powers under Section 11 of the Judicature Act and consider the mitigating factors and re-sentence the appellant, keeping in mind uniformity and consistency in its decisions. We note that the appellant was a hrst time offender. He was aged 35 years at the time he committed the

- 5 offence as per the charge sheet. The appellant committed a crime which carries a maximum sentence of death. He betrayed the trust of a young girl he had offered to protect by escorting her. He needs a deterrent sentence as the crime he committed is a rampant one. Taking into consideration also the above cases, we shall sentence the appellant to 20 years of imprisonment. - 10

The law requires that the time spend on remand be considered when sentencing an accused. Article 23(8) of the Constitution provides:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

Article 23 (8) of the Constitution makes it mandatory and not discretional that a sentencing judicial officer accounts for the remand period. Guideline 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2O 13 provides:

- "(1) The court shall take into account any period spent on remand in determining an appropriate sentence. - (1) The court shaIl deduct the period spent on remand from the sentence considered appropriate after a-11 factors have been taken into account." - See Ruabugande Moses u Uganda, [2017] UGSC 8, (3rd March 2ol7l. A sentence arrived at without taking into consideration the period on remand is illegal for the failure to comply with a mandatory constitutional provision. We sha.ll forthwith take into consideration the time spent on remand by the appellant. 25 - The appellant was charged on 8th September 2077. He was sentenced on the 25th September 2019. He spent 2 years and 17 days on remand. In consideration to 30

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the time spent on remand of two years, he will serve 17 years 11 months and 13 days in prison from the date of sentencing of the trial court.

Dated at Kampala this $\frac{211}{24}$ day $\frac{1}{24}$ day $\frac{1}{24}$ 2025

Christopher Gashirabake

**Justice of Appeal**

Dr. Asa Mugenyi

**Justice of Appeal**

Musisi John Justice of Appeal

$20$

$10$

$\mathsf{S}$

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