Court name
HC: Criminal Division (Uganda)
Judgment date
26 February 2018

Uganda v Asobasi (Criminal Session Case-2017/) [2018] UGHCCRD 57 (26 February 2018);

Cite this case
[2018] UGHCCRD 57
Short summary:

Criminal law

Coram
Mubiru, J

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THE
REPUBLIC OF UGANDA

IN
THE HIGH COURT OF UGANDA SITTING AT ADJUMANI

CRIMINAL
SESSIONS CASE No. 117 OF 2017

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'>UGANDA style='mso-tab-count:1'> …………………………………………………… style='mso-tab-count:2'> PROSECUTOR

VERSUS

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'>ASOBASI
RICHARD …………………………………………………… style='mso-tab-count:1'> ACCUSED

style='mso-bidi-font-weight:normal'>Before Hon. Justice Stephen class=SpellE>Mubiru.

style='mso-bidi-font-weight:normal'>

 

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'>SENTENCE
AND REASONS FOR SENTENCE

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'>

 

When this case came up on 12th February,
2018
, for plea, the accused was indicted
with the offence of
Murder c/s 188 and 189 of the style='mso-bidi-font-style:normal'>Penal Code Act style='font-size:12.0pt;line-height:150%;font-family:"Times New Roman",serif;
mso-fareast-font-family:"Times New Roman"'>. style='font-size:12.0pt;line-height:150%;font-family:"Times New Roman",serif;
mso-fareast-font-family:"Times New Roman"'>It was alleged that on 13th
December, 2016 at Maali II Refugee Settlement Camp in
Adjumani District, the accused murdered a one class=SpellE>Maiku Luigi. He pleaded not guilty and the case was fixed
for commencement of hearing on 22th February, 2018. On
that day, the evidence of two prosecution witnesses was admitted during the
preliminary hearing and on additional witness gave viva voce evidence whereupon the prosecution closed its case. A style='mso-bidi-font-style:normal'>prima facie case having been established
against the accused, he was put to his defence and the case was adjourned to 23rd
February, 2018 for him to present his defence. On that day, the accused opted
to change his plea.
When
the indictment was read afresh to the accused, he pleaded guilty.

 

The court then invited the learned Resident State Attorney style='font-size:12.0pt;line-height:150%;font-family:"Times New Roman",serif'>Ms.
Bako Jacqueline,
to narrate the facts which she stated as follows
; the deceased
lived at Airi Central village but he sometimes he
would go and live in Maaji II Refugee Settlement Camp
where he had a female companion. On 13th December, 2016 at around
10.00 am, the deceased called his son one Ajiga
Joseph and told him that he has been cut with a panga
by the accused who was a neighbour at class=SpellE>Maaji
II where he was a neighbour. He saw cut wounds on
both hands, neck and other parts of the body. He was in a critical condition
covered in blood. He rushed the deceased to the Health Centre III but he died
before he could be examined. His boy was examined on P.F. 48 from class=SpellE>Adjumani Hospital where he was found to have sustained
bruises on his arms, abdomen and cut wound from the temporal mandibular joint
up to the carotid artery. The cause of death was Found to be spinal injury
following blunt trauma to the neck. He reported the case to Maaji
II police post whereupon the accused was arrested and charged with Murder c/s
188 and 189 of The Penal Code Act.
Upon arrest the accused handed over the panga which
he used to cut the deceased, to the police. He was examined on P.F 24 where he
was found to be 26 years old and mentally normal. The respective medical
examination reports too were admitted as part of the facts. Upon the accused
confirming these facts to be correct, he was accordingly convicted on his own
plea of guilty for the
offence of
Murder c/s 188 and 189 of the Penal Code Act.

 

I her submissions on sentence, the learned Resident State
Attorney stated that;
although the convict has no previous
record of conviction, the offence is rampant and in this specific case he acted
unreasonably towards the deceased, by attacking him with a panga
having disregard to his life. She prayed for a deterrent custodial sentence so
that he is kept out of circulation in order for him to learn that life is
sacred. She proposed that he is sentenced to twenty years' imprisonment to
deter him and other would be offenders
.

 

On his part, counsel for the convict Mr. class=SpellE>Arinda style='font-size:12.0pt;line-height:150%;font-family:"Times New Roman",serif'>
Herbert submitted that; the convict is a first offender. He appreciates the
nature of the offence against him and he is remorseful. He acknowledges that he
probably used excessive force which consequently caused the death of the
deceased. The circumstances of the death are such that the deceased was found
with the accused's brother's wife's home, on the accused' brother's bed and he
snapped. He proposed a sentence of twelve years' imprisonment. style='font-size:12.0pt;line-height:150%;font-family:"Times New Roman",serif;
mso-fareast-font-family:"Times New Roman"'>

 

In his allocutus, the convict stated that; he is sorry
for what happened and prayed for lenience. He joined Maaji
II Refugee Settlement Camp on 6th September, 2016 from South Sudan.
There was too much rain at the time and his brother offered him a hut with his
children and wife while he occupied the second. His wife and the wife of his
brother would cook together. On 13th December, 2016 the day the
incident happened, he found the deceased in the house and on the bed of his
brother. The convict was going somewhere with the panga
and he placed it by the door way. He wanted to notify the wife of his brother
that he was going somewhere. He called out and no one responded. He saw a pair
of sandals in the room. He thought his brother was in the house. He called out
the name of his brother Gama but there was no response. When he raised the
curtain he saw someone lying on his brother's bed. It was around 7.00 am and he
asked him why he spent the night there. The deceased told him to leave because
he was just a mere refugee. He is married with children, three of them. There
is no one to take care of them and his mother is old yet his father died. Some
of his brothers died in Sudan Eastern Equatoria,
Torit County. He prayed for lenience so that he can come out of prison and
educate his children.

