Turyahebwa v Uganda (Criminal Appeal 141 of 2013) [2024] UGCA 278 (27 September 2024)

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

(Coram: Eva K. Luswata, JA, Oscar Kihika, JA, Asa Mugenyi, JA) CRIMINAL APPEAL NO. 0141 of 2O13

# BETIVEEN

# TURYAHEBWA JOHN FRANCIS alias MUGYEWA ::::::::: APPELLANT AND

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT [Appeal from the Judgement of the High Court sitting at Mbarara in Criminal Session Case No. O25 of 2OO9 by Hon. Justice P. K. Mugamba delivered on lStt October, 2O13]

#### JUDGMENT OF THE COURT

# Introduction

1l The Appellant was charged with the offence of murder contrary to Section 188 and 189 of the Penal Code Act Cap.128. The Appellant was indicted, convicted and sentenced to life imprisonment. It was stated in the indictment that Turyahebwa John Francis alias Mugrewa, on the 24Lh day of November,2OO9 at Ryakashusha cell in Ibanda District murdered Atuhaire Mackline.

#### Brief facts

2l The facts of the case as discerned from the record are that Atuhaire Mackline, the Appellant's daughter then aged about four years, resided with him in Ryakashisha cell, Mpasha Parish, Rukiri Sub-County in Ibanda District. On 24th November 2009, the Appellant reported the disappearance of Atuhaire to Kakuru

Eva, the LC1 Chairperson of the village. Ms. Kakuru proposed that the Appellant conduct a search and indeed for a few days, the Appellant appeared to go out to search for the missing child. At certain times, he did so in the company of the LCl Chairperson and other villages mates. On 3.d December 2009, the Appellant's two relatives namely, Katushabe and Ninsiima, while harvesting beans in the Appellant's banana plantation, noticed an area with loose soil. They raised an alarm and the Police was summoned. Upon digging up the loose ground, Atuhaire's body was discovered in a shallow grave. The Police exhumed the body, and in the postmortem report it was recorded that the cause of death was due to severe hemorrhage from a deep cut wound around the neck. At the time the body was discovered, the Appellant had left his home presumably to search for the deceased at her mother's home. He was eventually arrested from one Bananuka's home. After his a-rrest, the Appellant led Police to the spot where Atuhaire's body had been retrieved. He was accordingly charged with this offence.

### Grounds ofAppeal

- <sup>1</sup> The learned tial Judge erred in laut and fact when he failed to take into consideration the 2 gears and 10 months the conuict spent in lawful custody before conuiction while sentencing. - The learned tial Judge ened in lau.t and fact uthen she sentenced the conuict to life impisonment uthich was harsh and excessiue. 11.

#### Representation

3l At the hearing, the Appellant was represented by Ms. Julian Kamusiime on State brief, while the Respondent was represented by Mr. Joseph Kyomuhendo, a Chief State Attorney. Ms. Kamusiime's prayer to abandon ground one of the appeal, was granted without contest. This appeal shall accordingly proceed on severity of sentence only. We allowed to adopt and have considered submissions filed by both counsel as their legal arguments of the appeal.

#### Legal Arguments

- 4l By way of introduction, the Appellant's counsel re stated the law with regard to the right of appeal in general, and our powers as arl appellate court. He cited Section 132 of the Trial on Indictments Act (TIA) and the decision of Kifamunte Henry vs Uganda, SC Criminal Appeal No. 1O of L997, in that regard. Counsel then contended that the sentence imposed upon the Appellant was excessive and harsh as the trial Judge failed to apply the provisions of Article 23(8) of the Constitution which rendered the sentence a nullity. For guidance, counsel referred to the case of Attorney General vs Suzan Kigula and 416 Others [2OO9J ucsc 6. - sl In response, Respondent's counsel submitted that the sentence for life imposed upon the Appellant was neither harsh nor excessive as the trial Judge considered both the aggravating and mitigating factors and found that the aggravating factors outweighed the mitigating factors. Counsel argued further, that

the Appellant was convicted of murder a very serious offence which attracts a maximum sentence of death. He drew our attention to the Constitutional (Sentencing Guidelines of Courts of Judicaturel (Practice) Directions, 2OLg (Sentencing Guidelinesl which provide that the starting point in sentencing for both murder and aggravated robbery is 35 years to the maximum of death. Therefore, that a sentence of life imprisonment was in the circumstances justified, especially when the Appellant's counsel had not highlighted any error or sentencing principle that was flouted by the trial Judge.

