Okello alias Ongora and Another v Uganda (Criminal Appeal 338 of 2017) [2023] UGCA 145 (18 May 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA CRIMINAL APPEAL No.0338 of 2017

Coram

lEgonda-Ntende, Bamugemereire & Mulyagonia JJnl

#### 1 . OKELLO DOUGLAS alias ONGORA ISAAC

2 . ODONGO FELIX alias HASSAN AI'I'ELLANT

#### 10

#### VEITSUS

#### UGANDA RESPONDENT (Appeal from The decision of Dr Winifred Nabisinde in High Court Criminal session Case No.0111 of 2017 delivercd on 28rh July 20'17 at Lira)

Criminal Lazo - Murder C/s 188 and'189, Attempted Murder C/s 204 of Tlrc Pennl Code Act - Appenl against Sentence only - Hnrsh nnd excessi?e sentence .

# JUDGMENT OF THE COURT

### <sup>I</sup>ntroduction

Thc appellants, Douglas Okello and Felix Odongo wcrc both indicted and convictcd of thc offcnce of Murder and Attcmpted

25 Murder contrary to scctions 1UU,-189 and scction 204 of thc Pcnal Code Act, Cap 10 Laws of Uganda rcspectivcly. They wcrc cach sentenced to 35 ycars for thc offence of Murder and 25 years imprisonmcnt for thc offcncc of Attcmptcd Murclcr, rcspectively. Thc scntences wcrc to run concurrcntly.

r.-l 00

#### Background

A brief background is that on 23'd December 2016, at Ogili Cell, Alira Parish, Aduku Subcounty in thc Apac District, the appellants murdered Maxwcll Awal and attcmpted to murdcr

- 5 Sophia Ogwal. The dcccased and the appcllants werc paternal cousins whose respective families had long-standing land wranglcs. Douglas Okcllo was a serving army officer in the Uganda Pcoplc's Defcnce Forccs at Mbarara. Armcd with an SMG rifle, he travelled from Mbarara to Apac where hc met - with Odong. On 23.d Dcccmber 2016, Vivian Adong thc sister to the deceascd was ambushecl by thc appellants whilc shc was riding a bicycle. Thcy dragged her off to the bush. The assailants, who included both appcllants, wcrc both armcd with a gun, panga, and iron bar. Vivian Adong managcd to cscapc and when she got home, she informcd hcr family that she had been ambushed by thc appellants. The fathcr, in turn, rcportcd the case to the Police at Aduku Policc Station. 10 15

20 25 On the fateful evening, the deccascd went to untethcr animals which had becn grazing in a ficlcl ncar thcir homc. Flc was suddenly shot by the 1il appellant who was hiding in a nearby bush. The gunshot was heard by Sophia Ogwal the mother of the deceascd who thcn run to thc scenc and spottcd thc-l't appellant. The l.tappcllant hit Sophia Ogwal on thc hcad with the butt of a gun. The 2nd appellant cut Sophia with a matchet, and she startcd blecding profuscly, and bccamc unconscious.

When Sophia gained consciousncss at around 9pm, shc found

c{ OJ the deceased lying bcside her with his pair of trousers rcmovcd. Hc had been shot on the head and the bullct had exited from the mouth. The appcllants hacl alrcady flccl thc sccnc. Sophia rcported the incident to the ncighbours and evcntually policc.

- 5 When the appcllants were arrcsted and inclictcd, they did not have any lawful clefcncc so thcy admittccl to thc crimcs.'l'hcy wcre subsequcntly convicted on their own plcas of guilty. The Learned Trial Judgc consequently sentcnced cach of thcm to <sup>35</sup> years for the offcnce of murder, and 25 ycars imprisonmcnt for attempted murdcr, respectively. The scntcnces were to run concurrently. Dissatisfied with the sentcncc, the appcllant appcalcd to this court against scntcncc only on onc ground which stipulatcs as follows: 10 - .l . The Learncd Trial Judgc crrcd in law and fact by imposing - 15

a manifcstly harsh ancl cxccssivc scntcnce against thc appellants.

