Niwamanya v Uganda (Criminal Appeal No. 76 of 2017) [2022] UGCA 64 (3 March 2022)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

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

## CRIMINAL APPEAL NO. 76 OF 2OII

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

NIWAMANYA GIDEON} APPELLANT

VERSUS

### UGANDA} RESPONDENT

(Appeal from the decision of the High Court of Uganda Holden at Kabale in Criminal Session Case No 76 of 2017 before Kazibwe Kawumi, J delivered on llh 1ctober 2016)

#### JUDGMENT OF COURT

The appe[[ant was charged, tried and convicted of murder contrary to sections 188 and 189 of the Penal Code Act, cap 120 laws of Uganda.

The facts are that the appellant and the deceased were police officers. 0n 17th May 2013 at Nteko Viltage, Nyabwishenya sub County in Kisoro

- 20 district the appeltant shot and murdered police officer No 58346 PC Musasizi Gitbert. The deceased was a police officer attached to Nteko police post in the Kisoro district. The appeltant had been invotved in a fight at a bar in Kikomo trading centre with one Kategana Apotto. The deceased attempted to settle the matter between the appellant and - 2s Kategana Apotto. The appellant was disarmed. He went to his home and picked a gun and [ooked for Kategana but did not find him. He found the deceased and shot him whereupon he ran away. Fottowing the gunshots, a search was mounted by security personne[ whereupon the appellant was arrested and confessed to the murder. The appellant was convicted - 30 on his own plea of guitty and was sentenced to 3l years and 6 months' imprisonment.

The appellant was dissatisfied with the sentence only and appeated to this court with leave against sentence only on one ground of appeal that:

# The learned trial Judge erred in law and fact when he sentenced the appellant to 31 years and 6 months' imprisonment which sentence is harsh and manifestly excessive in the circumstances.

At the hearing of the appeal, the appellant was represented by learned Counsel Mr Turyahabwe Vincent on state brief while the respondent was represented by learned Counsel Mr. Nkwasibwe Ivan, Chief State Attorney. Both Counsel addressed the court in written submissions which were filed on court record and judgment was reserved on notice.

## Submissions of the appellant's Counsel

The appellant's Counsel submitted that sentencing is a matter of the exercise of judicial discretion and the Court of Appeal ought not to 15 interfere with the exercise of that discretion unless the sentence imposed is illegal or excessive or so low or excessively so high as to occasion a miscarriage of justice (see Kiwalabye v Uganda; Supreme **Court Criminal Appeal No 143 of 2001).** Further, the appellant's Counsel submitted that though the offence of murder carries a maximum $20$ sentence of death, a sentence of 31 years and 6 months imposed on the appellant is harsh and excessive in the circumstances.

He contended that the appeal is based on the principle of consistency in sentences in light of previously decided cases with similar facts and circumstances and relied on Aharikunda Yustina vs Uganda; Supreme

- Court Criminal Appeal No 27 of 2015. Counsel further relied on Butali Moses & 7 others v Uganda; Court of Appeal Criminal Appeal No 225 of **2014** where the Court of Appeal sentenced each of the appellants to 13 years and 9 months' imprisonment for murder. Further in **Rwabugande v** - Uganda; Supreme Court Criminal Appeal No 25 of 2014, the Court of 30 Appeal upheld a sentence of 35 years' imprisonment imposed by the trial Judge. On further appeal to the Supreme Court, the sentence was reduced to 21 years' imprisonment.

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The appellant's Counsel submitted that in the circumstances of the appellant's appeal, the sentence of 31 years and 6 months is higher than the range of sentences imposed in cases of a similar nature. It was therefore harsh and excessive and he prayed that the sentence is set aside and an appropriate sentence imposed. He prayed that the court considers sentences previously imposed in similar matters.

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## 5 Submissions of the respondent in the reply.

ln reply, the respondent's Counsel submitted that the appellant was charged with murder which carries a maximum penatty of death. ln imposing the sentence, the learned triat Judge considered the mitigating and aggravating factors. These were the facts that the appettant was a

- young man of 24 years with a family, he was a first offender who pleaded guitty and had saved the court's time. He also considered the possibitity of reform upon release and the 3 % years that the appellant had spent on remand. Secondty the learned triaI Judge with this mitigating factors against the aggravating factors. The aggravating factors were the gravity 10 - of the offence of murder, the fact that the appellant was an officer mandated to keep the law but instead used his firearm unlawfutly. Secondly, the deceased was also a young man whose future was recklessly terminated by the appe[lant and the fact that the appettant had eartier on been disarmed in a scuffte but still ran back to the police barracks whereupon he picked another gun which he used to murder the 15 20 - deceased.

