Ngabirano v Uganda (Criminal Appeal 501 of 2015) [2024] UGCA 206 (9 August 2024)

#### THE REPUBLIC OF UGANDA

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

#### CRIMINAL APPEAL NO. 0501 OF 2015

(Coram: Buteera, DCJ; Gashirabake & Kihika, JJA)

# NGABIRANO AKIM::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# $UGANDA:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\cdots:\$ (Arising from the decision of the High Court at Kabale before Hon. Judge Michael Elubu delivered on 5/08/2014)

#### **JUDGMENT OF COURT**

- [1] The Appellant was indicted and convicted of the offence of Aggravated Robbery contrary to section 285 and 286 (2) of the Penal Code Act and sentenced to 22 years' imprisonment on a plea of not guilty. - [2] The appellant, being dissatisfied with the decision of the trial court, filed this appeal against sentence only on two grounds;

A] The learned trial Judge erred in law and fact when he sentenced the appellant without considering some mitigation factors in favour of the Appellant.

B] That the learned trial Judge erred in law and fact when he dispensed a harsh and excessive sentence to the appellant of 22 years without considering his remorsefulness hence occasioning a miscarriage of justice

#### Background

- [3]Thefactsofthecaseasdiscernedfromtlrerecordarethatonthe nightofl"tJuly2OIl,aoneMONDAYARYAIJA,thecomplainant had a sick mother who had been admitted at Kigongi Clinic in Kigongi cell Central Division, Kabale Municipality' - [4] At about 11:40 pm the complainant went to check on his mother but foundthedoortothegateoftheclinicclosed. Hemadeaphonecall to her sister, a one Tugumisirize Betty who was attending to their sick mother at the clinic to open the gate. As he waited for his sister to open for him, the appellant, grabbed the complainant held his mouth tightly and, in the process, other men came from behind searched his pockets and robbed the complainant of UGX 15O,O0O/ =. In the process of being robbed, the complainant was hacked by the appellant with a panga' - [5] As people from the clinic came to open for the complainant' the robbers disappeared and ran away' Opposite the gate of the clinic' there was light generated from Hydro Electricity power which enabled the complainant to identify the appellant properly' - [6] The complainant described the attacker (appellant) as a man who was putting on a white Warid Telecom cap and a white shirt' The followingdaythematterwasreportedatKabalePoliceStationand investigations into the case commenced' - [7] The complainant was examined at Kabale Referral Hospital on (PF 3) anditwasfoundthatthecomplainthadcutwoundsontheright upper limb arnong other injuries, the injuries were classified as grevious harm.

- [8] On the 8tn July, 20 I 1 while investigations were still in progress' the complainant met the appellant around the same clinic in Kigongi' He waswearingthesameclothesthatheworeonthedayoftherobbery. Thecomplainantimmediatelyalertedthepolice,asaresultofwhich the appellant was arrested and detained at Kabale Police Station. - [9] The appellant was examined on PF24' and was found to be an adult aged, 29 years and mentally sound' Following the arrest' the appellant was indicted with the offence of Aggravated Robbery' He was found guilty of the charges, convicted and sentenced to 22 yeats' imprisonment. Being aggrieved, the appellant appealed to this court challenging the decision of the trial court'

#### Representatlons

[Ol At the hearing ofthe appeal, Mr. Geoffrey Masereka appeared for the appellant while Mr. Joseph Kyomuhendo, Chief State Attorney appearedfortherespondent'Bothpartiesflledwrittensubmissions which were adopted with the leave of court' At the hearing the appellantsoughtleavetoappealonSentenceonlyandthisleavewas granted.

### Grounds ofthe APPeal

# llll GROUND I

ThelearnedtrialJudgeerredinlawandfactwhenhesentencedthe appellant without considering some mitigation factors in favour of the APPellant'

#### GROUND 2

That the learned trial Judge erred in law and fact when he dispensed aharshandexcessivesentencetotheappellantof22yearswithout

considering his remorsefulness hence occasioning a miscarriage of justice.

