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- The court held that the lower courts erred in mentioning aggravating factors without reference to mitigating factors and consideration of the same. That whereas a successful plea of provocation leads to a reduction of the crime of murder to manslaughter, the law does not provide a mandatory sentence to those convicted under the section but rather provides only a maximum sentence of life imprisonment. That though there was no reference to mitigation factors, the error didn’t occasion a miscarriage of justice. That sentencing is a matter in which a judge exercises discretion and furthermore that judicial discretion should be exercised judicially. That the general rule is for the High court to impose a consecutive sentence and a convict will only concurrently serve sentences arising out of distinct offences if the court so directs. That as the trial judge sentenced and gave reasons for the sentence, it couldn’t be faulted. That where an individual is convicted but released on bail pending appeal, the time he is out on bail cannot be deducted because the individual would not be suffering any curtailment of freedom.
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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO.01 OF 2014.
[CORAM: TUMWESIGYE, KISAAKYE, MWANGUSYA, MWONDHA,
10 TIBATEMWA-EKIRIKUBINZA, JJSC.]
BETWEEN
15
MAGALA RAMATHAN
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AND
APPELLANT
UGANDA
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RESPONDENT
20 [Appeal from the decision of the Court of Appeal at Kampala by Opio-
Aweri, Balungi Bossa and Kakuru, JJA) Criminal Appeal No. 0416 of
2009 dated 22nd January) 2014.J
JUDGMENT OF THE COURT
25 This is a second appeal against the sentence of the High Court
delivered by J. W. Kwesiga J on 24th June 2009 at Kampala. The
particulars of the case are that the appellant was convicted of
manslaughter on 2 counts. The appellant was sentenced on each
count to a term of 7 years imprisonment to be served consecutively.
30 He' appealed to the Court of Appeal against both the conviction and
sentences. Regarding the sentences, the appellant contended that the
trial judge erred in imposing consecutive sentences. Both grounds of
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5 appeal were dismissed and the Court of Appeal upheld the conviction
and the trial Judge's decision that the sentences be served
consecutively.
Dissatisfied with the Court of Appeal decision, the appellant appealed
to this Court on one ground as follows:
10 1. The learned Justices of the Court of Appeal erred in law and
fact in upholding the aggregate sentence of 14 years
imprisonment which was manifestly excessive and illegal in
the circumstances, and occasioned a failure of justice.
Representation
15 At the hearing of this appeal, the appellant opted to represent
himself. The respondent was represented by Jane Okuo Kajuga,
Senior Principal State Attorney in the Directorate of Public
Prosecutions.
Appellant's submissions
20 The appellant submitted that the learned Justices of Appeal failed to
direct their mind to the learned trial judge's failure to follow
procedural law during the sentencing process. He submitted that in
Uganda, it is a rule of law that a trial court must during sentencing
consider the remand period. That in arriving at the sentence, the
25 period he spent on remand (10 months) as well as that spent on bail
(4years) had to be considered because his freedom was limited. That
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5 the failure to consider both periods as part of the remand rendered
the sentences imposed illegal.
In support of the above argument, he relied on Article 23 (8) of the
Constitution which provides that:
When a person is convicted and sentenced to a term of
10 imprisonment for an offence, any period he or she
spends in lawful custody in respect of the offence
before the completion of his or her trial shall be taken
into account in imposing the term of imprisonment.
The appellant also relied on the authorities of Bashir Ssali vs.
15 Uganda SCCA No. 40 of 2004 and Bukenya vs. Uganda SCCA No.
3 of 2013 to emphasize the argument that failure to consider the
remand period renders a sentence illegal.
Furthermore, the appellant faulted the finding of the learned Justices
of Appeal that the trial judge had the discretion to direct the
20 sentences to run either concurrently or consecutively and that the
aggregate sentence of 14 years imprisonment was neither harsh nor
excessive. The learned Justices of Appeal had relied on Section 2 (2)
of the Trial on Indictments Act and held as follows: "Our
understanding of Section 2 of the Trial on Indictment Act is that the
25 general rule is for the High Court to impose consecutive sentences and
directing sentences to run concurrently is the exception. "
It was also argued that the sentence imposed was excessive because
the trial judge did not consider the mitigating factors presented in
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5 court. The mitigating factors were that he committed the crime as a
result of provocation by the crowd of people who broke his car
windscreen and was therefore not in full control of his mind; was a
first time offender and that at the age of 51 years, he had the capacity
to reform and contribute to society. He also submitted that he was a
10 family man with 11 dependents who looked up to him for emotional
and financial support.