The respondent's Counsel submitted that this court and the Supreme Court have decided that an appettate court shoutd not interfere with a sentence imposed by a triat court unless the trial court acted on wrong

principte, or overlooked some material fact, or the sentence was manifestly harsh and excessive (see Livingstone Kakooza vs Uganda; SCCA No 17 of 1993). Counsel submitted that there was no ittegatity in the sentence and the sentence was neither harsh nor excessive considering the circumstances. ln the premises, he contended that the learned trial Judge did not act on any wrong principte in imposing the sentence. 25 30

With regard to the decision of Ahurikunda Yustina versus Uganda; Supreme Court Criminal Appeat No 27 of 2005, it is true that there is a need to provide a mechanism that woutd promote uniformity, consistency and transparency in sentencing which is actua[[y contained in the

- objectives of the Sentencing Guidetines. Further this court pronounced itsetf as to what the sentencing ranges were in murder cases in Muhwezi Bayon versus Uganda; Court of Appeal Criminat Appeat No 198 of 2013 when it hetd that the terms of imprisonment for murder of a single person ranged between 20 to 35 years of imprisonment and in exceptionaI circumstances, the sentence may be higher or lower. Further 35 40 - in Biryomumisho Alex vs Uganda; Court of Appeal Criminat Appeal No

5 464 of 2016, this court hetd that interfering with sentences is not a matter of emotions but rather of law. Unless the trial Judge flouted the principles of sentencing, it does not matter whether the members of the court would have given a different sentence if they had been the one trying the appe[tant.

!n the premises, the respondent's Counsel submitted that the appeltant advanced no tegat or justifiable grounds upon which the court may interfere with a sentence of 3l years and 6 months imposed by the triat Judge. He prayed that the appeat is dismissed for lacking merit. 10

## Consideration of appeaI

- We have carefu[[y considered the appeltant's appeaI on the issue of sentence onty which was argued with the leave of this court to appeaI against sentence on[y under the provisions of section 132 (1) (b) of the Triat on lndictments Act, cap 23 laws of Uganda. 15 - 20 It has consistently been hetd that an appetlate court may onty interfere with a sentence imposed by the triaI court if the tria[ court acted on a wrong principte or misdirected itsetf or overlooked a materiat factor. The court may atso interfere with a sentence that is manifestly excessive or too low as to amount to an injustice. !n Ogalo s/o 0woura v R (1954) 2l EACA the Appeltant appeated against a sentence of 10 years' imprisonment with hard [abour for the offence of manslaughter and the East African Court of AppeaI on the principtes appticabte to appeals against sentence hetd that: 25

The principles upon which an appettate court witl act in exercising its jurisdiction to review sentences are firmly estabtished. The Court does not atter a sentence on the mere ground that if the members of the court had been trying the Appettant they might have passed a somewhat different sentence and it woutd not ordinarity interfere with the discretion exercised by a triaI Judge unless as was said in James v. i?, (1950) l8 EACA 147,"it is evident that the Judge has acted upon wrong principle or overtooked some material factor". To this we woutd also add a third criterion, namety, that the sentence is manifestty excessive in view of the circumstances of the case

The facts of this appeal are not in controversy and the appetlant pleaded guitty as charged. ln imposing the sentence, the learned triaI Judge stated as follows:

5 0n 17 May, 2013, the convict who was a Potice Officer kitted another Potice Officer No 58346 PC Musasizi Gitbert using a gun assigned to him to perform his duties of keeping law and order.

He pleaded guitty to the charge of murder. The convict is a young man of 24 years with a family. He pleaded guitty to the offence and hence saved Court's time. There are no known previous convictions prior to this case. lt was submitted by his Counsel that the court exercises [eniency when determining the sentence.

The prosecution invited court to give him a deterrent sentence given that the offence is grave, he is an officer mandated to keep law and order which he did not do, and that the deceased was atso a young man whose future the accused terminated with recktess abandon.

I have considered the circumstances in which the offence was committed. The convict was disarmed in an earlier scuffle but stit[ ran back to the potice barracks and picked another gun used to kitt the deceased. Misuse of weapons by those entrusted to handte them in the keeping of law and order is inexcusable in a[[ circumstances.

I have considered the convict's age and the possibitity that he can reform on retease, the time he has spent on remand and the guitty plea that saved Court's time. I will not consider the death sentence that may be applicabte to the circumstances in which the offence was committed.

I sentence the convict to 35 years in prison. I witl subtract the 3 % years he has spent on remand. He witt serve 31 % years.

The question for consideration is whether the learned trial Judge acted on a wrong principle or misdirected himself or overtooked a material 30 factor that may aggravate or mitigate the sentence. We have carefu[[y considered the sentencing notes of the triat Judge as reproduced above.

We agree with the respondent's CounseI that the learned triaI Judge apparentty took into account a[[ the relevant factors before imposing the sentence. ln this appea[, the matter for resotution is whether the 3s sentence imposed by the triat Judge is consistent with sentences imposed in simitar matters and therefore the consideration is whether in tight of those sentences, the sentence imposed on the appellant is manifestty excessive.