#### Representation

At thc hearing of the appeal, thc appcllant was rcprcscntccl by Mr Okot Douglas Odyek whilc the respondent was reprcscnted

by Ms Fatinah Nakafeero, a Chicf State Attorncy. Thc appcllant was physically prcscnt in court. I-lis counscl praycd for ancl was granted leave of this court to appcal against scntence only. Both counsel relied on written submissions which shall bc considcrcd by this court. 20

### Submissions for the Appellant

Counsel for the appcllant submitted that the Lcarned Trial judge ought to havc given adequate weight to the mitigating factors. He faulted the Learncd Trial Judgc for not considering

- 5 the fact that the appellants wcrc first timc offendcrs who wcre remorseful and did not waste court's time by pleading guilty. The appellants werc of youthful being agcd 27 ycars and 20 years, rcspcctively. In mitigation thc-l't appcllant plcaded that he was a married man with 2 children and a wife. He also stated - that he was the eldcst of 3 siblings who provided for the wellbeing of their ailing mother. Counsel for thc appcllant furthcr faulted the Leamed Trial Judge for failing to consider thc principle of uniformity. He relied on judgments passcd by this court in which the court-imposed sentcnccs lower than 35 years' 10 - imprisonment for the offence of Murder. Finally, counsel for the appellant invited this court to allow thc appeal, sct aside the harsh and exccssivc sentcnccs and to substitutc thcm preferably, with sentcnces of 17-and Z}ycars' imprisonment. 15

#### Submissions for the Respondent

Counsel for the respondent opposed thc appeal in its entircty. His contention was that the Learned Trial Judge madc <sup>a</sup> comprchensivc considcration of both the mitigating ancl aggravating factors. Counsel cmphasizcd that the Lcarned Trial Judge took into consideration the remorsefulness of the appellants, their agc, family rcsponsibilitics and thc fact that they were first time offenders. Counscl also contcndcd that thc 20 25

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Lcarncd Trial Judgc considercd thc aggravating factors, that it was a premeditatcd gruesome killing coupled with mass brutality, savagcry and terror causcd in thc family of thc deceased. Counscl thcn praycci to this court to uphold thc sentence and dismisses the appcal for it was ncither illcgal nor manifcstly excessivc.

#### Consideration by the Court

Wc arc alive to thc duty of this court as a first appcllate court, to subject thc cvidcncc and all thc matcrial that was availablc to the trial Judge to a frcsh and exhaustive scrutiny. We arc entitled to draw our own conclusions and infcrcnccs, bearing in mind, however, that wc did not havc thc opportunity to scc thc witnesses testify. Rule 30(1)(a) of the |udicature (Court of Appeal Rules) Directions, S. I 13-10, See also; Fr. Narcensio Begumisa & Ors v Eric Tibebaaga SCCA No.17 of 2002, Kifamunte Henry v Uganda SCCA No. 10 of '/.,997, The Executive Director of National Environmental Management Authority (NEMA) v Solid State Limited SCCA No.15 of 2015 10 15

We do remind oursclves that this appeal is against sentence only. It is trite that an appellatc Court will only intcrfcrc with <sup>a</sup> sentcnce imposed by thc trial Court if it is evidcnt that the trial court acted on a wrong principlc or took into consideration factors which they ought not to takc into considcration or ovcrlookcd matters which thcy ought to havc taken into consideration or passcd a scntcnce which was illcgal or 20 25

(unreported) and Pandya Vs R [195[ EA 336.

Ln

manifestly excessive or so low as to cause an injusticc. See Sekandi Hassan v Uganda SCCA No.25 of 2019, Livingstone Kakooza v Uganda SCCA No. 17 of 7993 [unreported] and fackson Zita v Uganda, SCCA No. 19 of 1995.

5 Thc appellants were convicted on thcir own pleas of guilry and were sentenced to 35- and 25-years imprisonment for thc offence of Murdcr and Attcmptcd Murdcr, rcspectivcly, to run concurrcntly. Thc appcllants found this scntence to be harsh and excessive and also argued that the Learned Trial Judgc did not takc the mitigating factors into consideration. 10

