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Onyango Destino & Another v Uganda (Criminal Appeal No. 302 of 2015)

Court of Appeal · [2020] UGCA 2107 · 2020 Appeal Allowed — Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only, from a High Court re-sentencing in a mitigation session following Attorney General v Susan Kigula
Decision
Sentences of 33 years set aside; each appellant resentenced to 27 years (25 years to serve after remand deduction) from date of conviction

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Holding

On appeal against sentence only, the Court of Appeal held that a court is not required to factor in a convict's right to remission under section 84 of the Prisons Act when sentencing, as remission is a matter for prison administration, not the court's jurisdiction. The Court found the resentencing Judge had properly weighed mitigating and aggravating factors. However, applying the principle of consistency in sentencing and comparing similar murder cases, the Court found the 33-year sentences manifestly harsh and excessive. It set them aside and substituted 27 years imprisonment for each appellant, less 2 years on remand, leaving 25 years to serve from the date of conviction.

Facts

Onyango Destino and Okumu Edward, with others at large, on 2 January 2007 at Mukuju Central, Mukuju sub-county in Tororo District, murdered Otabongo Abusolom. They were convicted of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to death by the High Court on 27 October 2008. Following Attorney General v Susan Kigula, the matter was remitted to the High Court for the appellants to be heard in mitigation. At a mitigation session, they were re-sentenced to 33 years imprisonment from the date of conviction, after deducting the 2 years spent on remand. The appellants, having been first offenders of youthful ages (20 and 28) with capacity to reform and family responsibilities, appealed against sentence only, contending it was manifestly harsh and excessive and that the resentencing Judge failed to account for their right to remission.

Issues

  1. Whether the resentencing Judge imposed a manifestly harsh and excessive sentence by failing to adequately consider the appellants' mitigating factors.
  2. Whether the resentencing Judge was required to have regard to the appellants' right to remission under section 84 of the Prisons Act when computing sentence.
  3. Whether the sentence of 33 years imprisonment fell within the sentencing range for murder.

Orders

  • Appeal succeeds.
  • Sentences of 33 years imprisonment set aside.
  • Each appellant sentenced to 27 years imprisonment, less the 2 years spent on remand.
  • Each appellant to serve 25 years imprisonment commencing from 27 October 2008.

Key headnotes

Sentencing — Appellate Interference — Manifestly Harsh and Excessive Sentence
An appellate court will not normally interfere with the sentencing discretion of a trial judge unless the sentence is illegal or is so manifestly excessive as to amount to an injustice.
Sentencing — Remission — Section 84 Prisons Act
A sentencing court is not required to have regard to a convict's right to remission under section 84 of the Prisons Act 2006, as remission is a preserve of the Uganda Prisons Administration in administering sentences and falls outside the court's sentencing jurisdiction.
Sentencing — Consistency and Uniformity in Sentencing for Similar Offences
Although no two crimes are identical, courts should strive for consistency in sentencing persons convicted of similar offences, and a sentence falling outside the range imposed in comparable cases may be set aside as manifestly excessive.
Sentencing — Mitigation — Duty to Record and Weigh Mitigating and Aggravating Factors
A judicial officer must record the matters submitted in mitigation and state that the sentence was arrived at with both mitigating and aggravating factors in mind, so that the convict is assured the court addressed its mind to the cited factors.

Legislation cited (8)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Prisons Act 2006 s.84
  • Constitution of Uganda article 23(8)
  • Judicature Act Cap 13 s.11
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, Guideline 19(2)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, Third Schedule Part 1
  • Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (10)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Kaddu Kavulu Lawrence v Uganda (Criminal Appeal No. 72 of 2018)
  • Wamutabane Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • R v De Havilland (1983) 5 Cr. App (R)s 109
  • Ramathan Magala v Uganda (Criminal Appeal No. 1 of 2014)
  • Atuku Margret Opii v Uganda (Criminal Appeal No. 123 of 2008)
  • Aytkanying Charles v Uganda (Criminal Appeal No. 8 of 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.