Opian v Uganda (Criminal Appeal 119 of 2017) [2024] UGCA 107 (13 May 2024)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Egonda-Ntende, Gashirabake, Kihik4 JJA]

## CRIMINAL APPEAL NO.119 OF 2OI7

OPIAN JAMES APPELLANT

#### VERSUS

UGANDA . RESPONDENT (Appeal against the Judgment of the High Court of Uganda [Batema N. D. AJ at Soroti delivered on the 03'd of April 2012)

## JUDGMENT OF THE COURT

### Introduction

- 1] This is an appeal, with the leave of this court, against sentence only. The Appellant, Opian James was indicted for the offence of murder contrary to Sections 188 and 189 of the Penal Code Act. The deceased was the Appellant's father. The particulars were that on 12th July 2012, whilst the deceased was asleep, the Appellant entered the deceased's hut armed with a panga and hacked him on the neck and the right hand. The deceased died instantly. Immediately thereafter the Appellant walked to the police station with a panga, handed himself in, and made a full confession. The Appellant was, indicted, convicted, and sentenced to death sentence. - 2l Dissatisfied with the sentence by the trial Court, the Appellant filed this appeal on only one ground;

That the learned judge erued in law and fact when he failed to have regard to the Appellant's mitigation and sentenced the Appellant to death, a sentence thot wos illegal, unduly harsh, and manifestly

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excessive in the circumstances thereby occasioning a miscarriage of justice.

3l The Respondent opposed the Appeal.

#### Representation

4l The Appellant was represented by Mr. Turyamusiima Geoffrey. The respondent was represented by Ms. Immaculate Angutoko Chief State Attorney, on brief for Mr. Kyomuhendo Joseph Chief State Attorney.

## Submissions by Counsel for the Appellant.

- 5] Counsel submitted while relying on the case of AG v. Kigula and <sup>417</sup> others [20091 UGSC6; Constitutional Appeal No. 3 of 2006, that mandatory death sentence was unconstitutional. The Court pointed out that murders are not committed in the same circumstance; and that murderers vary in character, as some are first offenders, and some are remorseful. Such factors should be considered when the Court is exercising its sentencing discretion. - 6] Counsel submitted that the test for applying a death sentence has been laid down in several cases including, the case of Mbunya Godfrey Supreme Court Criminal Appeal No. 4. Of 2011, where the Supreme Court held that the death sentence should be passed in very grave and rare circumstances because of its finality. Counsel funher submitted that this test was expounded on in the case of Kakubi Vs. Uganda CA Crim. Appeal No. 126 of 2008 in which the Court stated that the death sentence should be imposed in the gravest of extreme culpability. Counsel argued that the position in the Kakubi Case reflects the international position in South Africa, where the Constitutional Court held in State Vs Makwanyane U9951 (3) S. A. 391 that the death sentence should only be imposed in the most exceptional cases, where there is no reasonable

prospect of reformation; and the object of punishment would not be achieved by any other sentence.

- 7] Counsel submitted that this case did not present such facts that would warrant a death sentence. Counsel argued that this case did not manifest any 'meticulous premeditation' or any other element of sophistication. The Appellant 'snapped' after a long period of suffering culminating in the frightening physical disorders he described experiencing on the evening of the killing which he attributed to his father bewitching him. He immediately regretted his actions and took no steps to conceal his involvement in his father's murder to dispose of the body. - 8] Counsel fuither relied on the provisions of the Constitution (Sentencing Guidelines for Court of Judicature) (Practice) Directions 2013, under Paragraph 17 which provides that the Court should only pass a death sentence in exceptional circumstances in the rarest of rare cases. This is also reflected in Section 5 of the Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendment) Act (the 'Law Revision Act') 2019 states. - 9] To buttress his earlier submissions counsel cited the case of Muwonge Fulgensio Vs. Uganda CA Crim. Appeal No.0586 of 2004, where this Court stated that:

"While the trial court retains the discretion to pass an appropriate sentence, on ony oppeal againsl the sentence passed by the trial Court, the appellate court should not merely rubberstamp the said sentence but should examine it to ensure its propriety. The propriety of a sentence must be measured on three determining criteria. First, whether it is legal. Second, whether it is so excessive as to amount to on injustice and third, whether the sentence imposed was

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consistent with the sentences imposed in eorlier decided cases involving similarfacts which is the consistency principle".

