Magala Ramathan v Uganda (Criminal Appeal 1 of 2014) [2017] UGSC 34 (20 September 2017)

# Magala Ramathan v Uganda (Criminal Appeal 1 of 2014) [2017] UGSC 34 (20 September 2017) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Magala+Ramathan+v+Uganda+%28Criminal+Appeal+1+of+2014%29+%5B2017%5D+UGSC+34+%2820+September+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F34%2Feng%402017-09-20) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Magala+Ramathan+v+Uganda+%28Criminal+Appeal+1+of+2014%29+%5B2017%5D+UGSC+34+%2820+September+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F34%2Feng%402017-09-20) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Magala%20Ramathan%20v%20Uganda%20\(Criminal%20Appeal%201%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20) __Save [ Download RTF (1.6 MB) ](/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (1.6 MB) ](/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2017/34/eng@2017-09-20/source.pdf) * * * * * Report a problem __ ##### Magala Ramathan v Uganda (Criminal Appeal 1 of 2014) [2017] UGSC 34 (20 September 2017) Copy citation __Save * __Document detail * __Related documents * __Citations 1 / 6 Citation Magala Ramathan v Uganda (Criminal Appeal 1 of 2014) [2017] UGSC 34 (20 September 2017) Copy Media Neutral Citation [2017] UGSC 34 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Criminal Appeal 1 of 2014 Judgment date 20 September 2017 Language English Summary ###### Flynote * Criminal law Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content 5 **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT O****F****UGANDA AT KAMPALA** **C****R****I****MINA****L****APP****E****A****L N****O****.****01 OF 2014.** **[CORAM****:****TUMWESIGYE, KISAAKYE, MWANGUSYA, MWONDHA****,** 10 **TIBATEMWA-EKIRIKUBINZA, JJSC****.]** **BETWEEN** 15 **MAGALA RAMATHAN** ..................................... . . .. . . . . .. . .. .. . . .. .. .. ..... .. . .. .... **AND** **APPELLANT** **UGANDA** ........................................................ . . .. . . . . . . .. . . . . . . . .. .. . .. . . . . .... . . . . .. . .. .. . .. . .. . .. .. **RESPONDENT** _20_ _[Appeal from_ _t_ _he dec_ _i_ _sion of the_ _C_ _o_ _u_ _rt of Appeal at Kampala by_ _O_ _pio-_ _Aweri_ _,__Balungi Bossa and_ _Kakuru_ _,__JJA_ _)__Criminal Appeal No_ _._ 0416 _of_ _2009_ _dated_ _22_ _nd_ _Ja_ _nu_ _ary_ _)__201_ _4.__J_ _**J**_ _**U**_ _**DGM**_ _**ENT**_ _**O**_ _**F TH**_ _**E CO**_ _**U**_ _**R**_ _**T**_ 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 1 • 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.** **Representat****i****on** 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 2 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****i****s conv****i****cted and sentenced to a term of** 10 **imprisonment for an offence, any period he or she** **spends in lawful custody****i****n 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: _"__O_ _ur_ _understanding of Section_ 2 _of the Trial on Indictment Act is that th_ _e_ _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 3 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 39****1** 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 **Gu****i****de to Cr****i****mina****l****Procedure****,****3****r****d** **E****d****i****tion (2006****)****at page****1****7****3** 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 Crim****i****nal App****e****al****N****o****. 1****23 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 submis****si****ons** 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 Jud****i****cature 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 innocen_ _t.__I_ _her_ _e_ _by 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: 6 _5_ _((We find that the appellant having acted in the manner that he_ _d_ _id and_ _his acti_ _o_ _ns having resulted in death of two people, the Judge c_ _o_ _rrectly_ _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. Vilakaz****i****2009 1 SACR 552 (SCA),** where the Supreme Court of South Africa held that: **In cases of ser****i****ous crime****,****the personal circumstances** **of the offender****,****by themselves****,****will necessarily recede** 7 " - 5 **into the background. Once it becomes clear that the** **crime is deserv****i****ng of a substantial period of** **imprisonment****,****the questions whether the accused is** **marr****i****ed or single, whether****h****e has 2 children or 3 ... are** **largely immateria****l****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****1****92 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****,****Republi****c****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 9 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 10 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 H****i****gh 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****, i****n such order as the court may** 15 **direct, un****l****ess 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 sentenc****i****ng discretion must be a** **rational process in the sense****t****hat it must be based on** **the facts before the court and must show the purpose** 11 · . 5 **the sentence is mean****t****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****i****s 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: 12 10 5 **(1) Where the court imposes consecutive sentences, the** **court shall first****i****dentify the material part of the conduct** **giving r****i****se 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 13 i • •• 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](/akn/ug/act/statute/1995/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. 14 \----- - ---------------- . 5 We so order. Dated at Kampala this _.__.__20th._ day of September 2017. **.........****.****.................****.****........** **JOTHAMTUMWESIGYE** 10 **JUSTICE OF THE SUPREME COURT****.** •**...................................** 15 **DR. ESTHER KISAAKYE** **JUSTICE OF THE SUPREME COURT.** 20 25 30 **EL D MWANGU A** **JUSTICE OF THE SUPREME COURT****.** .. ~ .••..•......... **FAITH MWONDHA** **JUSTICE OF THE SUPREME COURT.** ~ .............. ~.~.~~ . **PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA** **JUSTICE OF THE SUPREME COURT.** 1 5 #### __Related documents #### More documents like this one ▲ To the top >