The appellant relied on the South African authority of State vs.
Makwanyane [1995] (3) S.A 391 to support the argument that a
court is obliged to consider the mitigating factors presented.
15 In support of the fact that he was a first time offender, the appellant
relied on Benjamin Odoki's Guide to Criminal Procedure, 3rd
Edition (2006) at page 173 wherein he stated that, "the fact that an
accused person is a first offender or has had previous good record is a
valid mitigating factor ... JJ
20 In regard to the appellant's age as a mitigating factor, there was
reliance on the authority of the Court of Appeal of Uganda - Kabatera
Stephen vs. Uganda Criminal Appeal No. 123 of 2001- where the
court stated that, "we are of the opinion that the age of an accused
person is always a material factor that ought to be taken into account
25 before sentence is imposed ... failure to consider the age of the
appellant caused a failure of justice. JJ
Respondent's submissions
4
5 Counsel for the respondent conceded that the honourable Justices of
the Court of Appeal erred by confirming the sentences and yet the
learned trial judge did not take into consideration the period that the
appellant had spent on remand. She submitted that this court can
invoke Section 7 of the Judicature Act to set aside the sentence,
10 take into account the remand period and arrive at an appropriate
sentence.
The respondent however disagreed about the period of 4 years and 4
months as the period spent on remand. Counsel submitted that part
of the said period was spent on bail and only 10 months were spent
15 in custody. Counsel therefore argued that the Court should consider
only the 10 months the appellant spent in lawful custody as the
remand period.
In regard to the appellant's submission that his being provoked ought
to have been considered as a factor to mitigate the sentence, the
20 respondent submitted that provocation could not be considered as a
mitigating factor because the legal effect of this is to reduce the
offence of murder to the lesser offence of manslaughter.
Further, counsel for the respondent submitted that whereas the
mitigating circumstances had been raised before the trial judge, the
25 judge did not specifically refer to them in his sentence because the
court considered the aggravating factors to have outweighed the
mitigating factors.
Analysis of Court
5
5 Although the appeal was based on only 1 ground, the submissions
bring out 3 legal issues for our determination:
(i) Whether a judicial officer is obliged to consider mitigating
factors while sentencing.
10 (ii) Whether the trial judge's order that the sentences run
consecutively was an error in law.
(iii) Whether the failure to take into consideration the remand
period rendered the entire sentence illegal.
15 Issue 1
We will first determine the aspect of the mitigating factors.
The appellant submitted that the mitigating factors were not
considered. On the other hand, the respondent contended that the
mitigating factors were considered but the aggravating factors
20 superseded the mitigating factors.
During sentencing, the trial judge stated as follows:
I do give a sentence that both punishes the convict and warns people
who hold guns not to abuse them and use them against the people who
are defenseless and innocent. I hereby sentence the accused person
25 as follows: imprisonment for (7) seven years in Count 1, imprisonment
for (7) seven years in Count 2. The sentences should be served
consecutively.
The Court of Appeal in confirming the sentence given by the trial
Judge stated as follows:
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5 ((We find that the appellant having acted in the manner that he did and
his actions having resulted in death of two people, the Judge correctly
convicted him of manslaughter. "
We note that in sentencing, both the trial court and the Court of
Appeal did not make any reference to what was presented by the
10 accused! appellant as mitigating factors.
Judicial discretion is a vital part of imposing sentence and it is trite
law that this lies with the trial court. [See: Kyalimpa Edward vs.
Uganda SCCA No.10 of 1995]. However, the discretion is not
absolute. Judicial discretion is an issue of accountability and should
15 be exercised judicially. A judicial officer is accountable to explain the
reasons for exercising the discretion in a particular way.
Our justice system requires that an accused person be given an
opportunity to say something in mitigation of the sentence. It follows
that in arriving at a sentence, a judicial officer is obliged to balance
20 the mitigating factors against the aggravating factors.
