Omirambe v Uganda (Criminal Appeal 599 of 2015) [2024] UGCA 76 (27 March 2024)

# <sup>5</sup> THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MASINDI

(Coram: Richard Buteera (DCJ), Hellen Obura & lrene Mulyagonia JJA)

#### CRIMINAL APPEAL NO. 599 OF 2015

#### 10

### OMIRAMBE CHARLES APPELLANT

#### VERSUS

### UGANDA RESPONDENT

(Appealhom the decision of the High Couft at Masindibefore Hon. Justice Rugadya Atwoki J in High Court Crlmrnal Sesslon Case No. 119 of 2009 dated 8h September,2010)

#### JUDGMENT OF COURT

The appellant was indicted and convicted on his own plea of guilty of the offence of aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act and was subsequently sentenced to 10 years imprisonment by the High Court at Masindi (Rugadya,J)

#### 20 Background to the Appeal

The facts of this case as found by the trial Judge are that on the night oi 16/01/2009 at Copelow village, Kiryandongo Sub-County, Masindi District, the appellant and his accomplices attacked Tiko Jesca the wife of Nyakunu Amos and demanded for money. They beat her up using sticks and deadly weapons. She refused to hand over the money to them. They broke into her bedroom and therefrom robbed a bicycle, house hold items like plates

25 30 and cups, radio, brief case, weighing scale, bag of clothes and other items. They were identified at the scene and the matter was reported to police. The police went to the home of his accomplices and recovered the stolen items. lnvestigations revealed the identification of the appellant and he was also anested. The recovered items were exhibited and the appellant and his accomplices were charged with the oflence of aggravated robbery. The appellant

<sup>5</sup> pleaded guilty to the offence and he was convicted on his own plea. He was sentenced to 10 years imprisonment. Being aggrieved by the sentence, he has appealed to this Court on one ground namely that;

> "The learned trial Judge erred in law and fact when he imposed an illegal and ambiguous sentence on the appellant thereby occasioning a miscarriage of Justice."

#### Representation 10

At the hearing of this appeal, Mr. Mbalirwe Mohammed represented the appellant on State Brief while Mr. Kulu ldambi Assistant Director Public Prosecution from the Office of Director Public Prosecutions represented the respondent. The appellant was physically present in Court.

Counsel for the appellant sought leave to appeal against sentence only which was granted. Both Counsel informed court that they had filed written submissions which they prayed to be adopted. 15

#### Appellant's Case

On the first limb of the ground, it was submitted for the appellant that in arriving at the sentence of 10 years imprisonment, the learned trial Judge did not take into account the period the appellant had spent on remand. Counsel cited Rwabugande Moses vs Uganda, SCCA tVo. 25 of 2014 and submitted that the requirement of arithmetical reduction of the time a convict spends on remand from the sentence imposed by the sentencing court stems from Article 23 (8) of the Constitution. To buttress his submission, he relied on Kaiooba Vesencra 20

vs Uganda, CACA No.0118 of 2014where this Court held that the decisionin Rwabugande Moses ys Uganda (supra) was an attempt to interpret Article 23(8) of the Constitution for purposes of its application by the trial courts in taking into account the period that the appellant had spent on pre{rial detention prior to his conviction and sentence.

<sup>5</sup> Regarding the second limb on ambiguity of sentence, counsel submitted that after the learned trial Judge noted that the appellant had been previously convicted and was serving a sentence of 15 years, he did not state whether that sentence was to run concurrently with the 10 years imprisonment sentence as was the case for the appellant's co accused Ruva Godfrey. Counsel prayed that this Cou( exercises its powers under section '1 '1 of the Judicature Act and pronounces that the sentences run concurrently. 10

ln conclusion, counsel prayed that this Court finds the sentence imposed against the appellant illegal and ambiguous and substitutes it with an appropriate sentence taking into account the period the appellant spent on remand.

