[2023] UGCA 211

#### THE REPUBLIC OF UGANDA

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

(Coram: Muzamiru M. Kibeedi, Christopher Gashirabake, & Eva K. Luswata, JJA)

## CRIMINAL APPEAL NO. 294 of 2OL9

#### BETWEEN

#### BEINOMUGISHA MBUNDU::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### AND

### UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

# 15 (Appeal from the Judgment of Dr. Justice Flavian Zeije, J, sitting at Mbarara in Criminal Session Case No.153 of 2OL4, delivered on 4th day of March 2019)

### JUDGMENT OF THE COURT

# Introduction

20 1] The appellant was charged with the oflence of aggravated defilement contrary to Section 129 (lf (21 (3) and 4(af of the Penal Code Act Cap. 12O (PCA). Thc particulars of the indictment were that on 17th day of September, 2013, at Embare Village in Kiruhura District, the appellant performed a sexual act with KD, a person aged 6 ycars old.

### Brief Facts

2l We were able to confirm from the record the following facts on which the appellant's conviction was based. The victim who we

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⁵ shall for the purpose of the appeal refer to as KD, was on 13/9/2013 walking home from school with her brother Rwamiryo. They met the appellant who grabbed KD, dragged her into the bush and had sexual intercourse with her in the presence of Rwamiryo. KD returned home in tears, and when her grandmother asked her into explain the cause of her distress, she refused to respond because the appellant had refused her to disclose her ordeal, and had in addition promised to give her a hen. However, Rwamiryo intervened and revealed what the appellant had done. KD's grandmother checked the child's vagina and found that she had been defiled. She immediately took the child to hospital then reported the matter to the Kikatsi police leading to the appellant's arrest and his subsequent indictment and prosecution. At the trial, the appellant denied the offence but upon full trial, he was convicted and sentenced to 35 years' imprisonment, thus this appeal. 10 15 20

#### Representation

³⁰ this Court and Section 132(1) 2) of the Trial on Indictments 3] At the hearing of the appeal, the appellant was represented by Mr. Sam Dhabangi on State brief. The respondent was represented by Ms. Innocent Aleto, State Attorney from the office of the Director of Public Prosecutions, who for the day's proceedings held the brief ol Chief State Attorney Angutoko Immaculate, of the same ofhce. During the proceedings of 6/12/2022, Mr. Dhabangi submitted that his instructions were to proceed against sentence only. He accordingly prayed for leave under Rule 43(31 (a) of the Rules of

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- ⁵ Act, which we granted. In essence, that prayer meant that the appellant intended to abandon the first ground of appeal. On the same day, we in addition allowed to adopt written submissions and authorities which were filed by both counsel prior to the hearing date. This appeal has thus been disposed ofon the basis of written arguments only. - 4l While preparing our decision in this appeal, we noted that the appellant's counsel filed two independent memoranda of appeal on29/lO/2019 and6/ll/2019 respectively. He in addition hled two sets of written arguments on 28 / ⁷¹/ 2022 and 26 / 5 / 2027 . \t is not clear which set of arguments were corresponding to either memorandum of appeal, and unfortunately during the proceedings of 6/ll/2019, counsel did not clariff which of the two memorandum of appeal he sought to rely on when he prayed to submit on sentence alone. It is probably due to that confusion that Ms. Angutoko prayed that we dismiss the appeal because no supplementary memorandum of appeal was hled, one which either set of submissions could be aligned. - 5l Although we agreed with Ms. Angutoko's argument, we note that legal arguments were hled by both counsel before the appeal was called for hearing on 6/72/2022. The apparent confusion was partly cured when Mr. Dhabangi applied in Court to abandon other grounds and proceed against sentence only. We note as raised by Ms. Angutoko that no supplementary memorandum was liled as required under Rule 67( 1) of the Rules of this Court. Indeed Mr. Dhabangi did not seek leave to hle one, but there was

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- ⁵ no contest from the State against the prayer made orally. That being the case, we made the decision to consider the memorandum of appeal hled first in time on 29 I \O l2Ol9, and the submissions fited on 28 I 11, 12022 as the legal arguments supporting it. - 6l It was stated in the memorandum of appeal filed on 29 / lO /2019 as follows: 10 - i. That the l\*arned Trial Judge erted in laut and fact uhen he found. that the appellant uas posltlaelg identiJied. uthereas not. - ii. That the Learned the Trial Judge erred in law and fact uhen he meted out a nanifestlg harsh and excessiae sentence against the appellant.

