Mutebi and Another v Uganda (Criminal Appeal No. 259 of 2019) [2022] UGCA 295 (21 December 2022)

# THE REPUBLIC OF UGANDA

# IN THT COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEALS NOS. 259 OF 2019 AND 18 OF 2O2O 1. MUTTBI RONALD

# 2. LUBWAMA GEOFFREY JEFF : : : : : : : : : : : : : : : : : : : : : : APPELLANTS

#### VERSUS

UGANDA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : ; : : : ; : : : : : : : : : : RESPONDENT

(Ansing from the decision of the High Court in Ciminal Case No. 2O of 2016 doted 22"a JulA 2019)

# CORAITI: HON. JUSTIC. DE,LIZABETH MUSOKT' JA HON. JUSTICE CATHIRINE BAMUGEMEREIRE' JA HON. WSTICE STEPHEN MUSOTA' JA JUDGMENT OF COURT

The appellants were convicted of the offences of Murder c/s 188 and 189 of the Penal Code Act and Aggravated Robbery c/s 285 and 286(21 (b) of the Penal Code Act and each sentenced to 30 years imprisonment on each count.

#### Background

The facts of the case as stated by the prosecution were that on 31"t December, 2OI4, the deceased, who was a student of Columbian college in Canada left his home in Kololo to watch fireworks at the Kampala Serena Hotel. After the fireworks, the deceased walked

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along Nile avenue looking for a boda boda and was attacked by two men who assaulted him, took his phone and wallet leaving him unconscious along the pavement bleeding from nose and mouth. Police offrcers attached to UBC TV, which is in the sarne area found him and carried him to Mulago Hospital where he eventua-lly died. Police commenced investigations and tracked the deceased's phone number and it was found to be used by one Damulira Ssezi who was arrested. Upon arrest, he revealed that the phone had been sold to him by one Mutebi Ronald and this led to the arrest of the 1"t appellant. On arrest, the 1"t appellant admitted to have robbed the phone from a male victim along Nile Avenue. The 1"t appellant stated that the proceeds of the sale, which was 40,O00/= was shared between him and the 2"d appellant.

The appellants were indicted and convicted on both counts and were each sentenced to 30 years imprisonment on each count. Being dissatisfied with the decision of the trial court filed tJlis appeal on the following grounds;

- 1. That the learned trial Judge erred in law and fact when she convicted the appellant relying on unsatisfactory and uncorroborated circumstantial evidence thereby occasioning a miscarriage of justice. - 2. That without prejudice to the foregoing, the learned trial Judge erred in law and fact when she sentenced each of the appellants to 30 years imprisonment on each count, which is illegal, harsh and excessive thereby occasioning a miscarriage ofjustice.

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#### Representation

At the hearing of the appeal, Mr. Kumbuga appeared for the 1"t appellant while Mr. Henry Kunya appeared for the 2nd appellant, both on state brief. Mr. Sam Oola, Senior Assistant DPP, appeared for the respondent. The appellant's counsel were directed to file a joint memorandum of appeal which they filed and accordingly frled joint written submissions.

### Appellaat's submlssions

Counsel for the Appellant submitted that the learned trial Judge based her linding on the charge and caution statement allegedly given by the l"t appellant. However, that the charge and caution statement was repudiated and a trial within a trial was conducted but the trial Judge still admitted it in evidence. Counsel argued that there was no direct evidence that connected the l"t appellant to the scene of crime. That in the charge and caution statement, the 1"t appellant simply narrated how the robbery was carried out and stated that the 2"d appellant is the one that held the deceased by the neck and took away all the properties he had and handed them over to the 1"t appellant. The l"t appellant vindicated himself and implicated the 2"d appellant.

Counsel submitted that this was a case based purely on circumstantial evidence and relied on the decision in Bogere Charles Vs Uganda Supreme Court Crlminal Appeal no 10 of 1996 in

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which it was held that before drawing an inference on the accused's guilt from circumstantial evidence, court must be sure that there are no other circumstances to weaken the inference of guilt.

While arguing ground 2, counsel submitted that the sentence passed by the learned trial Judge was harsh and excessive in the circumstances of the case. Counsel referred to the case of Naturlnda Vs Uganda Supreme Court Crlmlnal Appeal No. 64 oI 2Ol7 in which a sentence of 18 years was given for a charge of aggravated robbery. In addition, counsel relied on Mbunya Godfrey Vs Uganda Supreme Court Crlmlnal Appeal No. OO4 of 2O11 in which the appellant was sentenced to 20 years imprisonment for murder.

