What informs judges’ rulings?

Judges at a recent function. The Sentencing Guidelines in place are meant to make the sentencing process more predictable.

What you need to know:

In the past, defilement would earn convict X 15 years in jail by judge X while convict Y would get two years from judge Y. The wide disparity had caused public outcry about unfair justice. It is this dilemma that necessitated the Judiciary to come up with Sentencing Guidelines to ensure uniformity of sentences.

The Ugandan law defines criminal offences and prescribes the corresponding penalties to be imposed by courts after conviction but judicial officers had in the past enjoyed a wide discretion while sentencing convicts. In 2011, former Arua Municipality Member of Parliament Hussein Akbar Godi was handed a 25-year jail sentence for the murder of his 19-year-old wife Rehema Caeser by Mukono High Court.
Godi was convicted on grounds that all the 30 prosecution witnesses presented by the state, were sufficient to prove his guilt.

In a similar case, the High Court sitting in Kampala convicted and sentenced to death by hanging businessman Thomas Nkulungira a.k.a Tonku for murdering ex-girlfriend Brenda Karamuzi, before dumping her body into a septic tank on August 12, 2011.
While passing the death sentence, Justice Albert Rugadia Atwooki, said he was giving the maximum sentence to deter other people from unlawfully taking away other people’s lives.
Although the two scenarios were similar, each convict received a different sentence.

Scenarios of having different court sentences for the same offence committed under similar circumstances are now fast changing with the enactment of Sentencing Guidelines. The guidelines which were issued in 2013 were designed to assist judges and magistrates in the sentencing decision making process.
Principal Judge Yorokamu Bamwine, during the launch of the Sentencing Guidelines said these were developed to address the perceived existence of inconsistencies in sentencing of similarly placed offenders.

How Sentencing Guidelines work
Andrew Khaukha, the secretary of the taskforce on Sentencing Guidelines, defines the guidelines as rules that provide standards that should bring some level of uniformity to the sentencing process. Khaukha, who is also the technical adviser of the Judiciary says the introduction of Sentencing Guidelines is a significant development in Ugandan criminal jurisprudence. Over the short term, Uganda’s Sentencing Guidelines should make the sentencing process more predictable. In addition, the guidelines should serve to ensure better compliance with the current legal requirements in the context of criminal sentencing. Over the long term, the Guidelines offer a mechanism that can inform significant policy reform.

Why we need them
The adoption of Uganda’s Sentencing Guidelines is helping to increase judicial consistency and to help ensure that the sentencing process is compliant with the many laws and court holdings that inform the sentencing process.
The nature of an offence is the first determinant of the kind of sentence an offender is likely to get. The gravity of the offence is also given priority as well as the consideration on whether the offence is rampant in the area or not, according to retired Grade One Magistrate, Araali Muhiirwa.

Considerations
“If you are in a place like Karamoja where cases of cattle rustling are rampant, the judicial officer in such a place will give tough sentences to deter the would-be criminals from continually stealing other people’s cattle,” says Muhiirwa.
Paul Gadenya, the Chief Registrar of Courts of Judicature says during sentencing, judicial officers consider whether the convict is a habitual offender or not.
“The moment the past record of the accused person is brought before the court, and suggests accordingly, the court must take into consideration those records of that serial offender in that jurisdiction.”
Gadenya says the age of the offender is also taken into consideration.

He explains that courts look out for the offender if the offender is a child, a juvenile or is of advanced age, that is, from 68 years and above.
“There is need to carefully assess and determine an appropriate sentence to give to such people. Their sentences will be different from that of a youthful offender,” he says.
The other aspect that courts look at is the impact of the offense on the victim in relation to injury, property or even the community where the offense was committed also matters a lot. He adds that the impact must be assessed by court to give an appropriate sentence.

“For instance, if the offence occurred in a coffee growing area where by an organised group of young men are moving around stealing people’s coffee, the economic and security impact on such an area must be looked into when the sentencing is being passed to the offenders once they have been convicted of the offence.
“At times, we (judicial officers) also take into consideration gender matters; that is, if the person to be convicted is a pregnant woman or breastfeeding mother. These conditions are considered by court so that these people are given favourable sentences,” Gadenya says.

The sentencing process
Gadenya (pictured below) says court is required to make two principle decisions: the type of sentence and its length (or, in the case of a fine, the amount). He outlines the following factors:
Seriousness of the offence
The court will consider the range of sentences as recommended by the Sentencing Guidelines, and then have regard to the details of each offence in order to assess its seriousness. This involves assessing the aggravating and mitigating features of the offence. Any hostility based on racial, religious, disability or sexual grounds demonstrated in the commission of the offence will be considered as an aggravating feature. For example, the use of a weapon in an assault is an aggravating feature, or the fact that a person is in a position of trust if he/she commits an offence of theft.