# Submissions for the appellant on ground two

7] As the precursor to his submissions, appellant's counsel stated that his client who was indicted for the offence of aggravated defilement contrary to Section 129 (1) (21 (3) & (4) Penal Code Act, preferred to drop all other grounds of appeal and proceed against one ground on sentence only. As shown above, those submissions were repeated orally in Court and we allowed the new position. Although counsel clearly bundled up his pleadings and submissions, it would be an injustice to summarily dismiss the appeal. However, our resolution of the appeal will be limited to ground two only.

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- ⁵ 8] Mr. Dhabangi considers the sentence of 35 years' imprisonment as manifestly excessive, and in his submissions, prayed that we set it aside in line with our powers under Section 11 of the Judicature Act, (Cap 13). To buttress his submissions, Mr. Dhabangi drew our attention to previously decided cases where more lenient sentences for the same offence were allowed. He quoted for example that of Taremwa Apollo versus Uganda, CA Criminal Appeal No. 0193 of 2OL4 in which an appellant was convicted of defiling an eight-year-old girl, had his sentence reduced froro 21 years to 12 years' imprisonment. Counsel submitted in addition that the trial Judge ignored mitigating factors presented for the appellant which occasioned a failure of justice. In that regard he relied on the decision of Livingstone Kakooza Vs Uganda, SC Criminal Appeal No. 17 of 1993 followed in Ainobushobozi Venancio versus Uganda, CA Criminal Appeal 242 of 2OL4. Counsel stated in particular the three mitigating factors that the accused was a first time offender and bread winner of his family who had prayed to Court for a lenient sentence, were not considered. 10 15 20 - 9] Mr. Dhabangi was of the view that first offenders are treated quite differently from convicts with a previous criminal record for the former present a greater opportunity for being rehabilitated. That a custodial sentence of 35 years' imprisonment can be a mental blow for any hope of one being reintegrated into society as a responsible citrzert, husband and father.

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- ⁵ ¹⁰¹Although not specifically raised as a ground of appeal, counsel argued in addition that the trial Judge failed to deduct the period of five years and six months that the appellant had spent on remand. In particular, that the Judge's order that the remand period appeared " exclusiae of the sentence and not'inclusive o;f it' contravened Article 28(3) of the Constitution and what was set out in the Supreme Court decision of Rwabugande Moses versus Uganda, SC Criminal Appeal No. 25 of 2Ot4- That in that case, the Supreme Court while departing from its earlier decision, pronounced itself at length on the meaning of the phrase "taken into account" in Article 23(8) of the Constitution. After extensively quoting from that decision and Guideline No. 15 of the Constitution (sentencing Guidelines for Courts of Judicaturef (Practice Directions) 2OLS (hereinafter the Sentencing Guidelines), counsel argued that the period spent on remand must be arithmetically deducted from the sentence imposed. For comparison, Mr. Dhabangi cited decisions made earlier to Rwabugande's case including that of Kizito Senkula versus Uganda, SC CriminalAppeal No. 24 Of2OO1 and Kabuye Senvewo versus Uganda, SC Criminal Appeal No. 2 Of 2OO2 which had discussed what was considered to be the correct interpretation of Article 2B(3) of the Constitution, at the time they were cach made. 10 15 20 25 - 11] In conclusion, Mr. Dhabangi moved Court to consider setting aside the sentence for being harsh and illegal. He prayed that the sentence be substituted for one of seven years and from that, ^a deduction of five months and two days be made.

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# ⁵ Submissions for the Respondent

- l2l Ms. Angutoko opposed the appeal. Citing extensive authority for example that of Blasio Ssekawooya versus Uganda, Criminal Appeal No. 1O7 of 2OO9, she argued that sentencing is always the discretion of the trial Judge. She then highlighted several principles that the Court of Appeal should consider before making a decision to interfere with the sentence of 35 years' imprisonment. Briefly that a manifestly harsh and excessive sentence or one that is illegal can be set aside. Further that the appellate court could interfere if the trial Judge failed to consider mitigating or aggravating factors, or proceeded on any wrong principle. - 13] Ms. Angutoko submitted that considering the proven age of the victim, the maximum punishment of defilement, and also considering that the sentencing range for the offence given in the third schedule of the Sentencing Guidelines, the sentence of 35 years' imprisonment, was neither manifestly harsh nor excessive in the circumstances. Further, Ms. Angutoko did not agree that the trial Judge did not take into account the mitigating factors. She quoted excerpts from the sentencing ruling which in her view showed that the Judge had captured all factors as submitted by either counsel at the trial. That it was only after balancing the aggravating and mitigating factors that the Judge meted out the sentence, which in counsel's view, was lenient in the circumstances.

