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Time Spent In Custody To Be Considered When Passing A Sentence – Court of Appeal

In The Case Of Isaac Tumusiime V Uganda (Criminal Appeal No 110 Of 2012).

The Justices of the Court of Appeal JJA Elizabeth Musoke, Hellen Obura & Ezekiel Muhanguzi in their judgment delivered on the 25th June 2019 discussed mitigating factors in passing a sentence to include the time spent in custody.

This was an appeal arising from the High Court at Kampala before Her Lordship Hon Justice Monica Mugenyi dated 17th April 2012 in criminal session case no 34 of 2012.

The Appellant was convicted of murder contrary to S.188 and S.189 of the Penal Code and sentenced to 35 years’ imprisonment.

The background of the case was that on 6/01/2000 at about 7pm the Appellant together with another person went to Trans Africa Holiday inn where the deceased was a proprietor and were armed with guns. They made a representation that they had been deployed to guard at the inn since it was a period of insurgency in Kasese. The deceased was attacked at 11pm on his way home and postmortem showed that the cause of death was gunshot wounds.

The appellant was indicted, tried and convicted of murder and sentenced to death which was a mandatory penalty for murder at the time. However, following the Supreme Court decision in the case of Suzan Kigula & 417 others V AG, which abolished death penalty, the case was remitted to high court for mitigation, hearing and re sentencing.

The resentencing judge sentenced the appellant to 35 years and he appealed.

His grounds for appeal were that the resentencing judge had failed to consider the period spent on remand. However, the resentencing judge had taken into account both the mitigating and aggravating factors and had in fact taken into account the reform that is evident in the convict before reaching the sentence of 35 years.

The resentencing judge had also considered the range of sentence in similar offences for instance Wadada Moses V Uganda CACA No.0758 2014 and Susan Kigula &others V AG.

A plea in mitigation of sentence was made and the appellants sentence was reduced to 39 years’ imprisonment, but he appealed against the sentence and it was reduced to 25 years.

The Justices of Appeal in their decision emphasised that Article 23(8) of the Constitution makes it mandatory for a court while imposing a sentence to take into account the period a convict spent in lawful custody in respect of the offence before the completion of his/her trial. They therefore took into account the three years he had spent on remand and the fact that he was a first time offender.