- l0l Counsel also cited Paragraph 6 of the Constitutional (Sentencing Guidelines for Court of Judicature) (Practice) Directions, 2013 which requires the Court to be consistent while meting down sentences. Counsel also cited the cases of Aharikundira V. Uganda SC Crim. Appeal No. 27 of 2015 [2018], Kasisi Dominic v. Uganda CA Criminal Appeal No. 507 of 2014 120201, Mbunya Godfrey V. Uganda, Supreme Court Appeal No. 04 of 2011, Livingstone Kakooza Vs. Uganda Supreme Court Criminal Appeal No. 17 of 1993, Emeju Juventine v. Uganda CACA No. 95 of 2014, and Nkurunzira Julius V. Uganda CACA No. 12 of 2009 120221UGCA <sup>65</sup> - <sup>I</sup>1] As regards the mental state of the Appellant, counsel submitted that International law prohibits the imposition of the death sentence on individuals with mental disorders at the time of the offence or at the time of sentence or execution. Counsel cited the UN Special Rapporteur on Torture 2012, where it was observed:

"International law imposes severe restrictions on the death penalty and demonds serious safeguords for it to be lawfully applied. It also outlaws it in some specific circumstances or with regard to specific groups of vulnerable persons... This conclusion originates .from the fact that international lqw does not attribute a dffirent value to the right to life of dffirent groups of human beings, such as juveniles, persons with mental disabilities, pregnant women or persons sentenced after an unfair trial, but considers the imposition ond enforcement of the death penalty in such coses os particularly cruel, inhuman and degrading and in violation of article 7 of the Covenant ond articles I and 16 of the Convention against Torture ".

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- l2l Counsel cited the cases of Ford V. Wainwright 477 US 399 (1986), Ford Wainwright and Chaughan & Anor V. Union and India (2014) 3 SCC <sup>1</sup> and R v Reyes [2003] 2 LRC 688 to the effect that a death sentence should not be imposed on a mentally ill person. Furthermore, The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 confirms in paragraph 9 (3) (f) that the court should consider the mental state of the offender before imposing a custodial sentence. Paragraph 21(c) of the Guidelines further confirms that mental disorder or disability linked to the commission of the offence is a mitigating factor. - 13] Counsel submitted that at the time of the offence, no proper mental state examination was made. Counsel submitted that the Appellant's mental state was assessed to be normal on police Form 24 fexhibit PE3], without any fuither detail, which conflicts with Opian James' statement at the charge and caution stage when he said that he was dreaming that something was telling him to go and hack his father to death. - l4l Counsel further argued that the nature and circumstances of the crime itself raise fundamental doubts about the integrity of Opian James mental health at the time of the offence. He killed his father, having not previously manifested violent tendencies, after suffering something akin to a psychotic episode in which voices told him to so act, on the premise that he was being bewitched. He then immediately handed himself in to the police and confessed to the killing. It is submitted that these facts are prima facie inconsistent with the Appellant being of sound mind at the time of the offence. - 15] Counsel submitted that the report of the Psychiatrist Dr. Hillary Irimaso dated 29th August 2023 ('the psychiatric report') establishes that the

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Appellant is and was suffering from anxiety and panic disorders. He is also said to have reported a history of being "detached.fro\* self and reality".

- l6] Counsel noted that the author of the psychiatric report makes no reference to the Appellant's account in his Charge and Caution statement, and it appears that the report has been prepared in ignorance of it. The author of the psychiatric report acknowledges that her conclusions about the Appellant's mental state at the time of the offence are limited by the failure to carry out a contemporaneous psychiatric evaluation. Any suggestion now that the Appellant was of sound mind at the time of the offence conflicts with the clear evidence of mental disturbance in the evidence on record. - l7l Counsel submitted that in conclusion, the author of the psychiatrist report concludes that "Mr. Opian James' mental state at the time of the olleged crime can be attributed to the above diagnoses of generalized anxiety disorder and panic disorder". He, therefore, has a mental health disorder" that was operative at the time of the offence. Applying international and domestic legal principles, this is itself a powerful reason not to uphold the death sentence. Indeed, to do so would be contrary to intemational and domestic law. - l8] It was submitted for the Appellant that the psychiatrist report also identifies that Opian James suffers from several issues with his physical health. It is said that his medical records "indicated multiple and persistent complaints, headaches, dizziness, breathlessness, palpitations, cough and abdominal discomfort. He was also treated for tuberculosis (TB) in 2018 and completed the regimen. However, some of [the] clinical symptoms persisted even after tests indicated he had recovered from TB". His physical and

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mental health conditions mean that his time in custody has weighed more heavily on him than it would on a prisoner without his health problems.