However, after identifying the mitigating and aggravating factors, a
judge may come to the conclusion that in the circumstances of the
particular case, the aggravating factors outweigh what would have
been mitigating factors. This principle was well laid out in the
25 persuasive authority of S vs. Vilakazi 2009 1 SACR 552 (SCA),
where the Supreme Court of South Africa held that:
In cases of serious crime, the personal circumstances
of the offender, by themselves, will necessarily recede
7
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5 into the background. Once it becomes clear that the
crime is deserving of a substantial period of
imprisonment, the questions whether the accused is
married or single, whether he has 2 children or 3 ... are
largely immaterial to what that period should be.
10 Nevertheless the fact that the judicial officer was alive to what the
accused submitted in mitigation must be evident on record. It must
therefore be stated by the judicial officer that the sentence was
arrived at with both the mitigating and aggravating factors in mind.
It is only then that the accused will be sure that the judge addressed
15 his or her mind to the cited mitigating factors but nevertheless came
to the conclusion that the aggravating factors outweighed the
mitigating ones.
We therefore find that the courts below erred in only referring to the
aggravating factors while making no mention of the mitigating
20 factors.
It was also the appellant's submission that his being provoked should
have been considered in mitigation. That by neglecting this factor,
the trial court meted out an excessive sentence. The respondent on
the other hand argued that provocation cannot be considered as a
25 mitigating factor in sentencing since the reduction of the offence from
murder to manslaughter was based on the court's acceptance that
the accused had killed his victim as a result of provocation.
5 The essence of the argument was that the appellant had already
benefited from the "plea".
In our view, whereas the Penal Code Act creates the statutory defence
of provocation in Sections 192 and 193, with the result that a
murder is reduced to manslaughter, this does not mean that the law
10 does not recognize the ordinary meaning of provocation as a possible
mitigating factor in regard to sentencing. In ordinary parlance,
provocation refers to wrongful conduct that makes someone angry
and prompts them to physically retaliate against the wrong doer.
There is no doubt that the circumstances covered by the statutory
15 defence of provocation are not uniform. Within the statutory
provision (of Section 193 (supra)) for example, the law recognizes
assaults as well as insults. It must also be noted that case law
interpretation of what constitutes provocation varies widely. Thus
abusive words have in some cases been recognized as provocation
20 (Rex vs. Hussein el o Mohamed 9 EACA 52), finding a spouse in an
act of adultery has in some cases been recognized as provocation[R
V AZayina [1957] R & N 536 (Ny)] engaging in actions of witchcraft
in the presence of another person has in some cases been interpreted
as provocation and so has been physical assault (Eria Galikuwa vs.
25 R (1951) 18 EACA 175, Republic vs. Juma [1974]). We are
therefore of the view that the nature of provocation varies from case
to case.
The nature of provocation can be described in terms of gravity of
provocation and must therefore have a bearing on sentences given to
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5 convicts whose manslaughter was by reason of provocation. We also
note that whereas a successful plea of provocation leads to a
reduction of the crime of murder to manslaughter, the law does not
provide a mandatory sentence to those convicted under the section
but rather provides only a maximum sentence of life imprisonment.
10 In light of the above analysis, we are unable to accept the
respondent's submission that once provocation has been considered
to reduce a murder charge to manslaughter, it cannot be considered
as a mitigating factor in sentencing.
However, despite the fact that the courts below erred in not
15 pronouncing themselves on the mitigating factors and only
considered the aggravating factors which surrounded the offences
committed, we are satisfied that the failure did not cause any
injustice. Having weighed the aggravating factors against what would
be considered mitigating factors surrounding the offences
20 committed, we are satisfied that the crime is deserving of a
substantial period of imprisonment and 7 years for each offence was
appropriate punishment.
Issue 2
In answering the question whether the order that the sentences run
25 consecutively was an error in law, we must again emphasize that
sentencing is a matter in which a judge exercises discretion and
furthermore that judicial discretion should be exercised judicially.
More specifically, Judicial Officers have the discretion to decide the
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5 manner In which the sentences given will be served - whether
concurrently or consecutively. Section 2 (2) of the Trial on
Indictments Act provides:
When a person is convicted at one trial of two or more
distinct offences, the High Court may sentence him or
10 her for those offences to the several punishments
prescribed for them which the court is competent to
impose, those punishments, when consisting of
imprisonment, to commence the one after the
expiration of the other, in such order as the court may
15 direct, unless the court directs that the punishments
shall run concurrently. (Emphasis of Court)
We agree with the Court of Appeal's interpretation of Section 2 (supra)
that the general rule is for the High court to impose a consecutive
sentence and a convict will only concurrently serve sentences arising
20 out of distinct offences if the court so directs.
