Musinguzi and another v Uganda (Criminal Appeal 107 of 2011) [2018] UGCA 236 (12 March 2018)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

ICORAM: Kakuru. Egonda-Ntende & Musoke, JJAJ

Criminal Appeal No. 107 of 201I

(Arising from High Court Criminal Session Case No. HCT-0 I -CR-SC-01 I 2- 2010 at Fon Portal)

#### Between

| Musinguzi David:::= | Appellant No. I | | |---------------------|-----------------|--| | Munyoro Chris | Appellant No.2 | |

#### And

Ugand6-:: :==:Respondent

(On Appeal .from the decision of the High Court of Uganda [Akiiki-Kiiza, J.,J sitting at Fort Portal and delivered on the l B,h May 20 <sup>I</sup>l)

## JUGDEMENT OF THE COURT

#### lntroduction

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- l. The appellants were indicted of the off'ence of aggravated robbery contrary to sections 285 and 286 (2) ofthe Penal Code Act. The particulars ofthe offence were that the appellants and others still at large on the 2l'' October 2009 at Katumba Zone in Kabarole District robbed Basaliza Francis of cash shs. 1,300,000.00 and airtime worth Shs.2,400,000.00 totalling to Shs.3,700,000.00 and at or immediately belbre or immediately after the said robbery used a deadly weapon to wit acid on the said Basaliza Francis. The appellants were convicted of the said offence. Appellant No. I was sentenced to 24 years imprisonment while appellant no.2 was sentenced to 23 years imprisonment. - 2. The appellants appeal only against the sentences imposed by the High Court, with the permission of this court, in terms of Section 132 (l ) (b) of the Trial On Indictments Act. In their joint and sole ground of appeal they

contend that the learned trial judge erred in law in imposing an illegal sentence.

3. The respondent conceded the appeal.

### Submissions of Counsel

4. Mr Victor Businge appeared for the appellants and Mr Wanamama, Senior State Attomey with the office of the Director, Public Prosecutions, appeared for the respondent. Mr Businge submitted that the leamed trial judge had not complied with Article 23(8) of the Constitution as he did not deduct from the sentence he imposed the period the appellants had spent on remand. This failure was fatal to the sentence imposed rendering it illegal as laid down in Rwabueande Moses v Uganda. Supreme Courl Criminal Appeal No.25 of 2014 (unreported). He prayed that this court should now exercise the powers ofthe trial court pursuant to section I I of the Judicature Act and impose a fiesh sentence upon the appellants taking into account the mitigating and aggravating factors on the trial record. He proposed a sentence in the range of l2 to I 5 years imprisonment.

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5. Mr Wanamama for the state conceded the appeal. He submitted that the maximum punishment for this offence is the death penalty. He urged this court to impose a sentence of life imprisonment upon the appellants in light ofthe aggravating facts in this case.

#### A na lysis

- 6. The facts ofthe case are that the complainant was a shopkeeper and sold general merchandise including airtime. On the 21" October 2009 in the evening he was closing his shop. He packed Shs. I,300,000.00 cash into a small metal safe box as well as air time vouchers from different companies worth Shs.2,400,000.00. White he held the saf'e box and was locking up the shop, a voice behind said hello. He tumed to look at the person. The person had a cup and threw into his face a liquid substance that bumed him. He dropped the metal box. The person who threw the liquid substance at him picked up the saf'e box and passed it on to <sup>a</sup> second person and they run away. He recognised the appellant no.l as the person who had thrown the liquid substance at him. - 7. The appellants were recognised by a witness as they run from the complainant's shop with a metal box belonging to the complainant. The appellant no. I who had come to area waiting for money from his parents to go back to school was suddenly awash with tunds and was seen in

possession of air time vouchers of different telecommunication companies. Both appellants were arrested, charged and tried for this offence.

8. The leamed trial judge, in sentencing the appellants, stated,

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'Accused are allegedly lirst of'l'enders. They have been on remand. Al. 9 months. A'2 fbr I year and 4 months. I take this period into consideration while imposing the sentence on them.'l'hey are said lo be still young people. Accused have prayed fbr leniency. However both accused committed serious otl'ences. Aggravated robbery has a maximum senlence upon conviction ol'death penalty. This shows how serious the law takes robbers upon their conviction. ln this case. the accused who are young and who could earn a descenl (sic) living by working hard, attacked lhe victim and poured acid on him, which corroded his lace leading to disligurement and loss ol vision in an eye. Such behaviour in my view cannot be tolerated. The accused must pay tbr their sins by being sentenced to stilT sentences. Putting everything into account. I senlence Al to 24 years imprisonment and ,A2 lo 23 years imprisonment. Right ofappeal explained.'

- 9. The sentencing order ofthe leamed trialjudge stated that it had taken into consideration the period the appellants had spent on remand in passing sentences upon them. This was the formulae that complied with the earlier decisions ofthe Supre me Court like Kabwiso Issa v Uqanda. SC Crirninal Appeal No. 7 of 2002 (unreported). However, the Supreme Court held in Rwabusande Moses v Usanda. SC Criminal Aooeal No. 25 of 2014 (unreported) that it has departed from such construction. It has devised a 2 stage process. A sentencing court must first ofall determine what the appropriate sentence would be taking into account all mitigating and aggravating factors. And then the sentencing court must deduct the period spent on remand from such sentence and the result will be the sentence imposed upon a convict. - l0.lt is evident that in this case the 2 stage process was not foltowed. The Srpreme Court held in Rwabucande Moses v Usanda ( supra ) that a sentence from which the period spent on remand was not deducted is illegal. It follows that it must be set aside. We therefore set aside the sentence imposed on the appellants by the trial court. - I l. Exercising the powers conferred on this court by section I I ofthe Judicature Act we shall proceed to sentence the appellants. The appellant


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No. I is a first oftbnder. He was 2 I years old at the time of the commission of the offence. He is remorsefut and repentant. However, this was a serious offence that resulted in the loss of sight in one eye to the victim and disfigurement of his t-ace. The sentence must express the revulsion of this court and society at large to this offence. The stolen items were never recovered to-date. A sentence of l9 years imprisonment would be appropriate in the circumstances of this case. As the appellant had spent 9 months on remand prior to his conviction he shall serve l8 years and 3 months from the l8'r'May 2011, the date of his conviction.

- 12. The appellant no.2 was a llrst offender aged only 23 years old. He is a young man who has the capacity to reform. Nevertheless he committed a very serious offence that resulted not only to loss of property that has not been recovered but to loss of sight in one eye of the complainant as well as disfigurement of his face. The sentence must reflect the abhorrence that both this court and the society at large have for this offence. l9 years imprisonment would be the appropriate sentence in this case. We deduct therefrom a period ofone year and four months that the appellant spent in pre-trial custody. We impose upon the appellant- no.2 a S-entence of l7 years and 8 months i\*prironmeng/5^." 16 1 gth r/a; 7o t t - l3.ln addition under section 285 (4) of the Penal Code Act it is mandatory to order compensation where the death sentence is not imposed. Taking account of the value of the money and air time vouchers that were stolen and not recovered; the loss of sight in one eye and disfigurement ofthe face of the complainant, we order each appellant to pay to the complainant shs.5,000,000.00 as compensation for the loss suffered by the complainant on account of this offence.

sd at Fort Portalthis Q(8, olTIc' l- <sup>2018</sup>

q.fn^.^-/t Kenn akuru t

.l u stice of Appeal

FMS Egonda-Ntende Justice of Appeal

C $\mathcal{A}$ Elizabeth Musoke **Justice of Appeal**

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