- l9l Counsel submitted that the trial Court failed to weigh the mitigating factors as presented in court. Counsel argued that the Court ought to have considered like the fact that the Appellant was a first time offender, see the case of Uganda V. Kansiime Daniel [2009] UGHC 125 being a first offender was considered enough to negate the death sentence. The fact that the Appellant handed himself over to police without concealing the death of his father. The fact that the Appellant did not waste Courts time and pleaded guilty. This is provided for under paragraph 2l€ of the Sentencing Guidelines. Counsel cited the case of Tuhumwire Mary V. Uganda Criminol Appeal No. 325 of 2015 [2016] where the sentence was reduced from 25 years' imprisonment to 10 years' imprisonment because she had handed herself over to the Police and confessed her offence. - 201 Counsel also argued that there has been a delay in hearing the Appellant's case that has occasioned death row syndrome. Counsel cited the case of Turyatunga V. Uganda Criminal Appeal No. 118 of 2019 [20041 emphasizing the deeply problematic issues with delay in appeal hearings counsel argued that Opian James has spent almost 12 years in prison (from his initial remand in July 2012) and almost 7 years (from 7th March 2017) residing in the condemned section of Luzira prison. He spent over 4 and a half years on remand. Since the death sentence was imposed, he has been waiting for nearly seven years for his appeal to be heard. He has suffered physical deprivation and mental anguish whilst in custody. Counsel argued that the delay offends articles 24 and aa @) of the Constitution of Uganda 1995.

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2ll Counsel prayed that this appeal be allowed and sentence set aside and the Appellant be sentenced to 15 years' imprisonment from the date of conviction.

### Submissions by Counsel for the Respondent.

- 221 It was submitted for the Respondent that the learned trial Judge properly evaluated the evidence, considered both the aggravating and mitigating factors, and arrived at a fair and just sentence given the nature of the offence and the manner in which it was planned and executed. - 231 Counsel argued that the facts in the present case fall within the exceptional circumstances envisaged under section 5 of the Law Revision (Penalties in Criminal Matters) Miscellaneous(Amendment) Act and Guideline 17 of the constitution (Sentencing Guidelines for Courts of Judicature) (Practice Directions,2013. These provisions permit the Court to impose a death sentence in exceptional circumstances. - 241 Counsel argued that the death sentence imposed by the learned trial Judge was neither harsh nor excessive. It was the only plausible sentence that suited the circumstances. This was a meticulously premeditated and wellexecuted murder, the Appellant armed himself with a panga (machete), waited for the deceased to take a nap during the day, pounced on him, and then chopped his neck and right hand. Counsel cited the case of Wandubire clement versus Uganda, SCCA No 41 of 2017, where the Supreme Court held that the premeditation of murder draws a case into the bracket of exceptional case or the rarest of the rare. Counsel further argued that the fact that the victim was the Appellant's father and the manner the murder was conducted, made this case go into the exceptional cases where the death sentence should be imposed.

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- 25) Counsel further submitted that given that the Appellant committed murder and the nature in which it was committed, no amount of mitigation not even a plea of guilty would attract lesser punishment than the death penalty. Counsel relied on the case of Bidong Zenone, Oruibeng Francis, and Okurumu Richard versus Uganda Criminal Appeal No.2016 of 2016. Counsel prayed that this Court finds that this is one of the rarest circumstances that warrant a death sentence. - 26) Concerning consistency, counsel agreed with the submissions of counsel for the Appellant however he argued that uniformity should not be based on emotions but rather on law. Counsel cited the case of Byaruhanga Okot vs Uganda CACA No.078/2010, where it was held that in addition, this court is bound to follow the principle of "parity" and "consistency" while sentencing while bearing in mind that the circumstances under which the offences are commiffed are not necessarily identical. Counsel also argued that as much as murder remains murder, the circumstances may vary that may waffant imposition of a death sentence. - 27) Counsel cited cases where the death sentence was upheld. These include; Bidong Zenone, Oruibeng Francis, and Okurumu Richard versus Uganda criminal Appeal no 2016 of 2016, Mugabe versus Uganda criminal appeal No.412 of 2009, Wadumbire Clement Criminal Appeal No 4l of 2017 and Bahemuka William and Anor versus Uganda, Criminal Appeal No. 4 of 2003. - 281 On mental health Counsel for the Respondent submitted that the Appellant was properly examined on PF24 and found to have a normal mental status. The PF24 was tendered in Court as PEXH 3 and the Appellant who was ably represented did not object to the document. Counsel argued that neither the

9lPage Appellant nor his defense lawyer contested the findings of the medical officer. Counsel stated that the Appellant did not plead mental illness at the time of sentencing. Raising the issue at this point amounts to an afterthought. The subsequent record of the examination of the Appellant indicates that he was "normal" and'ono abnormality noted". Counsel argued funher that there is no evidence that the Appellant was suffering from anxiety and panic disorders either during trial or sentencing. The report indicates that Opian James' mental state at the time of the alleged crime could not have interfered with his mental capacity. Counsel prayed that this Court upholds the sentence.