Secondty, it is not sufficient to state that the court has taken into account 40 the fact that the appe[tant pteaded guitty, is a first time convict with no

s previous record, and is a young man with a family. The sentence imposed must demonstrate that that these facts mitigated the sentence by reduction of sentence when compared to cases where the accused did not plead guitty of was not young or a f irst offender. Suffice it to note that a severe penalty after a plea of guitty may dissuade future accused 10 persons from pleading guitty.

We have in the circumstances compared the sentence imposed on the appellant to those imposed for murder after a futltriaI in other cases and the tikety impact of the mitigating factors on sentences in other murder cases. We further agree with the triaI Judge's comments on the 1s aggravating factors.

ln Kajungu Emmanuel v Uganda; Court of Appeat Criminal Appeat No 625 o12014 this court hetd inter a/la that there is need to maintain uniformity of sentences in tight of the principte of equatity before and under the law enshrined in article 21 of the Constitution. Where age of the appellant is 20 concerned, in Kabatera Steven v Uganda; C. A. C. A No. 123 of 2001 (unreported)), this court hetd that the age of an accused person is a materiaI factor that may act as a mitigating factor (especialty where the convict is young):

We agree with the submission of the Counsel for the appettant that the learned 2s triat Judge shoutd have considered the age of the appellant at the time he committed the offence before passing sentence. He was a young offender and a long period of imprisonment would not reform him.

ln Kasaija Daudi v Uganda; Court of Appeal Criminal Appeat No 128 of 2008, 120141UGCA 47 the appeltant had been tried and convicted of two 30 counts of murder by the High Court and sentenced to tife imprisonment. His appeaI was against sentence on the ground that it was manifestty excessive, harsh and unfair in the circumstances. The appeaI was altowed and the sentence set aside and substituted with a sentence of 18 years'imprisonment on each count to be served concurrently.

3s ln Rwahire Ruteera v Uganda, Court of Appeat Criminal Appeat No 72 of 2011, the appeltant who was 42at the time of commission of the offence was sentenced to 40 years' imprisonment after conviction of two counts of murder. He had been found guitty of the murder of his wife and

5 stepdaughter. He was sentenced to 20 years' imprisonment on each count which sentence was to be served consecutively. This court found the sentence imposed to be appropriate but reduced it by the 5 years the appetlant had spent on pre-trial remand whereupon he was sentenced to l5 years'imprisonment on each count to be served consecutivety from the date of conviction. 10

ln Tumwesigye Anthony v Uganda; Court of Appeal Criminat Appeat No 46 ot 2012120141 UGCA 61 (l8th December 20141the Appettant had been convicted of the offence of murder and sentenced to 32 years' imprisonment. The Court of Appeat hetd that the sentence was harsh and manifestly excessive in tight of the fact that the appellant was a first offender and l9 years otd at the time of commission of the offence and reduced the sentence to 20 years'imprisonment.

ln Kasaija v Uganda; Court of Appeal Criminat Appeat No 128 of 2008, [20141 UGCA 47 the appellant had been convicted of two counts of murder

- and sentenced to tife imprisonment by the High Court. His appeat against sentence was altowed on the ground that it was harsh and manifestty excessive. The appetlant was a first offender and was 29 years otd at the time of commission of the offence. He had spent two and a half years in pre-trial detention before his conviction. This court imposed a sentence 20 - of 18 years'imprisonment on each count to be served concurrentty in the circumstances. 25

ln Atiku Lino v Uganda; Criminal Appeal No 0041 of 2009 [20151 UGCA 20 (6th June 2016), the Appettant murdered the deceased with a cutlass by cutting her several times causing her death. He was convicted and sentenced to life imprisonment and on appeat from the High Court, the sentence was reduced from tife imprisonment to 20 years'imprisonment and the sentence was mitigated among other factors by the age of the appellant who committed the offence when he was 3l years otd.

The facts of this appeaI are stightly different in that the appeltant pleaded guilty. He was examined and found to be 24 years otd at the time of commission of the offence. Secondty he was a first offender and was remorseful and did not waste the time of court. He was a family man with 3 chitdren betow the age of 10 years. Further facts which were not 35

s disputed was the fact that the appetlant had been drinking and he was apparentty under the inftuence of alcohol at the time of commission of the offence. This was not considered as a possible factor to diminish the offence because the appetlant pteaded guitty to the offence as charged. White the offence was a grave offence, and we agree with the aggravating

10 factors considered by the judge, it is clear from the above precedents that a sentence of 35 years was manifestty excessive.

We accordingty altow the appeal on sentence and set aside the sentence of imprisonment of 31 years and six months imposed by the trial Judge. Exercising the powers of this court under section ll of the Judicature Act,

1s we would consider a sentence of 25 years' imprisonment appropriate in the circumstances. From that sentence, we would deduct the 3 years and 6 months the appeltant had spent on pre-triaI remand and sentence him to 21 years and 6 months which sentence shatt commence from the date of his conviction and sentence on 1()th October 2016.

Dated at Mbarara the -Y-day 20 of tI\ar<t 2022

rick tende a a

J ustice Appeal

Catherine Bamugemereire

Justice of Appeal

Christopher Madrama

Justice of Appeal