#### Respondent's Reply

ln response to the first limb of the ground, counsel for the respondent referred this Court to page 17, line 1'1 of the court record and he submitted that not only did the learned trial Judge take note of the period the appellant had spent on remand, but he also arithmetically deducted it. He also referred to the cases of Ssetumba vs Uganda, CACA No. 046 of 2020 and Okuja Francis vs Uganda CACA No. 144 of 2014whose facts are similar to those in this case and the appellant in that case was convicted on his own plea of guilty and sentenced to 15 years imprisonment. On appeal to this Court, his sentence was reduced to 10 years imprisonment 15 20

Regarding ambiguity, counsel submitted that it was within the discretionary powers of the learned trial Judge not to allow the appellant to serve concunently given the fact that he was a habitualoffender. He argued that had it been the intention ofthe learned trialJudge that the

appellant serves the sentences concurrently, he would have stated it clearly in his judgment. Further, that it is not a general rule that since the appellant's co accused served concunently and were released it should also apply to him. Counsel relied on section 2 (2) of the Trial on lndictments Act to suppo( his submission. 25

<sup>5</sup> He prayed that court finds the sentence imposed against the appellant neither illegal nor ambiguous given the fact that the appellant was a habitual offender and did not learn any lessons from the previous sentences imposed on him. He further prayed that this ground be dismissed for lacking merit.

#### Court's consideration

As a first appellate court we are enjoined to re-evaluate the evidence of the entire case and come to our own conclusion on findings of fact and Law. See; Rule 30(1) of the Judicature (Court of Appeal Rules) Directions; Bogere Moses ys Uganda, Supreme Court Criminal Appeal No.1 of 1997. 10

The appellate court in exercising its power to review sentences is governed by the principle cited in Khito Senkula vs Uganda, SCCA No. 24 of 2001thal;

" ...in exercising its iurisdiction to review sentences, an appellate couft does not alter a sentence on the mere ground that if the members of the appellate courl had been trying the appellant they might have passed a somewhat different sentence; and that an appellate courl wilt not ordinarily inteiere with the discretion exercised by a trial judge unless, as was said in James -vs' R (1950) 18 EACA 147, it is evident that the judge has acted upon some wrong principle or over-looked some material factor or that the sentenceis harsh and manifestly excesslye in view of the circumstances of the case. "

On the first limb of the ground of this appeal, Counsel for the appellant submitted that the trial Judge during sentencing did not take into account the period the appellant had spent on remand. Article 23 (8) of the Constitution enjoins court while passing sentence to take into account the period a convict spent in lavrrful custody prior to completion of his or her trial. 25

<sup>5</sup> Failure to do so, renders the sentence passed illegal. See; Rwabugande Moses vs Uganda (supra).

We note from the sentencing proceedings at page 17 of the record of proceedings that the learned trial Judge stated as follows;

'l note that robbed properly was recovered, I also noted and taken into account the period that they have spent 1 year and 5 months on remand were paft of this offence. ..."(sic)

ln our considered view, the literal interpretation of the above wording of the sentence demonstrates that the learned trial Judge was aware of the period of 1 year and 5 months the appellant spent on remand and he had considered it. lt did not have to be an arithmetic deduction as argued by counsel for the appellant. ln any event, the sentence in this appeal was imposed on 08rh September, 2010 before the decision in Rwabugande Moses vs lJganda (supra) which was made on 3'd March, 2017.tNe are alive to the fact that the sentencing regime before Rwabugande Moses vs Uganda (supra) did not require the court to apply a mathematical formula while taking into consideration the time spent on remand. 15

See; Kizito Senkula vs lJganda, SCCA ItJo. 24 of 2001; Kabuye Senvawo vs Uganda, SCCA IVo. 2 of 2002; Katende Ahmed vs Uganda, SCCA IVo. 6 of 2004 and Bukenya Joseph vs Uganda, SCCA ItJo. 17 of 2010. 20

ln Abelle Asuman vs lJganda, SCCA ttto. 66 of 2016lhe Supreme Court stated as follows:

"Where a sentencing Court has ctearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be intelered with by the appellate Couft onty because the sentencing Judge or Justlces used different words in thet iudgment or mlssed lo state that they deducted the period spent on remand. These may be issues of style for which a lower courl would not be faulted when in effect the coul has complied with the Constlutional obligation in Alicle 23(8) ot the Constitution." 25

<sup>5</sup> Guided by the above decided cases, we accept counsel for the respondent's submission that the learned trial Judge took into account the period of 1 year and 5 months the appellant had spent on remand and we therefore find no reason to fault him. ln the result, we find no merit in this limb of the ground of appeal.