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⁵ 141 In conclusion, Ms. Angutoko submitted that since the sentence was delivered on 4/312019 after the decision in Rwabugande Moses versus Uganda (Supra) the Judge ought to have made an arithmetic deduction of the period spent on remand. Counsel conceded that as a result, it was an illegal sentence, one which can be corrected by this Court under Section 11 of the Judicature Act, by making the deduction of the remand period in accordance with Article 23 (8) of the Constitution. 10

# Analysis and decision of the Court

151 We have carefully studied the record, considered the submissions for both sides, as well as the law and authorities cited therein. A first appeal from the decision of the High Court requires this Court to review the evidence and make its own inferences of 1aw and fact. See: Rule 30 (1) (a) of the Judicature (Court of Appeal Rulesf Directions S. I 13-10 (COA Rules) which is in tandem with the decision of the Supreme Court in Kifamunte Henry V Uganda, SC Criminal Appeal No. 10 of 1997, where it was held that on a first appeal, this court has a duty to: 15 20

> " . . .reuiew the euidence of the case and to reconsider the mateials before the tial Judge. The appellate court must then make up its own mind not disregarding the judgement appealed from, but carefullg uteighing and consideing it."

¹⁶¹ This appeai considered a harsh and ex was lodged against sentence only. The appellant sentence oi 35 y".."' imprisonment as manifestly cessive. His s ^Cific complaint against the sentence

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⁵ was twofold. Firstly, that the trial Judge did not consider the mitigating factors and secondly, that considering sentences given for previous convictions of aggravated defilement, the present sentence was harsh and excessive. Appellant's counsel emphasized that the appellant a first offender, should have been treated as one who could reform after rehabilitation. Although not raised as a ground, his counsel in addition submitted that by failing to deduct the period spent on remand, the resultant sentence was illegal.

Conversely, Ms. Angutoko with reasons given above did not consider the grounds of appeal as valid. In her view, the facts presenting here and the provisions of the law on defilement, marched the sentence given. However, she did not oppose the submission that the Judge gave an illegal sentence. She conceded that in his sentencing ruling, he omitted to deduct the period spent on remand and accordingly invited this Court to correct that anomaly by following what is provided in the Constitution.

- l7l It has been stated many times before by this Court that our powers to interfere with a decision on sentence are very limited and thereby must be approached with much caution. We may interfere only in cases where it is shown that: - a. The sentence is illegal. - b. The sentence is manifestly harsh or excessive. - c. There has been failure to exercise discretion. - d. There was failure to take into account a material factor.

e. An error in principle was made.

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- ⁵ See Ogalo S/O Outoura uersus R (7954) 27 D. A. C. A. 27O, Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 1O of 1995; Kamya Johnson Wavamuno versus Uganda, SC Criminal Appeal No. 16 of 2OOO and Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of 2OO1. - 18] On 6/72/2022, both counsel were given opportunity to present their cases in mitigation and otherwise. It was stated for the prosecution that the appellant, a first offender, had committed an offence that carried a maximum sentence of death. That he defiled a young girl whom he introduced to sex. The prosecutor prayed for a deterrent sentence of 45 years' imprisonment. Conversely, it was submitted in mitigation that the appellant, a first time offender and bread winner of his family, had been on remand for a considerably long period of 5 years, 5 months and 2 days. His counsel prayed for a lenient sentence of less than 45 years' imprisonment. The Judge made a short sentencing ruling. He stated that; 15 10 20

"the accused defiled a Aoung girl tuho tuas fit to be his grandchild. He should haue been her protector but instead, he turned into a monster. He introduced sex to a Aoung and innocent girl. The offence of defilement is on the increase in this region. In the result, I sentence the accused to 35 gears in pison. The peiod spent on remand shall be taken into account and is inclusiue o the sentence. " Emphasis applied

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⁵ 191 Guideline 36 of the Sentencing Guidelines sets out all the possible mitigating factors that courts may consider during sentencing for the offence of aggravated defilements as follows:

## 36. Factors mitigating a sentence for defilement.

In considering a sentence for defilement, the court shall take into account the following mitigating factors-

(a) lack of pre-meditation;

- (bf whether the mental disorder or disability of the offender was linked to the commission of the offencel - (c) remorsefulness of the offender; - (df whether the offender is a first offender with no previous conviction or no relevant or recent conviction; - (ef the offender's plea of guilty; - (ff the difference in age of the victim and offender; or

(gl any other factor as the court may consider relevant.