- 8l Respondent's counsel also moved Court to consider the sentencing principle that a trial Judge should put into consideration similarly decided cases in order to achieve consistency. For guidance, counsel referred to the case of Aharikundira Yustina vs Uganda, SC Criminal Appeal No, 27 of 2015. - 9l Counsel then drew our attention to other decisions of the Supreme Court to argue that in comparison, the sentence imposed on the Appellant was in the circumstances, neither harsh nor excessive. He cited for example, the case of Magezi Gad vs Uganda, Criminal Appeal No. 17 of 2OL4, where the Supreme Court upheld a sentence of life imprisonment for murder. In Bacwa Benon vs Uganda, CA Criminal Appeal No. 869 of 2OL4, this Court confirmed a term of life imprisonment for an Appellant who had pleaded guilty to aggravated defilement. Finally, in Sebuliba Siraji vs Uganda, SC Criminal Appeal No. 319 of 2OO9 the Appellant

attacked the deceased and cut him with a panga. He was convicted on his own plea of guilty and sentenced to life imprisonment, which this Court declined to set aside.

101 In conclusion, counsel prayed that the appea-l be dismissed and the sentence of life imprisonment be upheld.

#### Analvsis and decision of Court

111 We have carefully studied the record, considered the submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. We are alive to the duty of this Court as a lirst appellate Court to review the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court, and come to our Judgement. See: Rule 3O(1)(a) of the Judicature (Court of Appeal Rules) Directions S. I 13-10. We do agree and follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O of 1997, where it was held that on a first appeal, this Court has a duty to;

> " ... reuiew the euidence of the case and to consider the mateials before the tial Judge. The appellate court must then make up its outn mind not disregarding the judgement appealed from, but carefullg weighing and considering it."

<sup>I</sup>I I An appropriate sentence is a matter of discretion of the sentencing Judge and each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2OL6. The principles

guiding the appellate Court when considering any contest to the severity of a sentence are well settled. The authority provided by Respondent's counsel is a good guide on this principle. The Supreme Court in the case of Kiwalabye Bernard vs Uganda, Criminal Appeal No. 143 of 2OO1 cited with approval in Kato Kajubi Godfrey vs Uganda, SCCA No. 20l2Ol4, held as follows: -

> "An appellate Couri is not to interfere uith the sentence imposed bg a tial 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 manifestlg excessiue or so lotl as to amount to a miscarriage of justice or where a tial court ignores an important matter or the ciranmstances which ought to be considered uhile passing the sentence or where the sentence is imposed on a wrong principle."

In the case of Biryomumaisho Alex vs Uganda, Criminal Appeal No. 464 of 2OL6 it was further held that, interfering with the sentence is not a matter of emotions but rather one of law. The appellate court is not to interfere unless it can be proved that the trial Judge flouted any of the principles of sentencing. It is of no consequence that the appellate court would have under the same circumstances, arrived at a different sentence.

12) On 18tn October 2013, both counsel were permitted to make submissions in the a-llocution proceedings. It was stated for the Respondent that the Appellant a first offender, committed a crime that carried a death sentence. The prosecutor invited the Court to consider the manner in which the Appellant killed his daughter a four-year-old child. That the Appellant who had showed no remorse in killing his child in cold blood, was to be regarded as a dangerous man and not fit to be kept in society. The prosecutor prayed for the maximum sentence. Conversely, nothing much was offered in mitigation. Appellant's counsel reiterated that her client was a first offender and prayed for a lenient sentence. The Appellant repeated that prayer giving reasons that it would enable him to return home to look a-fter his children.