Defendant’s circumstances
The defendant’s character, his previous convictions (most relevant will be those for similar offences) and any personal mitigation, as expressed by the defendant’s advocate or (if unrepresented) by the defendant in person. An early guilty plea will go towards reducing the sentence—this can result in a discount in up to a third of the sentence, depending on when the plea is entered. The defendant’s personal circumstances will also be considered.

Passing sentence
After taking into account all the relevant information, and fixing the sentence accordingly, the court will announce the sentence in an open court, addressing the defendant directly and giving reasons for the decisions. Costs if there are any will also be announced at this time.

The sentences
Death
According to the Chief Registrar at the High Court Paul Gadenya says, death sentence is the most severe or maximum punishment as provided for in the Penal Code Act (PCA).
Death sentence is imposed only in capital offences like; treason, murder, rape and aggravated defilement and kidnap with intent to murder.

Following the landmark Susan Kigula case, the Supreme Court ruled that death sentence is no longer mandatory though it was not outlawed. The Kigula ruling meant that it’s at the discretion of the judicial officer to hand a death sentence depending on the aggravating circumstances which must fall under the ‘rarest’ of the ‘rarest’ cases.
“The law stipulates that a death sentence should be imposed in the rarest of circumstances such as animosity, says Gadenya.
He adds: “there are even people who meticulously pre-plan murders. This is proof that you had forethought the crime and thought through the consequences.”

Life Imprisonment
According the recent Supreme Court decision, life Imprisonment nowadays means being imprisoned for the rest of one’s natural life. But before the Supreme Court decision, life imprisonment, meant one would spend about 20 years in jail.
Custodial sentence
Custodial sentences, these range from hours to so many years in prison, sometimes one may be given a caution if the offence was not so serious; for example some traffic offences or if you are a first time offender if you explain in mitigation, the magistrate or judge may give you a caution.

Conditional discharge
You can as well get what we call a conditional discharge; here the court finds you guilty, does not send you to jail instead directs that you maintain a good behaviour.
Community service
There is also community service instead of being jailed in prison. This is usually for petty offences. Under this kind of arrangement, the offender is asked to do some work that benefits the community, that is why it’s called ‘community work’.
This is done to decongest the already crowded prisons.

Some of the sentencing guidelines for different offences
Offence Maximum sentence Starting point Sentencing range(appropriate sentence to be determined after taking into account the factors aggravating or mitigating sentence)
Manslaughter Imprisonment for life 15 years From 3 years up to imprisonment for life
Robbery 10 years 5 years From one year up to 10 years imprisonment
Attempted robbery 7 years 3 and a half years From 9 months up to 7 years imprisonment
Simple defilement Imprisonment for life 15 years From 3 years up to imprisonment for life
Attempted defilement 18 years’ imprisonment 9 years From one year up to 18 years
Defilement of idiots or imbeciles 14 years imprisonment 7 years From 8 months up to 14 years
Permitting defilement 5 years ‘imprisonment 2 and a half years From 3 months up to 5 years
Criminal trespass One year imprisonment 6 months From caution up to one year imprisonment
False accounting by a public officer 3 years’ imprisonment One and a half years From 6 months to up to 3 years’ imprisonment
Embezzlement 14 years’ imprisonment 7 years From 2 years up to 14 years’ imprisonment
Causing financial loss 14 years’ imprisonment 7 years From 2 years up to 7 years imprisonment
Solicitation and receipt of a gratification 12 years’ imprisonment 6 years From 3 years up to 12 years’ imprisonment
Bribery of a public official 12 years’ imprisonment 6 years From 3 years up to 12 years’ imprisonment
Abuse of office 7 years’ imprisonment 3 and a half years From one year up to 7 years imprisonment
Obtaining money by false pretense 5 years’ imprisonment 2 and a half years From 6 months up to 5 years
Theft 10 years’ imprisonment 5 years From one year up to 10 years imprisonment
Murder Death 35 years From 30 years up to death
Rape Death 35 years From 30 years up to death
Aggravated defilement Death 35 years From 30 years up to death
Robbery Death 35 years From 30 years up to death
Kidnap with intent to murder Death 35 years From 30 years up to death
Terrorism Death 35 years From 30 years up to death
Treason Death 35 years From 30 years up to death

Scale for determining of fines

Amount Maximum period
Not exceeding 0.5 of the currency point 7 days
Exceeding 0.5 of a currency point but not exceeding one currency point 14 days
Exceeding one currency point but not exceeding two One month
Exceeding two currency points but not exceeding three currency points 6 weeks
Exceeding three currency points but not exceeding six currency points 3 months
Exceeding six currency points 12 months .