## Duty of the First Appellate Court

291 The duty of this Court is to re-evaluate the evidence and come up with your own conclusion as per Rule 30(l)(a) of the Judicature (Court of Appeal Rules) Directions and the cases of Pandya vs R tl957l EA 335 and Kifamunte Henry vs Uganda SCCA no 10 of 1997. Additionally, in the case of Abdallah Nabulere and fwo others vs Uganda, Criminal Appeal no. 9 of1978, it was held that

> "we cqnnot dffir from the findings of the trial judge ond the assesso,rs because they had the advontage of seeing and hearing the witnesses. We have not. An appellate Court has indeed jurisdiction to review the evidence to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction that is always exercised with caution. The oppellate court will only interfere with the findings of fact of the trial court if there's no evidence to support <sup>o</sup> particular conclusion...... but if the evidence as o whole can be regarded

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as justifying the conclusion reached at the trial, the view of the judge as to where the credibility lies is entitled to greqt weight..."

- 301 We shall consider the above principles in dealing with this appeal. - 3ll The position of the law conceming interference with the discretion of the sentencing Judge was well articulated in the case of Kiwalabye Bernard v Uganda, Criminal Appeal No 143 of 2001 cited with approval in Kato Kajubi Godfrey v Uganda, SCCA No 2012014 where it was held on page 33 that

" an appellate Court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscatiage of justice or where atrial Court ignores an important matter or the circumstances which ought to be considered while passing the sentence or wltere the sentence is imposed on wrong principle. "

321 Furthermore, in the case of Biryomumaisho Alex versus Uganda Criminal Appeal No. 464 of 2016 "It was further held that:

> "interfering with the sentence is not in matter of emotions but rather one of the law. Unless it can be proved that the learned trial Judge flouted any of the principles of sentencing, then it does matter whether the members of this court would have given a dffirent sentence tf they had been the one trying the Appellant."

331 The facts surrounding the conviction and eventual sentence of death from which the appeal arose were laid down by both Counsel in their submissions. The Appellant was tried, convicted, and sentenced to death for the murder of his biological father Ben Igulot, on 12/0712012, the deceased was in his hut sleeping when the entered the deceased's hut armed with a pangL cut the deceased on the neck and right hand. The deceased died instantly. Thereafter

the Appellant took himself to police with his blood-stained panga and reported how he had killed his father. The Appellant was convicted on his plea of guilty and sentenced to death.

- 34) The proceedings were too brief to offer any other relevant information because of the plea of guilt. When the facts were read to the Appellant he accepted and pleaded guilty to the charge. - 35] The mental status of the Appellant was not raised at the trial. However according to the medical examination aPF24 and admitted as exhibit PE3 the Appellant was found of sound mind which was contrary to the statement made by the Appellant in his charge and caution statement and was exhibited as EXH. P. E 2. In his charge and caution statement the Appellant that,

"it is true that I am a biological son of the late - one lgulot Ben. On the night of 12/07/12 after preparing and eating supper I went to my house to sleep. that I hardly slept when I started feeling something pressing me on my bed. I tried to get up I could not it wos still squeezing me. At the same time as if I was dreaming something was telling me to go and hack my father to death. No wonder this thing has been going on and had some fficts on my life. The issue is that my father went to the witch doctors and planted some kind of herbs in our compound. This herb(witchcraft) that is disturbing me. Indeed, I carried myself with o matchet and moved to his house, I opened the door and found him asleep. I cut him straight on the right-hand side of the neck and the forehead three times. I left him for the dead and I went straight to the police post together with the panga to report. I was detained and loter a messqge was sent to Katah,yi CPS and in turn, I was tronsferued to CPS for further management. I om sorry for what I did but it's the fault of myfather because he believes in witchcrafi so much...."

36] This statement raises issues and concerns about the Appellant's mental status. We noted that the Judge, in his 3 sentences order on sentence, stated that he considered both the aggravating and mitigating factors when he passed the death sentence upon the Appellant. The first 2 sentences deal with the aggravating factors for this crime. And then the last sentence concluded thus,

> "Having considered all the mitigoting and oggrovating factors, hwing slept over this matter and proyed to my God, I sentence the convict to death."