In her sentencing remarks thc Learned Trial Judge reasoncd that,

"Thc Statc Attorncy in hcr submissions statcd that thcrc are no previous known records against the convicts; this court will thercfore trcat each of them as first offcnders. In my vicw, having takcn cognisancc of the circumstanccs under which this offencc was committed it is my finding that this was a senseless killing that should havc bcen avoided; the convicts hacl at thcir disposal other lawful means of resolving any misundcrstanding hc (read thcy .sic) may have had with thc dcceased or victim, but instcad chose to takc thc law in thcir own hands with such devastating results. It is also clear from the evidencc that the convicts are both adults of sound mental status and did what he (reacl thcy sic) clid dclibcrately. I havc also considered the impact it would have on both families and

(o OJ a\_ the community generally. I havc also noted that in such a case, the maximum sentencc would have becn thc cleath penalty; howcvcr, I find that this is thc rarcst of l"l.rc rarc sentcnces and must be handcd down in extremc cascs. I havc also thought about the family and the consequenccs this dcath will havc on thcm. I thcrcforc fincl that thc convicts bcing adults need... (sic) a long and cleterrent custodial scntcncc to enablc cach of thcm to rcthink about his livcs. Whilc thc starting ranl;c in tcrms of ycars wclulcl bc at least (35) ycars imprisonmcnt, that being the casc, I havc also takcn into account thc age of the deccascc'l and thc convict. 1'aking into account all thc circumstanccs of the casc as noted above, ancl thc fact that thcse convicts have been on pre-trial remand for just one month, but readily aclmitted thcir guilt at thc first availat'rlc opportunity and appeared rcmorseful for their actions, I find that while I would havc passed the death penalty in this casc, but according to our laws, the plca of guilty will work as a mitigating factor in thcir favour. Taking into account the fact that both convicts are still young men who havc rcaliscd thcir folly ancl pleaclcd guilty kr thcir crimes at the first opportunity, I will exercise a dcgrcc of leniency. For that reason, despite the Plea of guilty, I fincl that a scntcncc of (35) thirty-fivc ycars imprisonmcnt will be appropriate for Count 1.... I thcrefore find that thc aggravating circumstances in this count also outweigh the mitigating circumstanccs. Both convicts dcscrvc a scrious

l- o) punishment for thcir role in this offcncc. All in all, I find that a sentencc of 25 (twenty-fivc) ycars imprisonment will be appropriate for each of thcm."

5 Wc havc cvaluated thc scntencing rcmarks of thc lcarnccl trial Judgc and find that shc did not take into considcration all thc aggravating and mitigation factors. Wc not that shc was elaboratc and rcasoncd and that the lcarned trial Judgc cannot be faulted for laying a basis for thc scntcnce shc passcd. However, we note that the learned trial Judge did not takc into considcration the fact that thc appcllants wcre first offcnclcrs who had pleaded guilty. Had thc learncd trial Judgc taken cognisance of the pleas of guilty and all antecedents, shc ought to havc found that a scntcncc of 35 ycars imprisonmcnt for a first offender who pleadcd guilty was harsh and exccssivc. This court will bear this in mind and will also be guided by the sentenccs that havc bccn passcd in prcvious cascs basccl on similar facts. This is necessary in ordcr to maintain parity and 10 15

consistency in sentcncing. In Mbunya Godfrey v Uganda SCCA No. 04 of 2011,, thc appcllant had bccn scntencccl to clcath for thc murder of his wifc. The Supremc Court obscrvccl that; 20

"We arc alive to thc fact that no two crimes arc idcntical. Howcvcr, we shoulcl try as much as possiblc to havc consistcncy in sentencing". See also Aharikundira Yusitina v Uganda SCCA No. 27 of 2075.

Wc shall evaluate thc scntcncing rangcs of both offcnccs separatcly, starting with the sentencc of 35 ycars' imprisonment 25


for the offcnce of murder. In Stephen Wamboya v Uganda CACA No.005 of 2017, this court rcduccd a 25-ycar prison scntencc for thc offcnce of murdcr to 20 years cvcntually arrivcd at a sentencc 16 ycars upon subtracting the timc that the appellant had spcnt on remancl.

In Atiku Lino v Uganda CACA No.0041 of 2009, this court sct aside a scntence of life imprisonment for the offcncc of Murder and rcplaccd it with 20 ycars' imprisonment aftcr taking into considcration thc mitigating factors in thc casc.

