[2023] UGCA 193

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#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

### CRIMINAL APPEAL NO: 0241 OF 2016

#### **ANGIYA IVAN ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

#### **UGANDA :::::::::::::::::::::::::::::::::::**

[Appeal from the decision of the High Court of Uganda at Mukono (Hon. Justice *Margaret Mutonyi, J) in Criminal Session Case No. 0035 of 2016*

# **CORAM: HON. JUSTICE GEOFFREY KIRYABWIRE, JA** HON. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JA HON. JUSTICE OSCAR JOHN KIHIKA, JA

### JUDGMENT OF THE COURT

## **Introduction**

The Appellant was indicated for the offence of Aggravated Defilement contrary to Section 129(3) and (4) b of the Penal Code Act, Cap. 120 (PCA).

The prosecution's case at the trial, which was admitted by the Appellant, was that the Appellant, on the 23^rd day of June 2012, performed a sexual act on a girl aged 9 years who, for purposes of this appeal will be referred to as "AN" or "victim". At the trial, the Appellant pleaded guilty to the offence and was convicted on his own plea of guilty, and sentenced to 12 years imprisonment.

#### **Grounds of Appeal**

The Appellant, being dissatisfied with the decision of the trial Court lodged this appeal on the following grounds: , Je

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1. Thazt the lcarned fr{.al Judge erred 7n laut and tact uhen she pa,ssed an Tllcgal sentence of D gears ultltout subtradlng tle perlod the Appellant spent on remand therebg occasTonlng a mlscarrlage of Jttstlce.

The Appellant prayed that the period he spent on remand be deducted by this court from the sentence passed by the trial Court against the Appellant.

## Representations

At the hearing of the appeal, Ms. Shamim Nalule Rukiya represented the Appellant; while Ms. Nabisenke Vicky, an Assistant Director of Public Prosecutions from the office of the Director of Public Prosecutions (DPP), represented the Respondent. The Appellant followed the court proceedings from prison via audio-visual link technolory.

## Leave to appeal agslnlt the rentence only

The Appellant sought leave under Section 132 (l) (b) of the Trial on Indictment Act (TIA) to appeal against sentence only. The Respondent did not object to the application and leave was accordingly granted by this Court.

The parties also sought the leave of Court to adopt their Written Submissions as their lega1 arguments in this appeal which leave was equally granted.

## Appellant's submlsalong

Counsel for the Appellant submitted that the learned trial Judge passed an illegal sentence when she did not deduct the period spent on remand as required by Article 23(8) of the Constitution, Guideline 15(1) and (2) of the Constitution (Sentencing Guidelines for courts of Judicature) (Practice) Directions 2003 arrd the Supreme Court decision of Rwabugende Moses Vs Uganda SCCA 25 OF 2014.

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Counsel concluded by praying that this Court be pleased to allow the appeal and deduct the period of 4 years and 2 months spent by the Appellant on remand from the sentence of 12 years.

## Recoondent's ReDly

In its Written Submissions, the Respondent conceded that illegal as the learned trial Judge did not specifically take period spent on remand by the Appellant. the sentence was into account the

Counsel prayed that this Court does remedy the anomaly period of 4 years and 2 months which the Appellant spent on by deducting the remand.

# Duty ofthe Flrat Appellate Court

For this Court, as a first appellate court, to interfere with the sentence of a trial Court it must be shown that any one or more of the factors below exist:

- 1. The sentence is illegal. - 2. The sentence is harsh or manifestly excessive. - 3. There has been failure to exercise discretion. - 4. There was failure to take into account a material factor. - 5. An error in principle was made

See: Rutabugande lfroses Vs Uganda" Supreme Court Crimlnal Appeal No. 25 oJ 2074; Kgallmpa Eduard. Vs Uganda, Suprerne Coutt Cr'lmlnal Appeal No. 7O of 1995; Kannya Johnson Wa uamuno Vs Uganda, Supreme Court Crlmlnal Appeal No. 76 ol 2OOO; and Klualabye Bentard Vs Uganda, Supretne Court Crimlnal Appeal No. 743 of 2OO1.

F\rther, the court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See: Ogalo S/O Ououra Vs Republtc [79541 24EACA27O. 4!