 

Murder is one of the
most serious and most severely punished of all commonly committed crimes. The
offence of murder is punishable by the maximum penalty of death as provided for
under section 189 of The style='mso-bidi-font-style:normal'>Penal Code Act. In cases of deliberate,
pre-meditated killing of a victim, courts are inclined to impose the death
sentence especially where the offence involved use of deadly weapons, used in a
manner reflective of
wickedness
of disposition, hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of the sanctity of life
. This maximum sentence
is therefore usually reserved for the most egregious cases of Murder, committed
in a brutal, gruesome or callous manner. However, failed defences at trial are
relevant to finding extenuating circumstances and for that reason murders
involving ordinary provocation not amounting to legal provocation or emotional
disturbance, and accomplice liability may reduce moral blameworthiness and
provide grounds for not imposing a death sentence. The facts of this case
suggest such circumstances and it is for that reason that I have not imposed
the death sentence.

 

Where the death
penalty is not imposed, the starting point in the determination of a custodial
sentence for offences of murder has been prescribed by Item 1 of Part I (under
Sentencing ranges - Sentencing range in capital offences) of the Third Schedule
of The Constitution (Sentencing
Guidelines for Courts of Judicature) (Practice) Directions, 2013
as 35
years’ imprisonment. The sentencing guidelines though have to be applied
bearing in mind past precedents of courts in decisions where the facts have a
resemblance to the case under trial (see style='mso-bidi-font-style:normal'>Ninsiima v. Uganda Crim. C.A Criminal Appeal No. 180 of 2010).

 

I have for that
reason taken into account the current sentencing practices in relation to cases
of this nature. In this regard, I have considered the case of style='mso-bidi-font-style:normal'>Bukenya v. Uganda C.A Crim. Appeal No. 51 of
2007, where in its judgment of 22nd 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 18th 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 class=SpellE>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. class=SpellE>Businge Kugonza H.C. Cr. Sess.
Case No. 162 of 2012
the accused was convicted of murder after a full trial
and was on 11th 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 7th 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 17th 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 24th 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.

 

In light of the
fact that the convict fatally assaulted the deceased with a panga
and thereafter abandoned him by the roadside which in a way is indicative of
his hardness of heart and disrespectfulness of the sanctity of life, I consider
a starting point of thirty years' imprisonment. Against this, I have considered
the fact that the convict has pleaded guilty. The practice of taking guilty
pleas into consideration is a long standing convention which now has a near
statutory footing by virtue of regulation 21 (k) of The Constitution (Sentencing Guidelines for Courts of Judicature)
(Practice) Directions, 2013
. As a general principle (rather than a matter
of law though) an offender who pleads guilty may expect some credit in the form
of a discount in sentence. The requirement in the guidelines for considering a
plea of guilty as a mitigating factor is a mere guide and does not confer a
statutory right to a discount which, for all intents and purposes, remains a
matter for the court's discretion. However, where a judge takes a plea of
guilty into account, it is important that he or she says he or she has done so
(see R v. Fearon [1996] 2 Cr. App. R (S)
25 CA
). In this case therefore I have taken into account the fact that the
convict has pleaded guilty, as one of the factors mitigating his sentence but
because it has come belatedly at the point after he was put to his defence and
not at the earliest opportunity, I will not grant the convict the traditional
discount of one third (ten years) but only an eighth (four years), hence reduce
it to twenty six years.

 

I have considered
further the submissions made in mitigation of sentence and in his class=SpellE>allocutus
and
thereby reduce the period to twenty years’ imprisonment. In accordance with
Article 23 (8) of the Constitution and Regulation 15 (2) of The style='mso-bidi-font-style:normal'> 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 note that the
convict has been in custody since December, 2016. I hereby take into account
and set off a period of one year and two months as the period the convict has
already spent on remand. I therefore sentence the convict to a term of
imprisonment of eighteen (18) years and ten (10) months, 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 this sentence,
within a period of fourteen days.

 

style='font-size:12.0pt;font-family:"Times New Roman",serif'>Dated at class=SpellE>Adjumani this 26th day of February,
2018. …………………………………..

style='font-size:12.0pt;font-family:"Times New Roman",serif'> style='mso-tab-count:8'> Stephen
Mubiru

style='mso-tab-count:8'> Judge.

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'> style='mso-tab-count:8'> 26th
February, 2018.

style='font-size:12.0pt;line-height:115%;font-family:"Times New Roman",serif'>