Musisi v Uganda (Criminal Appeal 46 of 2023) [2024] UGHCCRD 61 (16 October 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

**(CRIMINAL DIVISION)**

**CRIMINAL APPEAL NO. 46 OF 2023**

**ARISING FROM CHIEF MAGISTRATE’S COURT OF WAKISO AT NANSANA CRIMINAL CASE NO. 189 OF 2023**

**MUSISI BATISTA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

**Vs.**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**JUDGEMENT**

**BEFORE HON. JUSTICE GADENYA PAUL WOLIMBWA**

1. **Introduction**

Musisi Batista, hereinafter called the appellant was charged and convicted on his own plea of guilty of the offense of office breaking c/s 298 of the Penal Code Act and theft c/s to section 254(1) and 261 of the Penal Code Act. Ms Irene Nambatya, a Principal Magistrate Grade I, sentenced him to two years’ imprisonment in count one and three years’ imprisonment in count two. She ordered that the sentences be served concurrently, noting that the appellant was repeat offender. Additionally, the Trial Magistrate ordered the Appellant to Compensate the Complainant a sum of UGX. 986.000/= within 6months after serving time imprison.

1. **Background to the Appeal**

On 1st March, 2023, the Appellant was charged with 2 counts. The first count was on Office Breaking with intent to Commit a Felony contrary to section 298 (currently section 278) of the Penal Code Act. The second count was on Theft contrary to section 254(1) and 261(currently sections 237 (1) and 244) of the Penal Code Act.

The Prosecution case was that on 1st January, 2023, at Mukisa Market – Igganda Village in Wakiso District, the Appellant, broke and entered into the office of Kasujja David with intent to commit a felony in it. On the same day, the Appellant having broken into the said office of Kasujja, stole UGX. 986.000/= which he (Kasujja) had kept in a wooden box-drawer and seared it with a padlock.

Initially, the Appellant denied the charges on both Counts. A plea of not Guilty was entered. The Appellant however, later changed his plea of Not Guilty to one of Guilty on both counts. He was convicted on both counts on his own plea of guilty and sentenced to Two years’ imprisonment on Count 1 and Three years’ imprisonment on Count 2. The sentences were ordered to run Consecutively. The Appellant now seeks to Appeal the said sentence on grounds that:

1. The Learned Trial Magistrate erred in law and fact on imposing a harsh and severe sentence of 5 years’ imprisonment 2. The Learned Trial Magistrate erred in law and fact when she failed to consider the remorsefulness of the Appellant who never wasted courts time by pleading guilty to the charges

The appellant prayed the 5-year imprisonment sentence be set aside and substituted with a fair and lenient sentence in the obtaining circumstances.

1. **Representation**

The appellant was self-represented whereas the Respondent was represented by Ms. Apolot Joy Christine, a senior State Attorney at the Office of the Director of Public Prosecutions.

1. **Arguments of the Parties**

On appeal, the appellant contested the sentence for being harsh and excessive. He requested the court to release him so that he can go back home and provide for his child. The Respondent supported the decision of the Trial Magistrate but advised the court to deduct the period spent on remand from the two sentences imposed on the convict in line with **Article 28(3) of the Constitution**. The respondent also urged court to direct the appellant to serve the sentences consecutively, given that he is a repeat offender.

1. **Resolution of the Appeal**

**5.0.1. The Law**

**In Kiwalabye Bernard Vs Uganda  SCCA No 143 of 2001, the Supreme Court guided that, “***an appellate court will not interfere with the sentence imposed by a trial court which has exercised its discretion unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where the court ignores an important matter or circumstances which ought to be considered when passing the sentence or where the sentence passed is wrong in principle.”*

**5.0.2. The Appeal**

**a) Failure to Deduct Time Spent on Remand**

This appeal among other things requires me to interrogate whether the Trial Magistrate erred in law when she failed to deduct the period the appellant had spent on remand from the sentences imposed on him. **Article 28(3) of the Constitution** directs that the period spent on remand shall be deducted from the sentence. The Supreme Court in **Rwabugande vs Uganda [2017] UGSC8(3March 2017)** guided that, “*the period spent on remand must be deducted mathematically from the sentence so as not to leave any doubts that the court did not take into account the period spent on remand in sentencing the convict*.”

In the instant case, although the Magistrate in the preamble of her sentence observed that she had had taken into account the period the appellant had spent on remand, she did not follow the guidelines set out in Rwabugande’s case for dealing with the pre conviction remand period when sentencing. To this extent therefore, it is not certain that Trial Magistrate deducted the period the appellant had spent on remand from the sentences that she meted out on the appellant.