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We sha-ll bear in mind the above principles while resolving this appeal and our duty as a first appellate court, to re-appraise a.ll the evidence that was adduced before the trial court ald come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 3O ( 1)(a) o! the Judicature (Court of Appeal Rules) Dlrectlons, S.f 73-7O; Eredrtck Zao.butc as. Orlent Bank Ltd C'ktll Appeal No. 4 of 2006; and Kltannuntc Henry us. Uganda SCU Cr. Appeal no. 70 oJ 1997 the Supremc Court of Uganda-

## Analvsla

In ttre instant case, the appeal is against sentence only, therefore it will not be necessary to delve into re-appraisa-l of evidence. The Appellant was convicted having entered into a plea bargain and agreed to take 12 years' imprisonment.

It is necessary to quote what it is that the Appellant said during the proceedings and what the learned trial Judge said, while sentencing the Appellant;

" Nyan-zi: We haue no problem with 12 years,

Court: Plea baroain aqreement is endorsed bu court and conuict to serue 12 uears effectiue from todau.

1 9/83 Hon. Ladg Justice Margaret Mutonyi

JUDGE 2"d September, 2O16"

Artlcle 23 (81 of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

tn lmDostnq the tenn of imoisonment. " IEmphasis added] "Wtere a person is conuicted and sentenced to o term of imprisonment for an offence, ang period he or she spends in lauful cttstodg in respect of the offence before the ampletion of his or her tial shall be taken into account 4

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The above underlined words are, in our view, the operative words when resolving the issue of illegality raised by the appeal. ln tbe Ruabugande case (supra), the expression " take into account" the remand period was interpreted by the Supreme Court to involve arithmetical deduction. The court held as follows:

olt ls our vteut that the taklng lnta account of the perlod spent on retnand bg a court is necessarlly arlthnetlca/. ?his ls because the perlod is knoun uith certolntg and preclslon; conslderatlon oJ the rentand perlod should therefore necessarllg tncan reduclng or subtractlng that perlod trom the ffnal sentzftce. That perlod spent ln laqful crstady prlor to the trlal must be spec'lficallg credlted to an accttsed.'

Subsequently the Supreme Court clarified the meaning of the expression "take into account" in the case of Abelle Asuntzn Vs Uganda, Suprerne Court Crlmlnal Appeal No.66 of 2ol5-(delivered on 19th April 2018) as follows:

u9lfhat ls matedal ln [the Ruabugande] dec-lslon ls tho:t the period spent ln lauful cttstodg prlor to the trlal and sentznclng ol a convlct tnust be taken lnto account and accordlng to the case oJ Ruabugande that remand perlod should be credlted to a convict uhen he ls sentenced to a terTn oJ lmprlsonment. Thls Court used the uords to deduct and ln an arlthmetlcal wag as a gulde Jor the sentenclng Couras but those m.ctaphors are n,ot derl\*d lrom the Constlttttlon.

Where a sentenclno Court hrrs clearlu de rnonstratr'd that lt has ta.ken lnto rrccoulnt the perlod sr,en:t on remand to the credlt o.f the convlct. the sentznce would not lntzrfered utth bu the aooellate Court onlu because the sente .htdoe or Justlces used dlfferent utords ln thelr fudqrncnt or mlssed to sto:tc tha;t theg deducted the per-lod. spent on remond. These mag be lssrres of stgle tor whlch a Page l5 4

lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the **Constitution."** [*Emphasis added*]

Given the above, the main issue for resolution in this appeal is whether, the trial Court took into account the period spent by the Appellant on remand and accordingly credited it to him while passing sentence.

In the case before us, it is our view that the learned trial Judge clearly did not take into account the period that the Appellant had spent on remand. We accordingly allow the appeal and set aside the sentence of the trial Court.

Having set aside the sentence, it follows therefore that we ought to impose a fresh one. Section 11 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

"11. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

In this case, the Appellant was convicted on a plea bargain and took 12 years' imprisonment however, the learned trial Judge did not deduct the period spent on remand.

We have considered the four years and 2 months period the Appellant spent on remand. We consider 12 years' imprisonment as the appropriate sentence in the circumstances of this case. Taking into account the period of approximately 4 years and 2 months spent by the Appellant in pre-trial remand, the Appellant shall serve a term of 7 years and 8 months' imprisonment commencing from the 02^nd day of September 2016, the date of conviction.

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We So Order.

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. **. . . . . . . . . .**

GEOFFREY KIRYABWIRE Justice of Appeal

MUZAMIRU MUTANGULA KIBEEDI **Justice of Appeal**

**..........** OSCAR JOHN KIHIKA Justice of Appeal

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