#### Appellant's submisslons

- ll2l Counsel for the appellant argued both grounds concurrently' counsel faulted the learned trial Judge for overlooking the principle of consistency in sentencing. Specifrcally, he contended that the learnedtrialJudgeimposedanoverlySeveresentenceconsidering the mitigating circumstances. - t13l Counsel averred that the learned trial Judge's focus was more on Settinganexampletodeterothersratherthanconsideringall mitigating aspects. He submitted that the sentence imposed was unduly harsh, and therefore, prayed for the appeal to be granted' and the sentence substituted for a more lenient one'

#### Respondent's submlesions

- t14]Inreply,Counselfortherespondentaverredthatthelearnedtrial Judge properly evaluated the evidence and that the sentence of <sup>22</sup> years, 8 months and 12 days was neither harsh nor excessive' - tlSl Counsel argued tl.at the Judge duly considered both mitigating and aggravating factors presented in the appellant's submissions and after a meticulous evaluation, the Judge exercised sound discretion in imposing a 22-year prison term for the appellant' Regarding the issue of uniformity in sentencing, counsel argued that the imposed sentence of 22 years and 8 months and l2days' is in line with establishedsentencingguidelinesanddidnotSurpassreasonable limits. Counsel prayed that the appeal be dismissed and the sentence uPheld.

## Court's Consideration of grounds 1 and 2

This is an appeal against sentence only. The principles upon which $[16]$ an appellate court should interfere with a sentence were considered by the Supreme Court in Kyalimpa Edward v Uganda, [2018] UGCA 8 where the supreme court while making reference to **R v Haviland** (1983) 5 Cr. App. R(s) 109 and held as follows;

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

[17] As we consider grounds of appeal together, we shall bear in mind the While **Edward** (supra). principle enunciated in **Kyalimpa** sentencing, the learned trial Judge stated as follows;

"The convict shall be treated as a $1^{st}$ time offender. The convict has been on remand since July 2011 which is almost 3 years. The court notes his age and family situation. But I have noted that even at this late stage the convict shows no remorse. The convict used a deadly weapon dangerously and could have killed the victim, who was injured. Robbery is a serious offence carrying a maximum sentence of death. It is an offence that is rampant in this community. In the result therefore the offence must be punished and those of a like kind deterred from acting in a similar manner. In the result I find a sentence

of 25 years appropriate. This shall be reduced by period on remand which is 3 years. Convict will serve 22 years."

[19] In our view, the learned trial Judge took into consideration the mitigating and aggravating factors of the case. In Aharikundira v. Uganda SCCA [2018] UGSC 40 the Supreme Court held that.

"there is a high threshold to be met for an appellate court to interfere with the sentence handed down by a trial Judge on the grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion; therefore, perfect uniformity is hardly possible. The key word is 'manifestly excessive'. An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation."

- [20] In this case, the appellant was charged with the offence of Aggravated Robbery, the maximum penalty for the offence of Aggravated Robbery under section 286 (2) of the Penal Code Act is death and a sentence of 22 years' imprisonment is within the range of sentences the High Court may impose. Furthermore, in previous cases, courts have meted out similar or more sever sentences for the offence of Aggravated Robbery. - [21] In Ojangole Peter v Uganda, [2019] UGSC 20, the Supreme Court found that a sentence of 32 years' imprisonment imposed by the Court of Appeal on a convict of aggravated robbery was appropriate. - [22] In Basikule Abdu v Uganda, CACA No.516 of 2017, this court upheld a sentence of 20 years' imprisonment for the offence of Aggravated Robbery as appropriate. The victim was robbed of UGX

2OO,0O0/= and the Court of Appeal while upholding the sentence of 20 years' imprisonment found that it was not a harsh and excessive sentence.

- [23] ln Gutoba Rogers v Uganda, CACA No' 57 of 2O13' the Court of Appeal considered the sentence of 35 years on account of aggravated robbery as appropriate from which it deducted I year and 5 months the appellant had spent on remand and sentenced the appellant to <sup>33</sup> years and 7 months' imPrisonment' - pal h the circumstances, we find that the learned trial Judge did not deviate from the sentencing trends for the offence of Aggravated Robbery. WefindthatthelearnedtrialJudgediligentlyconsideredthe appellant's mitigating and aggravating factors and deducted the period spent on remand. The sentence imposed was neither harsh nor excessive and we find no reason justifying interference with the sentence imposed by the learned trial Judge' We, therefore' uphold the sentence.

In conclusion therefore, we find no merit in the appeal and hereby dismiss it

fiuU 2o24 Dated this day of C\p.

HON. JUSTICE RICHARD BUTEERA

cenive.

$\frac{1}{\sqrt{2}}\left(\frac{1}{\sqrt{2}}\right)^{\frac{1}{2}}\left(\frac{1}{\sqrt{2}}\right)^{\frac{1}{2}}$

HON. JUSTICE CHRISTOPHER GASHIRABAKE

| HON. JUSTICE JOHN OSCAR KIHIKA | | |--------------------------------|--|

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