## Respondent's submlsslons

In reply, counsel for the Respondent submitted that whereas the prosecution evidence was based on circumstantial evidence as there was no eye witness to the commission of the offences of murder and aggravated robbery, the trial Judge was alive to this position of the law on circumstaltial evidence and was cognizant of the fact that there were no eye witnesses to either of the two offences. Counsel submitted that there was overwhelming circumstantial evidence on record to prove the offences of murder and aggravated robbery against the first appellant.

Counsel submitted that after the trial urithin a trial was conducted, the learned trial Judge found that the charge and caution statement that had been repudiated, was freely recorded and the statement was admitted as Exhibit P7. The police officer who ed the statement

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followed the necessar5r procedure stipulated under the Evidence Act Cap 6. There was no evidence of torture before or during the recording of the charge and caution statement.

Counsel relied on the decision in Festo Androa Asenwa and another Vs Uganda Supreme Court Crimlnal Appeal No. 1 of 1998 in which it was held that a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. The evidence of PW2 was consistent that he had bought the deceased's stolen phone from the l"t appellant and this led to the arrest of the 1"t appellant.

Regarding ground 2, counsel submitted that the trial Judge considered the period spent on remand and also weighed the mitigating and aggravating factors of the case. The sentence passed was appropriate in the circumstances of the case. Counsel relied on the decision in Wetseage Robert and aaother Vs Uganda Court of Appeal Crlmlnal Appeal No. 161 of 2019 in which the appellants were convicted of murder and aggravated robbery and sentenced to 40 years imprisonment.

# Conslderatlon of the appeal

We are mindful that this is a lirst appeal and as such, this Court is enjoined to carefully and exhaustively re-evaluate the evidence as a whole and make its own decision on the facts, bearing in mind that it has not had the opportunity to see or hear the witnesses testify, especially if the demeanor of the witnesses is key to the findings made. Where the question is one of drawing inte;Ores from the facts

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adduced, this Court is free to reverse the findings of the trial Judge, if after reviewing the evidence, it is of the view that the findings of the trial Judge were wrong (See the caaea of Pandya v. R [195fl EA 336; Kifamunte Henry v. Uganda SCCA No. 10 of 1997, and Bogere Moses and Another v. Uganda, Supreme Court Crlmlnal Appeal No. 1 of 19971.

Rule 3O of the Judlcature (Court of Appeal Rules) Dlrectlons SI 13-10 provides that;

"30. Power to reappraise euidence and to take additional euidence

(1) On ang appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court mqA-

(a) Reappraise the evidence and draw inferences offact"

We have borne the above principles in mind in resolving this appeal.

# Ground I

Aggravated robbery is provided for under section 285 and 286 (21 of the Penal Code Act and it provides;

"285. Definition of robbery.

Ang person who steqls angthing qnd at or immediatelg before or immediatelg afier the time of stealing it uses or threqtens to use actual uiolence to ang person or propertg in order to obtain or retain the thing stolen or to preuent or ouercome resistance to its being stolen or retained commits the felong termed robbery.

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286. Punishment for robbery.

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(1) Ang person who commits the felong of robbery is liable-

(a) on conviction by a magistrate's cottrt, to impisonment for ten Aears;

(b) on conuiction bg the High Court, to impisonment for life.

(2) Notwitltstanding subsection (1) (b), where at the time of, or immediatelg before, or immediatelg afier the time of the robbery, an offender uses or threatens to use a deadlg ueapon or causes death or gieuous harm to anA person, such offender and ang other person jointlg concerned in committing such robbery shall, on conuiction by the High Court, be sentenced to death.

To prove the offence of Aggravated Robbery c/s 285 and 286 (2) of the Penal Code Act, the prosecution has to prove the following elements against an accused person:

- 1. There was theft of propert5r. - 2. Use of actual violence at, before or after the theft or that the accused caused grievous harm to the complainant or caused death. - 3. The assailants were armed with a deadly weapon before, during or after the theft. - 4. The accused participated in the robbery.

It is trite law that the burden of proof is on the prosecution to prove all the elements of the offence beyond all reasonable doubt. The burden never shifts save in a few cases provided for by the law. Even 6" ?age | <sup>7</sup>

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where the accused sets up a defence, it is upon the prosecution to prove that nonetheless, the offence was committed.

We shall proceed to re-evaluate the evidence on record for the offence of Aggravated Robbery.