13] To determine whether the trial Judge considered the above submissions and also the sentencing principles, we shall reproduce his sentencing ruling. He stated on page 26 of the Record of Appeal that:

> "This is a sad case where a father killed his child in cold blooduithoutremorse. I haue lrcardwhat has been said in mitigation, partianlarly bg the conuict who seeks for a lenient sentence so that h.e can go and take care of his children. This is regardless to what happened in tte past. Hauing taken euerything into account, I note the ma-ximum sentence is a decent. Neuertheless, I sentence the conuict to impisonment for the rest of his life. He is sentence. " (sic!)

Judge

\41 Having perused the sentencing order, it is clear that the trial Judge took into consideration all mitigating factors that were presented in the allocution proceedings. His considerations were articulate and only alter that eva-luation, did the Judge decide not to impose the maximum sentence and instead, opted for a term of life imprisonment.

Although not a rule of law, it would have been prudent for the $15$ Court in addition to consider the principle of consistency by considering other similarly decided cases, before arriving at what we perceive, as a severe sentence. We are in that regard guided by of Paragraph $6(c)$ of the provisions Constitution the (Sentencing Guidelines for Courts of Judicature) (Practice) **Directions, 2013** which provides that;

> "Every Court shall when sentencing an offender take" into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances:"

We are further guided by the Supreme Court decision of Aharikundira Yustina versus Uganda, SCCA No. 27 of 2015 where court stated that;

> "... it is the Court while dealing with appeals regarding *sentencing to ensure consistency with cases that have* similar facts. Consistency is a vital principle of $a$ sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and *without unjustifiable differentiation.*"

We will therefore consider some of previous sentences that have 17] been imposed for similar offences in order to determine whether the sentence that was imposed was appropriate in the circumstances.

181 In Karisa Moses vs Uganda, Criminal Appeal No. 23 of 2OL6, a 22-yeat Appellant was convicted for murdering his grandfather. The Supreme Court confirmed a sentence of life imprisonment which it considered appropriate in the circumstances. Again, in Kato Kajubi Godfrey vs Uganda, Criminal Appeal, No. 2O of 2014, the Supreme Court confirmed a sentence of life imprisonment for an Appellant who murdered a child of 12 years, cut off his private parts before decapitating the body. The deceased's head was never recovered. In Bahasha Sharif vs Uganda, SC Criminal Appeal No. 82 of 2O18, the Supreme Court upheld a death sentence and stated that one of the objectives of sentencing is deterrence. The Court noted the manner in which the Appellant killed a child and dismembered his body which in the Court's view depicted a depraved person who was devoid of all humanity. This Court in the case of Sebuliba Siraji vs Uganda, CA Criminal Appeal No. O319 of 2OO9, upheld sentence of life imprisonment against an Appellant who was found guilty of murder. The Court categorically held that:-

> "We also consider that life impisonment is a sentence prescribed bg laut, giuen that the maximum penalty is death. Therefore, a trial court is free to giue the maximum penaltg or impose a lesser sentence, including life imprtsonment, if the circumstance s so u-tarrant. "

19] In the instant case, the Appellant brutally murdered his daughter by cutting her neck to sever two main vessels. He proceeded to bury the body in a shallow grave in the family plantation and then pretended that she had gone missing. We agree with the trial Judge that the circumstances called for a deterrent and severe

sentence. We find no error in the decision of the Judge to sentence the Appellant the way he did. Basing on the circumstances of the case, we find that the sentence was neither harsh nor excessive.

$20]$ Accordingly, we confirm the sentence of life imprisonment and dismiss the appeal. The Appellant shall continue to serve his sentence.

**Dated** at this $2.7$ of $\cdots$ September 2024. HON. EVA K. LUSWATA JUSTICE OF APPEAL HON. OSCAR KIHIKA JUSTICE OF APPEAL HON. DR. ASA MÜGENYI **JUSTICE OF APPEAL**

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