HON. MR. JUSTICE G.M.OKELLO,JA
HON. LADY JUSTICE C.K.BYAMUGISHA, JA.
[Appeal from the decision and sentence of the High Court of Uganda sitting at Lira (Aweri-Opio J) dated 15th June 2004 arising out of High Court Criminal Session Case No.23/04]
JUDGEMENT OF THE COURT
The appellant Agec Moses was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. It was alleged in the particulars of the indictment that on the 20th April 2001at Buga village, Kamdini parish, Oyam County, Apach District, he murdered Adong Ketty.
When he appeared before Aweri-Opio J. on the 15th June 2004 he pleaded guilty to a lesser offence of manslaughter. He was sentenced to eight years imprisonment. His appeal to this court is against the sentence.
One ground of appeal was formulated for our determination. It stated as follows:
“That much as the sentence was legal, it was harsh and excessive in view of the mitigating factors”.
In submitting on this ground, Mr Antony Ahimbisibwe, learned counsel for the appellant, stated that the appellant was a soldier who had gone out on patrol although he used the occasion to look for his girl friend. He complained that the trial judge used harsh language when he stated that the appellant used the gun for protecting society into a machine for hunting for girl friends in the village. He further pointed out that the learned judge did not take into account the fact that the appellant met vigilantes who wanted to disarm him. Other factors that learned counsel considered to be favourable to the appellant were that he had been on remand for three years and six months and also the circumstances of the case. He suggested a sentence of 4 years.
Ms Wenene, Senior State Attorney, supported the sentence and invited us to dismiss the appeal as it lacked merit. She pointed out that the sentence was lawful.
This court has repeatedly held in numerous authorities that it will not intervene to alter the sentence passed by a trial court unless it is illegal or manifestly excessive or too low in the circumstances of the case. In instant appeal, the facts leading to the commission of the offence were narrated to court to be the following. The appellant went to the home of the deceased to look for his girl friend. It was at night. He ordered the deceased to open the door. Other people who included Ogwal and Robert Okello overheard him. They came and tried to disarm him. They removed the magazine containing the bullets from the gun. In the struggle, the appellant shot one bullet that hit the deceased in the abdomen. She later died from the wounds inflicted.
In sentencing the appellant, the learned judge took into account all the facts that were before him. There is no doubt that there was scuffle as Okello and Ogwal tried to disarm the appellant. We do not think that the appellant was using the gun to hunt for girl friends in the village as the learned judge stated. He was with a gun because he was a soldier. We tend to agree with the submission of Mr Ahimbisibwe that the language used by the trial judge in regard to the use of a gun was rather harsh. This was a borderline case to accidental shooting. The appellant had been on remand for over three years. We consider a sentence of 8 years on a young man who was a first offender who pleaded guilty to the indictment rather harsh and excessive in the circumstances of this appeal. We accordingly set it aside, and substitute it with a 4-year sentence. The appeal is therefore allowed.
Dated at Kampala this 18th day of April 2006.