Mwesigye Kawuki v Uganda (Criminal Appeal No. 471 of 2016) [2023] UGCA 387 (6 July 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA **CRIMINAL APPEAL NO.471 OF 2016** (Coram: Buteera, DCJ, Bamugemereire & Luswata, JJA)

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## **MWESIGYE KAWUKI DEO .................................... VERSUS**

## UGANDA::::::::::::::::::::::::::::::::::: (An appeal arising out of the judgment of John Eudes Keitrima J, in High

Court Criminal Session No. 50 of 2016 dated 26<sup>th</sup> February 2016 at Masaka) $10$

Criminal Law – Aggravated Robbery c/s 285 & 286(2) of the Penal Code Act – Harsh & Excessive sentence.

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## JUDGMENT OF THE COURT

#### **Introduction**

The appellant was indicted for Aggravated Robbery contrary to section 285 & 286 (2) of the Penal Code Act Cap 120. He was convicted and sentenced to 18 years imprisonment.

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### **Background**

In March 2011, the appellant attacked one George Iraguha at his home located at Katoma village in the Lwengo District. The appellant stole a mobile phone among other properties. The victim $25$ reported the case to police. A few weeks later the victim found his phone with one Mariyani who upon arrest informed the police that he had gotten the phone from the appellant. The appellant was then arrested by the police. The appellant's father pleaded to settle the matter by compensating the victim if charges were dropped. The

30 victim accepted the plea and charges were dropped.

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On 2B'h June 2011 at 3:00 am, the appellant and 2 others, again broke into George Iraguha's house with pangas and assaulted him. He sustained injuries on the head. The appellant robbed the victim of a television set, one Sony radio cassette, a suitcase containing

5 clothes and a bicycle. At the trial the appellant pleaded guilty to the offence of aggravated robbery and was convicted on his own plea of guilty. He was sentenced to a term of imprisonment of lB years effective from the 26'.h d.y of February 2016. Being dissatisfied with the sentence, the appellant appeals against sentence only. 10

Ground of Appeal

The Learned Trial Judge erred in law and fact when he sentenced the appellant to lB years imprisonment which sentence was illegal.

Representation

At the hearing of the appeal, the appellant was represented by Brenda Ainomugisha, while the respondent was represented by Assistant Director of Public Prosecutions, Simon Peter Semalemba who appeared together with Allan Mucunguzi, a State Attorney. The appellant applied for and was granted leave to appeal against sentence on[y. Both counsel proceeded by way of written submissions which this court has relied on to arrive at its Judgment. 20

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#### Submissions for the Appellant

Counsel faulted the learned trial Judge for attaching weight to the t's intention was to kill the victim. She hypothesis that the a


also faulted the learned trial Judge for failing to consider the mitigating factors in the case resulting into a harsh and excessive sentence of 18 years for the offence of aggravated robbery.

- $\overline{5}$ Counsel submitted that much as the learned trial Judge had considered the period spent on remand, the period had not been ascertained by the trial court at the time of sentencing and this rendered the sentence vague and hence illegal. At trial, the learned State Attorney noted that the appellant had spent 3 ½ years on - remand while the defence lawyer mentioned a period of 3 years. 10 Counsel for the appellant contended that the appellant had spent 3 years 8 months and 15 days on remand since he was arrested on 15<sup>th</sup> May 2012 and was sentenced on 26<sup>th</sup> February 2016. Counsel for the appellant prayed that this court imposes a fresh appropriate 15 sentence to the appellant taking into consideration the principle of consistency. He relied on Aharikundira v Uganda SCCA No.27 of **2014.** He prayed that this Court finds merit in the appeal.

#### **Submissions for the Respondent**

Counsel for the respondent invited this court to affirm the sentence 20 passed by the trial Judge. He also submitted that a sentence of 18 years was neither illegal nor harsh and excessive. Counsel argued that the sentencing range for aggravated robbery runs from 30 years imprisonment to the sentence of death and therefore that 18 years $25$ was not excessive. He argued that each case is considered on its own merits and that the appellant's argument on consistency was not persuasive. Counsel relied on the precedents of Kavuma Robert v Uganda CACA No.265 of 2015 and Nsimbi Paul v Uganda CACA

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No.187 of 2017, where this court upheld the sentence of imprisonment for 18 years on a conviction of aggravated robbery. Counsel prayed that this court does not interfere with the sentence imposed but rather upholds it.