As has been held time and gain, any sentence that does not take into account the time spent on remand by mathematically calculating it off, is illegal. Consequently, since the Trial Court did not take into account the period the appellant had spent on remand by mathematically calculating off the time in question, the sentences imposed on him are illegal and set aside. The Appellant will be sentenced afresh to ensure compliance with **Article 28(3) of the Constitution**.

The Appellant is a reported repeat offender having been charged and convicted in CO-48/2023, for engaging in similar offenses. As a repeat offender, the appellant cannot get a lenient sentence even if he pleaded guilty, took responsibility for his crimes and prayed for leniency. The Appellant for his own good, requires a deterrent but reformatory sentence that will help him to reform. Obviously, since the appellant is predisposed to commit crimes, keeping him away from society for some definite period of time will serve the end goals of justice.

Taking into account the above aggravating and mitigating factors, I consider the following custodial sentences to be appropriate for the Appellant:

1. In the count of office breaking, the appellant is sentenced to two years’ imprisonment. However, given that the appellant has spent three months on pre conviction remand, the appellant shall serve a net sentence of one year and nine months’ imprisonment. 2. In count II of theft, the appellant will serve as a sentence of three years’ imprisonment. However, since the appellant has spent three months on pre conviction remand, the appellant wills serve a net sentence of three years.

**b). Consecutive Sentences for Offenses committed in the same Transaction**

The Learned Senior State Attorney urged the court to direct the appellant to serve the sentences consecutively, given that he is a repeat offender. I agree with the Learned Senior State that repeat offenders should not be allowed to stretch the mercy of the court by being given lenient sentences.

However, firstly, I am mindful of the fact that the appellant committed the offenses in the same transaction. *See* Odele **Patrick v Uganda CACA No. 85 of 2018**, in which the Court of Appeal cited with approval the case of **Rex Sawedi Mukasa S/O Abdallah Aligwaisa, CA No. 182 of 1945 (EACA) 1** where the East African Court of Appeal stated that*, “the practice of the courts in cases where an accused is convicted of a series of counts/offences arising from the same transaction has been to direct the sentences to run concurrently.* Although, it should be noted that consecutive sentences are the default position in **section 175(1) of the Magistrates Courts Act**.

Thiscommon law approach to convictions on a series of counts arising from the same transaction will result in a just and fair sentence. On the one hand, it will protect an offender from serving a disproportionately lengthy sentence in prison as a result of aggregating the different sentences passed. On the other hand, it will still promote respect for the law; promote accountability on the offenders’ part; protect society; and, promote justice.

Secondly, I am alive to the fact that some offenders charged with more serious offenses, are receiving lesser sentences than those imposed in petty offenses which is unfair.

Thirdly, and most importantly, the principle of totality in sentencing as laid out in **Guideline 8 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions**, 2013, demands that the court should impose just and proportionate sentences when an offender is convicted of multiple offenses. The principle of totality aims to prevent excessive sentences by ensuring that the total sentence is just and proportionate to the offender’s behavior. So when sentencing an offender, there should be a weighing and even balancing of all factors that have to be taken into consideration. Resultantly, the total sentence should be consistent with and proportionate to the criminality of the offending behavior i.e. the overall sentence must be just and appropriate in light of the overall offending behavior and the overall punishment must be proportionate to the gravity of the offending behavior.

In this case, if the appellant serves the sentence consecutively, he will stay in prison for almost five years while if he serves the sentence concurrently, he will serve three years in prison. In my view, a sentence of three years is deterrent enough for the appellant to be punished and most importantly to be reformed. It is also proportionate to the appellant’s criminal behavior. In the result, the appellant shall serve the sentences concurrently.

1. **Decision**

The Appeal is allowed with the following orders.

1. The sentences of the Trial Magistrate imposed on the appellant are set aside. 2. The Appellant shall instead serve the following sentences. In count 1, where the appellant is charged with Office Breaking contrary to section 298 (currently section 278) of the Penal Code Act, he shall serve a net sentence of one year and nine months’ imprisonment and in count II, where he is charged with theft contrary to section 254 (1) and 261 (currently sections 237 (1) and 244) of the Penal Code Act, the appellant shall serve a net sentence of three years’ imprisonment. 3. All the sentences shall be served concurrently. 4. The Order of compensation shall remain undisturbed.

It is so ordered.

Gadenya Paul Wolimbwa

**JUDGE**

16th October 2024.

The Judgment was delivered in the presence of the Appellant and in the absence of the Respondent. Mr. Kagwa, Court Clerk, was present.

Gadenya Paul Wolimbwa

**JUDGE**

16th October 2024.