The prosecution relied on the evidence of PW7 and PW9 to prove the ingredient of theft. PW7 was the police officer who recorded the charge and caution statement of the l"t appellant and it indicated that when the deceased was attacked, a telephone and a wallet with an unspecified amount of money were taken. The phone was identilied by PW9 the sister to the deceased person. The ingredient of theft was thus proved by the prosecution.

The deceased died as a result of t]le violence inflicted on him. The evidence of the prosecution in this case was that the assailants caused grievous harm to the deceased which resulted into his death. For an accused person to be convicted of Aggravated Robbery, the prosecution is required to prove that immediately before, during or immediately after the said robberJ, the assailants had deadly weapons in their possession. A deadly weapon is defined by section 286 (3) of The Peaal Code Act as one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death.

In this case, whereas there was no mention of a deadly weapon used during the commission of the crime, the post mortem report indicated that the deceased died as a result of blunt tr e learned trial

Judge held that; <sup>h</sup> @ a\,

Page | 8 "While Exhibit P8, the post mortem report indicates that the deceased died as a result of blunt traumq, no ueapon used wqs exhibited bg the prosecution.

However, this is of no consequence because case law has established that; "there is no burden on the prosecution to proue the nature of the weapon used in inJlicting the harm which caused death. Nor is there ang obligation to proue how the instrument was obtained or applied in inflicting the harm."- refer to the case of Uganda us. Komakech Tong o'llas Mono & 2 others IICCS IiIo, 0131/2074 Justice Mubiru.

The euidence auailable in this case confirms that the assailqnts caused gieuous harm to the deceased which resulted into his death. See euidence of PW8 the Doctor and Exhibit P8 the post mortem report.

The third ingredient of the offence was accordinglg proued beyond all reasonable doubt."

From the above excerpt, it is clear the learned trial Judge convicted the appellants on the basis of the grievous harm caused to the deceased which resulted into his death. The prosecution also proved that there was theft and relied on the evidence of PW2 who testifi.ed that he bought the phone that had been stolen from the deceased, from the l"t appellant. PW7 recorded the charge and caution statement of the l"t appellant in which he admitted having participated in the attack that led to the death of the deceased and robbed him of a telephone and a wallet. The phone was sold by the

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1"t appellant to PW2 and t]:e sarne was recovered from him. It is our considered view that the ingredients of the offence of aggravated robbery were proved by the prosecution. We therefore find no reason to interfere with this linding of the learned tria-l Judge. The offence of Aggravated Robbery was proved beyond reasonable doubt by the prosecution.

Murder is provided for under sections 18g and 1g9 of the penal code Act. For the accused to be convicted of Murder, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- 1. Death of a human being occurred. - 2. Tl:e death was caused by some unlawful act. - 3. That the unlawful act was actuated by malice aforethought; and lastly - 4. That it was the accused who caused the unlawful death.

It is not in dispute that there was death of a human being caused by an unlawful act with malice aforetJrought. The main ingredient that is the subject of t]lis appeal is the participation of tl:e appellants in the commission of the offence. counsel for the appellants contends that the learned trial Judge wrongfully relied on tJ:e charge and caution statement made by the l"t appellant which also implicated the 2"d appellant.

This is a case based purely on circumstantial evidence and the principle of law is that to find a conviction exclusively upon

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circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other h5pothesis than that of guilt. See Simon Musoke vs. R [1es8l EA 71s

Likewise, in Teper vs. R (2) AC 48O the court held:

"It is necessary before drauing the inference of the accused's guilt from the circumstantial euidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference."

The charge and caution statement of the 1"t appellant was recorded by PW7 and when it was being tendered at the trial, the l"t appellant objected to it wherein a trial within a trial was held. The evidence of the prosecution was that the deceased had been robbed of his blackberry phone and an unknown amount of money. The blackberry phone was traced to PW2 who testified that he had bought the phone from the l"t appellant worth 60,000/=, paid 40,00O/= td had <sup>a</sup> balance of 20,OOO/=.

PW7 recorded the charge and caution statement in which the l"t appellant admitted that he and others participated in the attack that resulted into death of the deceased and robbed him of his telephone and wallet. They later took a motor cycle and left for Kazo and paid l2,OOOl=. However, the 1"t appellant had earlier stated that he had no money on him. The l"t appellant was instructed to sell the phone and two days later, he sold it to PW2, who was well known to the l"t appellant. The l"t appellant described how the offence was committed and also how the 2na appellant was dressed ay)aa searching the 2"d

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appellant's home, army like boots were recovered, which had been described by the 1"t appellant.