We however must underscore the need for an accused to know why
a judge arrived at a particular decision. In the persuasive authority
of Ndwandwe vs. Rex [2012] SZSC 39, the Supreme Court of
Swaziland considered what judicious exercise of the sentencing
25 discretion entails as follows:
The exercise of sentencing discretion must be a
rational process in the sense that it must be based on
the facts before the court and must show the purpose
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· .
5 the sentence is meant to achieve. The Court must be
conscious and deliberate in its choice of punishment
and the records of the court must show the legal
reasoning behind the sentence. The legal reasoning
will reflect the application of particular principles and
10 the result it is expected to achieve. The choice of
applicable principles and the sentence will depend on
the peculiar facts and needs of each case. The choice
will involve a consideration of the nature and
circumstances of the crime, the interest of the society
15 and the personal circumstances of the accused other
mitigating factors and often times a selection between
or application of conflicting objectives or principles of
punishment. (Our emphasis)
It is therefore expected that whether a judge opts for a
20 consecutive or a concurrent running of sentences, her
reasoning should be on record.
Be that as it may, it is a trite principle of law that in ordering a
consecutive sentence, the total sentence must be proportionate to the
offence and the circumstances surrounding each case.
25 The above principle is reflected in Section 8 of the Sentencing
guidelines which provide that:
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5 (1) Where the court imposes consecutive sentences, the
court shall first identify the material part of the conduct
giving rise to the commission of the offence and
determine the total sentence to be imposed.
(2) The total sum of the cumulative sentence shall be
proportionate to the culpability of the offender.
In pronouncing the number of prison years for each count and that
the sentences would run consecutively, the trial judge mentioned the
justification for the sentence - punitive on the one hand and
deterrent on the other.
15 We therefore find that the trial judge judicially exercised his judicial
discretion.
Issue 3
We now turn to address the aspect of consideration of remand In
sentencing.
20 It was the appellant's submission that the learned trial judge failed
to consider the period of 4 years and 4 months that he had spent on
remand. It is however on record that the appellant spent only 10
months in prison custody and the 4 years he was on bail.
This Court has recently held in Rwabugande vs. Uganda (supra) that
25 a sentence arrived at without taking into consideration the period
spent on remand is illegal for failure to comply with a mandatory
constitutional provision. Further that, consideration of
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5 the time spent in lawful custody means deducting that period from
the final sentence.
It is however clear in our minds that where an individual is convicted
but released on bail pending appeal, the time he is out on bail cannot
be deducted because the individual would not be suffering any
10 curtailment of freedom. It is therefore the 10 months which will be
deducted.
In conclusion, we find that the appeal partly succeeds to the extent
that in imposing the term of imprisonment, the 10 months period
spent on remand ought to have been taken into account.
15 Consequently, the sentence of 14 years imprisonment imposed by the
High Court judge and confirmed by the Court of Appeal is here by set
aside.
We have addressed our mind to the mitigating factors presented by
the convict and weighed them against the fact that he fired bullets
20 into a crowd of unarmed people, a factor we consider aggravating. In
the circumstances, a sentence of 7 years imprisonment would still be
appropriate for count 1. We also consider that a sentence of 7 years
imprisonment would be appropriate for Count 2. We maintain that
because two (2) lives were lost as a result of the actions of the
25 appellant, the sentences will be served consecutively.
In light of Article 23 (8) of the Constitution, the 10 months the
appellant spent on remand is hereby deducted from the sentence.
The appellant will therefore serve a total sentence of 13 years and 2
months.
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5 We so order.
Dated at Kampala this .. 20th. day of September 2017.
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JOTHAMTUMWESIGYE
10 JUSTICE OF THE SUPREME COURT .
•...................................
15 DR. ESTHER KISAAKYE
JUSTICE OF THE SUPREME COURT.
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EL D MWANGU A
JUSTICE OF THE SUPREME COURT .
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FAITH MWONDHA
JUSTICE OF THE SUPREME COURT.
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PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA
JUSTICE OF THE SUPREME COURT.
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