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#### **Consideration of the Court.**

We have carefully taken into consideration the appellant's appeal, the submissions of counsel, laws, and judicial precedents referred to by counsel.

- $10$ As a first appellate court, we are required to re-appraise all the evidence adduced at the trial and arrive at our own conclusions and draw inferences on questions of law and fact. We are mindful that we did not see the witnesses testify. See Kifamunte Henry v Uganda SCCA No. 10 of 1997, The Executive Director of National - Environmental Management Authority (NEMA) v Solid State 15 Limited SCCA No.15 of 2015 (unreported) and Pandya Vs R [1957] EA 336.

This is an appeal against sentence only. The principles upon which 20 an appellate court may interfere with a sentence of the trial court were considered by the Supreme Court in Kyalimpa Edward v Uganda CACA No.10 of 1995, where the supreme court referred to R v Haviland (1983) 5 Cr. App. R(s) 109 and held as follows;

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"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal

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or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice."

5 This court is also guided by Kamya Johnson \flavamuno v Uganda SCCA No.l6 of 2000 where court held thau

> "it is well settled that the court of appeal will not interfere with the exercise of discretion, unless there has been a failure to exercise a discretion or failure to take into account <sup>a</sup> material consideration, or an error in principle was made. It is not sufficient that the members of the court would have exercised their discretion differently. "

It was the appellant's contention, that the learned trial Judge did not consider the mitigating factors and as a result passed a harsh and excessive sentence. While sentencing the appellant, the Learned Trial Judge held that; 15

> ool have heard both the mitigation and aggravating factors. I also appreciate that the convict pleaded guilty and hence did not waste court's time. However, the convict's actions were hideous to say the least. The victim was lucky to have survived as I believe the convict's intention was to kill him. I have considered the period the convict has spent on remand and I will now sentence him to 18 (eighteen) years imprisonment. The convict has a right of appeal against the


senterrce."

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It is clear from the above excerpt that the learned trial Judge considered the mitigating factors including that the appellant pleaded guilty and did not \,vaste court's time.

- 5 To settle the issue of consistency, we are aware that courts have imposed sentences of 18 years and more for the offence of aggravated robbery. In Ogrral Nelson & Ors v Uganda CACA No.606 of 2015 this court imposed a sentence of 19 years' imprisonment for the offence of aggravated robbery and in Bogere Asiimwe Moses & - 10 Ssenyonga Sunday v Uganda SCCA No.39 of 2016 [20f8] the Supreme Court upheld a sentence of 20 years imprisonment for the offence of Aggravated robbery. In Rutabingwa James v Uganda CACA No.57 of 20lt and Kavuma Robert v Uganda CACA No.265 of 2015, this court confirmed a sentence of IB years'imprisonment for

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15 the offence of Aggravated Robbery. Lastly, in Abelle Asuman v Uganda SCCA No.66 of 2016 the Supreme Court upheld a sentence of IB years imprisonment as one that was not harsh and excessive. Trial judges often rely on the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, which 20 prescribes a sentencing range of 30 years imprisonment to death for the offence of aggravated robbery.

In view of the Sentencing Guidelines, we find that the sentence meted out by the learned trial Judge was within the sentencing 25 range for the offence of aggravated robbery and was therefore neither harsh nor excessive. We find no merit in the notion that the learned trial Judge paid undue regard to the hypothesis that the appellant's intention was to kill the victim.


In the circumstances, we find that the Learned Trial Judge correctly exercised his discretion and therefore, we have no reason whatsoever to disturb the sentence of IB years'imprisonment.

5 This appeal lacks merit and is herewith dismissed.

We so order.

Signed and dated at Masaka thir6..fi, of .... ..2023

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15 Richard Buteera Deputy Chief Justice

Catherine Bamugemereire 25 Justice of Appeal

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Eva K. Justice of I