The l"t appellant denied the contents of the charge and caution statement but on conducting a trial within a trial, the learned trial Judge found that it had been voluntarily made. There was no evidence of torture as claimed by the 1st appellant. The confession was very detailed and gave detail of how both appellants needed money and went out to look for it among tJ:e people celebrating New Year's Day. The evidence of PW2 corroborated the charge and caution statement and in addition, the l"t appellant was known to pW2 before the incident and the selling of the phone to him.

It is our considered view that the prosecution squarely placed both appellants at the scene of crime. The participation of tJ:e appellants was proved beyond reasonable doubt and we find no reason to interfere with the convictions for the offences of Aggravated Robbery and Murder. Ground one therefore fails.

## Ground 2

An appellate court should not interfere with a sentence imposed by a trial court where the trial court has exercised its discretion on sentence, unless the exercise of that 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 trial court ignored to consider an important matter or circumstance which ought to be considered while passing sentence or where the sefrtence imposed is

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w'rong in principle (see Klwalabye Bernard v. Uganda Supreme Court Crlminal Appeal No. 143 of 2OOtl.

It does not matter that this Court would have given a different sentence if it had been the one trying the appellant (see Ogalo s/o Owoura v. R (1954) 24E,AC. A27O\.

The learned trial Judge sentenced the appellants to 30 years imprisonment each after considering the period spent on remand. She stated:

"Each of the two conuicts is sentenced to thirtg Aears impisonment on each of the tuo counts. The sentences to run concurrentlg.

The period spent on remand is already taken into account. Otheruise it would haue been thirty-five gears."

The appellants'counsel argues that this sentence is illegal, harsh and excessive. In the case of Abelle Asuman Vs Uganda S. C. C. A No. 66 of 2016, the Supreme Court held that;

"The Constitution prouides that the sentencing Court must take into account the peiod spent on remand. It does not prouide that the taking into account ha.s to be done in an arithmetical wag. The constitutionql command in Artlcle 23(8) of the Constltrttlon is for the Court to take into account the period spent on remand."

From the excerpt above, we find that the learned account the five year period the appellants had s appellant's argument is based on the decision in trial Judge took into pent on remand. The Rwabugande Moses


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versus Uganda S. C. C. A No. 25 of 2Ol4 which was overturned by Abelle Asuman Vs Uganda (supra). To take into account is to bear in mind or consider the remand period before imposing a sentence, but does not mean the period spent on remand has to be deducted in an arithmetic way. We therefore reject the appellant's argument on the legality of the sentence passed by the trial court.

Regarding severiQr of the sentence, the appellants were sentenced to 30 years imprisonment each. The learned trial Judge considered both mitigating and aggravating factors of the case. Sentencing, as a punishment for an offence is meant to be a retribution, deterrent and also to rehabilitate the offender. Both aggravating and mitigating factors have to be considered by the sentencing Judge.

The learned tria-l Judge's reasons for the sentence are;

frouned upon and they cause a lot of apprehe n within the general public. V The offences for uthich the conuicts were found guitty and conuicted of are of a uery graue and carry a. maximum sentence of death each. The conuicts are said to be first offenders and haue been on remand for fiue Aears. Howeuer, the uictim of this offence was deliberatelg targeted because of his moneg and phone. The offences were committed as part of a premeditated plan. The convicts lefi their area of residence deliberatelg targeting people in order to enrich themselues and in the process, the life of a Aoung person was taken awag. TfLd hfe can neuer be recouered (restored). The oJfences committed bg the two conuicts are greatlg

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*The family of the deceased and the society has been deprived of* a would have been very useful young person. The pain caused to the family can never be atomed for despite the condolences conveyed by the convicts. The unlawful conduct that was exhibited by the convicts has to be strongly condemned and the resultant actions severely punished, to send out a message that crime cannot be tolerated.

*If convicts are not punished for their criminal behavior, it becomes* a licence for other people to commit crimes as they believe they *can get away with it..."*

The learned trial Judge considered both the aggravating and mitigating factors of the case. We find no reason to interfere with the sentences passed by the learned trial Judge.

This appeal is therefore void of merit and is accordingly dismissed.

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We so order.

**Elizabeth Musoke**

**JUSTICE OF APPEAL**

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**Catherine Bamugemereire**

JUSTICE OF APPEAL

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**Stephen Musota**

**JUSTICE OF APPEAL**