Uganda v Okello (Criminal Sessions Case No. 0356 of 2018) [2018] UGHCCRD 207 (20 November 2018)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

CRIMINAL CASE No. 0356 OF 2018

UGANDA ….….……………….….…….….….….….…..…………….… PROSECUTOR

VERSUS

OKELLO SAIDI …….…….……….…………….……..……………………… ACCUSED

Before: Hon Justice Stephen Mubiru.

SENTENCE AND REASONS FOR SENTENCE

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This case has come up today 20^th November, 2018 in a special session for plea bargaining. The accused is indicted with the offence of Murder c/s 188 and 189 of The Penal Code Act. It is alleged that 13^th October, 2016 at .... Gulu, the accused murderd......

When the case was called, the learned State Resident Attorney, Ms. Catherine Nakaggwa has reported that she successfully negotiated a plea bargain with the accused and his counsel. The court has invited the State Attorney to introduce the plea agreement and obtained confirmation of this fact from defence counsel on state brief, Mr. Walter Ladwar Okidi. The court has ascertained that the accused has full understanding of what a guilty plea means and its consequences, the voluntariness of the accused’s consent to the bargain and appreciation of its implication in terms of waiver of the constitutional rights specified in the first section of the plea agreement. The Court being satisfied that there is a factual basis for the plea, and having made the finding that the accused made a knowing, voluntary, and intelligent plea bargain, and after he has executed a confirmation of the agreement, has gone ahead to receive the agreement to form part of the record. The accused has then been allowed to take plea whereupon a plea of guilty has been entered.

The court has invited the learned Resident State Attorney to narrate the factual basis for the guilty plea, whereupon she has narrated the following facts; on 13^th October, 2016 the deceased aged 7 years returned from school, and followed the mother to the garden. Along the way she met the accused who had sexual intercourse with her and also killed. The matter was reported at the police post. Her body was found near the home of the accused. He was arrested and examined and found to be 22 years and mentally sound. A post mortem was done and she died from respiratory failure and she had a tear on the vagina. The accused was charged. The respective medical examination reports too have been admitted as part of the facts.

Upon ascertaining from the accused that the facts as stated are correct, he has been convicted on his own plea of guilty for the offence of Murder c/s 188 and 189 of The Penal Code Act. In justification of the sentence of fifteen (15) years’ imprisonment in respect of Count I and fifteen (15) years’ imprisonment in respect of Count 2, proposed in the plea agreement, the learned Resident State Attorney has stated that; the victim was only seven years old and the convict 22 years old. He not only had sexual intercourse with the deceased but also killed her. She had multiple bruises around the neck. He abused the trust of the deceased. Learned defence counsel has stated the key mitigating factors considered to have been that; he is a first offender and admitted guilt and is remorseful. He was 21 years at the time. The accused had nothing to add by way of allocutus.

I have reviewed the proposed sentences in light of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. I have also reviewed current sentencing practices for offences of this nature. With regard to Count 1, I have considered the case of Bukenya v. Uganda C.A Crim. Appeal No. 51 of 2007, where in its judgment of 22^nd December 2014, the Court of Appeal upheld a sentence of life imprisonment for a 36 year old man convicted of murder. He had used a knife and a spear to stab the deceased, who was his brother, to death after an earlier fight. In Sebuliba Siraji v. Uganda C.A. Cr. Appeal No. 319 of 2009, in its decision of 18^th December 2014, the court of appeal confirmed a sentence of life imprisonment. In that case, the victim was a businessman and the accused was his casual labourer. On the fateful day, the accused waited for the deceased with a panga hidden in a kavera (polythene bag) and when the deceased opened his vehicle, the appellant attacked him and cut him with a panga on his head, neck and hand. In Uganda v. Businge Kugonza H.C. Cr. Sess. Case No. 162 of 2012 the accused was convicted of murder after a full trial and was on 11^th September 2013 sentenced to 20 years’ imprisonment. The convict in that case had dug hole in the wall of the victim’s house and cut him to death with a panga while he slept in his bed. In Uganda v. Ocitti Alex and another, H.C. Cr Sessions Case No. 0428 of 2014, an accused who plead guilty to an indictment of murder was on 7^th November 2014 sentenced to 25 years’ imprisonment. The 43 year old accused hit the deceased with an axe at the back of his head multiple times. In Uganda v. Mutebi Muhamed and another, H.C. Cr Sessions Case No. 038 of 2011, one of the accused who pleaded guilty to the offence of murder was on 17^th January 2014 sentenced to 25 years’ imprisonment while the other convicted after a full trial was sentenced to 30 years’ imprisonment. The two convicts had killed the deceased by stabbing repeatedly on vulnerable parts of the body such as the head, the chest and near the breast during a robbery. Lastly, the case of Tom Sazi Sande alias Hussein Saddam v. Uganda C.A Cr Appeal No. 127 of 2009, where in its decision of 24^th March 2014, the Court of Appeal upheld a sentence of 18 years’ imprisonment for an accused who pleaded guilty to an indictment of murder. He had been on remand for 2 years and 3 months.

With regard to Count 2, I have considered the case of Agaba Job v. Uganda C.A. Cr. Appeal No. 230 of 2003 where the court of appeal in its judgment of 8^th February 2006 upheld a sentence of 10 years’ imprisonment in respect of an appellant who was convicted on his own plea of guilty upon an indictment of defilement of a six year old girl. In the case of Lubanga v. Uganda C.A. Cr. Appeal No. 124 of 2009, in its judgment of 1^st April 2014, the court of appeal upheld a 15 year term of imprisonment for a convict who had pleaded guilty to an indictment of aggravated defilement of a one year old girl. In another case, Abot Richard v. Uganda C.A. Crim. Appeal No. 200 of 2004, in its judgment of 6^th February 2006, the Court of Appeal upheld a sentence of 8 years’ imprisonment for an appellant who was convicted of the offence defilement of a 13 year old girl but had spent three years on remand before sentence. In Lukwago v. Uganda C.A. Crim. Appeal No. 36 of 2010 the Court of appeal in its judgment of 6^th July 2014 upheld a sentence of 13 years’ imprisonment for an appellant convicted on his own plea of guilty for the offence of aggravated defilement of a thirteen year old girl. Lastly, Ongodia Elungat John Michael v. Uganda C.A. Cr. Appeal No. 06 of 2002 where a sentence 5 years’ imprisonment was meted out to 29 year old accused, who had spent two years on remand, for defiling and impregnating a fifteen year old school girl.

A plea of guilty offered readily before commencement of trial usually results in a discount of anywhere up to a third of the sentence that would otherwise be imposed after a full trial. Having considered the sentencing guidelines and the current sentencing practice in relation to offences of this nature, I consider the sentences proposed for each count in the plea agreement entered into by the accused, his counsel, and the State Attorney to be appropriate.

In accordance with Article 23 (8) of the Constitution and Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I observe that the convict has been in custody since 18^th October, 2016 and I hereby take into account and set off two years and one month as the period the convict has already spent on remand. I therefore sentence the convict to a term of imprisonment of twelve (12) years and eleven (11) months in respect of Count 1; and imprisonment of twelve (12) years and eleven (11) months in respect of Count 2. Both sentences are to run concurrently and are to be served starting today.

Having been convicted and sentenced on his own plea of guilty, the convict is advised that he has a right of appeal against the legality and severity of these sentences, within a period of fourteen days.

Dated at Gulu this 20^th day of November, 2018

Stephen Mubiru

Judge,

20^th November, 2018.