Regarding ambiguity of the sentence imposed, we note that the learned trial Judge while sentencing the appellant stated as follows; 10

"The state strongly expressed that they ought to be given a maximum penalty and this is death. The reason were that these are serlous offences, State told coutt that A3 is sevinq a sentence of imprisonment of 15 vears for the offence while A2 has a previous conviction for a minor lrespass. Neither their counsel nor the two denied the sentence of previous criminal record as stated by the state. I therefore take it thal those are not first offenders. I note that robbed propeiy was recovered, I also noted and taken into account the period that they have spent 1 year and 5 months on remand were paft of this offence. I have noted that their co accused in this case A1 also pleaded guilty and was sentenced to 10 years imprisonment on 13/5D.010 i.e about 3 months ago. lwould have given then loo slightly less sentence, but for purposes of consistence and in view of the cicumstances of the case, I sentence the two accused to the ten (10) vears imorisonment."(Emphasis added)

From the above excerpt of the sentencing proceedings, we observe that the learned trial Judge alluded to the sentence of 15 years imprisonment which the appellant was serving having been convicted, for purposes of showing that the appellant was not a first offender. ln our well-considered view, it was not intended for consideration of concunence of sentence.

25 Section 122 (1) of the Trial on lndictments Act provides as follows;

"122. Sentences cumulative unless otherwise ordered.

(1)Where a person after conviction for an offence is convicted of

another offence, either before sentence is passed upon him or her under the first conviction or before the expiration of that sentence, any sentence ol imprisonnent which is passed upon him or her under the subsequent co nviction shall be executed after the expiation of the former sentence, unless lhe couft directs that it shall be executed concurrently with the former sentence or of any paft of it; but it shall not be lawful for the courl to dtect that a sentence of inprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section 110(c)(l or any pan of it,"

10 From the above provision, it is clear that where the court has not directed that the sentence passed in a subsequent conviction runs concurrently with that under the first conviction, then it implies that the subsequent conviction shall be executed after the expiration of the former (first) conviction.

Therefore in the instant case, since the learned trial Judge did not indicate in his sentencing that the appellant serves the sentences concurrently, we are of the considered view that he intended that the appellant serves the sentence of '10 year imprisonment after the expiration of his sentence of 15 years imprisonment. We therefore reject counsel for the appellant's

submission that the sentence was ambiguous.

ln rEard to the view that the appellant's sentence should have run concurrently as it was for the appellant's co accused Ruva Godfrey, we note that an appropriate sentence is a matter

20 of judicial discretion of the sentencing court and each case presents its own facts upon which a court will exercise its discretion. See: Kaddu Kavulu Lawrence vs Uganda, SCCA No.72 of 2018.

ln the instant appeal, we find that the learned trial Judge judiciously exercised his discretion in sentencing the appellant differently from his co accused and since it has not been proved

that he acted upon some wrong principle or over-looked some material factor or imposed a sentence which was harsh and manifestly excessive in view of the circumstances of the case, we find no reason to interfere with his discretion.

ln the premises, we uphold the sentence and accordingly dismiss this appeal

We so order.

**Dated** at **Masindi** this. $2^{74}$ day of ................................... $\mathsf{S}$ $\frac{1}{2}$ auBRitis

**Richard Buteera**

# DEPUTY CHIEF JUSTICE

Hellen Obura

JUSTICE OF APPEAL $\kappa$ n 5. A

Irene Mulyagonja


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