It is not clear what mitigating factors he did take into account as he does not enumerate them. It is not clear how 'sleeping over the matter' helped to lead to the death sentence. Was he in doubt initially and wanted to sleep over the matter first. If he entertained any doubts these doubts should have been resolved in favour of the convict. We have no quaffel with praying to the Almighty God but we are unable to decipher the communication between the learned judge and God, in order to consider this appeal against sentence.

371 According to Paragraph 9 (3)(0 of the sentencing Guideline (supra), while sentencing the Judge must consider in mitigation the mental state of the offender. This is also provided for under Guideline 2l (c) of the Sentencing Guidelines (supra). Considering the above sentencing proceedings, it is not clear whether the Judge considered the mental capacity of the Appellant. Even though it was not raised as a mitigating factor having admitted PE2 as part of evidence on record of proceedings, the Court ought to have considered it while sentencing the Appellant. In the case of Sekamatte Charles Vs. Uganda, Court of Appeal, Criminal Appeal No 67 of 2013, this Court while upholding a 32-year sentence handed down by a Judge observed that even when there was no doctor to testiff on the mental 13 lPage

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capacity of the Appellant at trial, the Judge considered in her mind and the given circumstances of the case, the Appellant, and his conduct would be excused from the death penalty.

- 38] The circumstances in Sekamatte's case above were that the Appellant was convicted and sentenced for the murder of his son. According to the record, the Appellant confessed to Uing the deceased because the deceased was crying a lot. The Appellant after taking the tied child to the pit latrine left it there for a time then he went back to the latrine and removed a log that was covering the pit latrine threw the deceased into the pit latrine and put back the log. During the proceedings, the Appellant confessed to having killed the child while he was very angry. The Judge concluded that he was deemed to be possessed of an unbalanced mental state which was tantamount to <sup>a</sup> significant mental disorder that would exclude the Appellant from the death penalty. This position was upheld by this Court on appeal. - 39] Turning to the facts before us, as noted earlier the mental status of the Appellant was not raised at the trial, however, the Appellant raised facts in his charge and caution statement that would bring into question the mental status of the Appellant. He confessed that while he slept something pressed him and this had happened for a while and had had an effect on his life. He funher noted that as if dreaming something told him to go and kill his father. Armed with a matchet he went and killed his father. Thereafter he reported himself to police with a blood-stained panga that he had used to kill the father. This kind of action is not the kind of a person with a stable mind. - 40] This court was concerned with the state of events and mind of the Appellant and ordered twice that the prisons provide information on the Appellant's

mental status but it was not adhered to. Eventually, the report was submitted to this Court and these were the conclusions;

- (l) Mr. Opian James' mental stote at the time of conviction cannot be odequately ascertained due to the failure to carry out a psychiatric evaluation at the time. - (2) Mr. Opion Jomes' mental stote at the time of the alleged crime can be attributed to the above diagnosis of generalized anxiety, disorder, and panic disorder. - (3) However, despite the above, Mr. Opian James' mental state at the time of the alleged crime could not have interfered with his mental capocity. - (4) Based on the above, Mr. Opian James might have been fit to plead and stand trial - 4l) From the above report it's clear that the Psychiatrist states that the mental state of the Appellant cannot be adequately ascertained due to failure to carry out a psychiatric evaluation at the time the offence was committed. He however observed that the mental state of the Appellant could be attributed to the diagnosis of generalized anxiety, disorder, and panic disorder. - 421 We find that considering the Appellant's conduct during and after the offence would have been considered by Court while sentencing. This conduct is not one of someone with a sound mind. - 43) Considering the facts of this case we find that the trial Court failed to take into consideration significant factors while sentencing the Appellant. We find that this case does not fall among the exceptional circumstances or rarest of cases to warrant a death sentence. In light of the fact that the appellant was a first offender, pleaded guilty, was remorseful, and it is clear that at the time he committed the offence he was suffering from delusional

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episodes or disorders, the appropriate sentence would be custodial, rather than, death penalty.

441 Taking into account the above factors we find that a sentence of imprisonment of 12 years would be appropriate from which we deduct <sup>4</sup> years and 8 months spent in pre trial detention, which would yield a term of imprisonment of 7 years and 4 months from the 6th March 2017, the date of conviction..

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## Decision

- l. Appeal succeeds. - 2. The death sentence is set aside. - 3. The Appellant shall serve a term of 7 years and 4 months from 6th March 2017, the date of conviction.

## We so order

Dated at Kampala this L^- g' day or !t\$ 2oz4

(

FREDRICK EGONDA-NTENDE JUSTICE OF APPEAL

i CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL V ,

## OSCAR JOHN KIHIKA JUSTICE OF APPEAL