In the Supreme Court decision of Aharikundira Yustina versus Uganda, SC Criminal Appeal No. 27 of 2015, the Court strongly emphasised the importance of an articulate consideration of mitigating factors presented. In the instant case, we note that during the allocution proceedings, the appellant's counsel mentioned the factors under Guideline 36 (d), as weil as the appellant's family responsibilities which would fal1 under Guideline 36(9) as applicable in the circumstances of the appellant. The trial judge failed to consider them, a decision made contrary to established principle, one which 1n our vlew resu lted

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- ⁵ into a miscarriage of justice. We therefore find that the resultant sentence was manifestly excessive and harsh in the circumstances. - 20] There was no contest to the objection raised against the legality of the sentence. We do agree with both counsels' submissions on that fact. The decision here was rendered on 4/3/2019 after the land mark decision on sentencing in Rwabugande Moses versus Uganda, (supra). It was a decision that made specific directives on how the remand period should be treated during sentencing. The Justices held in part that:

"Article 23 (B) of the Constitution (supra) makes it mandatory and not discretional (sic) that a sentencing pdicial officer accounts for the remand peiod....lt is our uiew that the taking into account of the peiod spent on remand by a court is necessaily aithmeticaL Ihls Ls because the peiod is knoutn with certainty and precision; consideration of the remand period should therefore necessailg mean reducing or subtracting that pertod from the final sentence. That period spent in latuful anstody prior to the tial must be specif.cally credited to an accused. "

21] It is clear that in his decision, the trial Judge included the period spent on remand but did not mathematically deduct it. He fell short of accounting for that period as directed in the Rwabugande decision, and as a result, rendered an illegal sentence. 25

> In conclusion, we find that the sentence of 35 years'imprisonment rendered against the appellant was both manifestly harsh and excessive as well as illegal. We agree as prayed lor the appellant to set it aside. We accordin y, invoke the provisions of Section I

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- ⁵ 11 of the Judicature Act, which grants this Court the same powers as the trial court, to impose a sentence that suits the law and the circumstances of this case. - 221 However, before we decide on an appropriate sentence, it may be useful to apply the consistency principle as a guide. The principle is provided for in Paragraph 6(C) of the Sentencing Guidelines, and has also been the subject of many decided cases. It requires that we consider sentences that have been imposed in previous cases that have similar facts or are of a similar nature. For reference see lor example: Alex Biryomunsi versus Uganda, CA Criminal Appeal No. 464 of 2O16 that lollowed the decision in Katureebe Boaz & Anor versus Uganda, SC Criminal Appeal No. O66 of 2OLL. - 23] In Babua Roland versus Uganda, Criminal Appeal No.3O3 of 2OLO l2OL6] UGCA 34, an appellant who defiled a 12-year-old niece of his partner, was sentenced to life imprisonment. On appeal, this court, found that sentence as harsh and excessive and substituted it with a term of 18 years' imprisonment. Yet in Ninsiima Gilbert versus Uganda, Criminal Appeal No. O18O of 2OLO lz0l4l UGCA 65, an appellant convicted of aggravated deltlement of a victim of 8 years, had an imprisonment term of 30 years' reduced to 15 years' by this Court. We have also come across decisions where more severe sentences have been upheld on appeal. For example, in Sentongo Latibu versus Uganda, CA Criminal Appeal No. 73 & 111 of 2OL6, this Court reduced a sentence of 48 years to 25 years' imprisonment. In Ssenoga Frank

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- versus Uganda, CA Criminal Appeal No. 74/2010, this court gave a sentence of 28 years and four months' imprisonment for the same offence. - 24] We do not consider ourselves bound to follow those decisions to the letter, but they at least give the sentencing range evident in the higher Courts. We take that into account, and also consider the facts of this case as a guide. - 25] The facts of this case are that the appellant, a 38-year-old man way laid a child of only six years and forcefully sexually ravished her, in the presence of her brother, also a minor. The appellant admitted that prior to the incident, he knew both the victim and her guardian. As pointed out by the trial Judge, he had the duty of protecting and nurturing the child. Instead, he took her innocence by introducing her to sex at such a tender age and in a painful manner. We take judicial notice of the fact that defilement, a grave offence, has persistently remained one of the most common and notorious offences in the country. On the other hand, the appellant a married man presented that he was a first time offender, with a wife and children to care for. In addition, he had spent a considerably long period on remand before his trial and conviction, and prayed for a lenient sentence. Those are compelling mitigating factors but in our view, when balanced on a fair scale, the aggravating factors appear to outweigh what was presented in mitigation. - 26] Accordingly, when all is considered, we find a sentence of 18 years' imprisonment appropriate in the circumstances. From that Miate<br>Miate

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⁵ sentence we proceed to make a deduction of hve years, five months and two days being the period the appellant had spent on remand before his conviction. He shall accordingly serve a term of twelve years, six months and twenty -five days in prison with effect from 4/312019, the day he was convicted.

F\ Dated this \q day of ...... N. Sr2.s1r........, 2023. 10 15 20 25 30 MUZAMIRU M. KIBEEDI JUSTICE OF APPEAL \ CHRISTOPHER GASHIRABAKE JUSTICE F APPEAL K. LUSW JUSTICE O