- In Tuhumwire Mary v Uganda CACA No.352 of 201,5 this court reduced a 25-ycar sentence for thcoffcnceof Murclcr to 10 ycars. this court considcrcd the fact that thc appcllant ptcac{ccl guilty at the start of thc trial and that shc had a family to look after. 10 - In Onyabo Bosco v Uganda CACA No.737 of 2014, the appellant was indictcd and convictcd of the offcnce of Murdcr and sentcnccd to 45 ycars imprisonmcnt. On appcal, this court reduced thc scntcncc to 20 ycars' imprisonmcnt for thc offcncc of Murdcr. 15

In Ntambi Robert v Uganda CACA No.334 of 2079, this court

found that a scntcncc of 20 ycars for thc offcnce of Murclcr was neithcr harsh nor cxcessivc. 20

For the offencc of attempted murder, the sentencing rangcs are seen in, Mwesigwa ]ohn & 3 Ors v Uganda CACA No.164 & 394 of 2074 whcre this court recluccd a scntencc from 20 years'

imprisonment for the offcncc of Attcmpted Murdcr to 7 years imprisonment. 25


In Mohammed Yasin Sekajolo v Uganda SCCA No.18 0f 1999 the Supreme Court set aside a sentcnce of 8 ycars for the offcncc of Attempted Murder and replaced it with 6 years' imprisonmcnt.

- We note that the learncd Judgc in hcr sentcncing rcmarks did not seem to fully appreciate the importance of pleas of guilty and did not consider thc youthful age of thc offendcrs. Wc, on the othcr hand take cognisance of the fact that both appcllants pleaded guilty and redccmed the amount of timc a full trial - might have takcn. We notc also that A1 was only 27 ycars whilc ,A.2 was just 20 ycars at thc time. A1 left two young children. A2 was a student who was described as,'having been caught in the web'. They had each spcnt 6 months and 3 days in pre-trial detention. We have considered the abovc decisions of the appellate courts for similarly placed offences. Clearly thc 10 15 - sentences of 35 years and 25 years mctcd out, werc cxcessivc and out of rangc. We thercfore sct aside the scntences of 35 ycars and 25 years imprisonment passed against each of the two appel lants. - When an accuscd person pleads guilty, the court ought to bc seen to exercise lcniency. A discount on a sentence reflects thc fact that there has been no need for a full trial and that timc and expenses have been savcd and, in particular, victims of crimc and witnesses have bcen spared the trauma and anxiety of having to givc evidencc and to bc cross-cxaminccl. And, thc witnesses are spared the ordeal of reliving tragic cvcnts. 20 25

O t--l Therefore, offcnders who admit guilt should benefit from pleas of guilty by getting up to a third or cvcn half, off their scntcncc potential scntcnccs. Trial courts should always cxcrcisc this mandate each time they rccord a plea of guilty. Clcarly if someone is not a first offender, thcy cannot benefit fully but can still have somc of thcir jail timc discountcd.

Under section -11 of the Judicature Act this court is clothcd with thc Jurisdiction to pass fresh scntcnccs against thc two appellants. Bcaring in mind the fact that thc two appcllants pleaded guilty, were youthful first offenders, and had no previous rccord of wrong doing, wc find a sentence -15 ycars' imprisonment for the offencc of Murdcr and 8 ycars' imprisonment for the offencc of Attemptcd Murder appropriate in thc circumstances. From thcsc wc shall dcduct the time spent on rcmand. 10 15

Each of the appellants had spent 6 months and 3 days on remand thereforc this period will bc dcductcd from thcir final scntcnccs

In the result the two appellants, Douglas Okello and Fclix Odong will each scrve a sentcncc of 14ycars, 5 months and 27 days' imprisonment, for the offcncc of Murder c/s 188 ancl 189 of the PCA and cach will also servc 7 years, 5 months and 27 days' imprisonmcnt for thc offcncc of Attcmptcd Murdcr c/s 187 and 190 of thc PCA; respectively. Each of the scntences shall 20

run concurrently from the date of thcir conviction which was 28.7.2017. 25

rl rl UD Dated at Gulu this $\mathcal{A}$ day of $\mathcal{A}$ $\cdots \cdots \cdots \cdots 2023$

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FREDRICK EGONDA-NTENDE, JUSTICE OF APPEAL

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**CATHERINE BAMUGEMEREIRE,** 25 JUSTICE OF APPEAL

IRENE MULYAGONJA JUSTICE OF APPEAL

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