[2024] UGCA 251

#### THE REPUBLIC OF UGANDA

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

#### CRIMINAL APPEAL NO. 194 OF 2014

(Arising out of the Judgment and orders of His Lordship V. T Zehurikize at *Mbarara in Criminal Session No. HCT-05-CR-CSC-0278-2012 dated 23^rd July* $2013)$

#### BIRUNGI CHARLES ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### UGANDA :::::::::::::::::::::::::::::::::::

### **CORAM: HON. JUSTICE EVA LUSWATA, JA** HON. JUSTICE OSCAR KIHIKA, JA HON. JUSTICE ASA MUGENYI, JA

#### **JUDGMENT OF COURT**

The Appellant was indicted of the offence of Aggravated Defilement contrary to Section 129 (3) & (4) of the Penal Code Act and was convicted on his own plea of guilty. He was sentenced to 18 years' imprisonment. The Appellant was dissatisfied with the sentence passed by the trial court and filed this appeal on the following grounds;

- 1. Thee learned trial Judge erred in law and fact when he sentenced the Appellant to a harsh and excessive sentence. - 2. The learned trial Judge erred in law when he sentenced the Appellant without deducting the time the Appellant had spent

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on rema.nd thereby occasioning a miscarriage of justice to the Appellant.

### Background

The facts of the case as accepted by the trial court are that sometime in the year 2O1O Birungi Charles (the Appellant) found the victim, one Kushemererwa Anaslazia aged 11 years alone at her home in Mpasha cell in Ibanda District. The Appellant took advantage and forcefully had sexua-l intercourse with the victim without a condom. The Appellant thereafter warned the victim not to tell anyone and indeed she feared to tell her mother. ln 2Ol1 the victim developed a skin condition on her leg. She was treated but there was no improvement. On 6th March 2Q12 lhe victim's mother took her to Ruhoko Health Centre and the Doctor advised her to take the victim for an HIV test.

The victim was tested and she was found to be HIV positive. That the victim's mother then asked the victim if she had ever had sexual intercourse with anyone and she revealed to her that in the year 201O the Appellant forcefully had sexua-l intercourse with her. The matter was reported to police and the Appellant was arrested, indicted and convicted of the offence of aggravated defilement on his own plea of guilt.

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### Representation

At the hearing of this appeal, Mr. Tumwebaze Emmanuel on State brief, appeared for the Appellant while Ms. Happiness Ainebyona appeared for the Respondent. Both parties filed written submissions which were adopted as their legal arguments.

The appellant sought leave under Section 132 (1) (b) of the Trial on Indictment Act (TIA) to appeal against sentence only and leave was accordingly granted by this Court.

## Appellant's submissions

### Ground one

Counsel relied on the decision in Kiwalabye Vs Uganda Supreme Court Criminal Appeal No. 143 of 2OO1 for the proposition that an appellate court cannot interfere with the sentencing discretion of the trial court unless it is satished that the sentence imposed is manifestly excessive or so low as to amount to a miscarriage ofjustice or where the trial court ignores to consider important matters which ought to be considered. Counsel submitted that there is need for consistency and uniformity while sentencing persons convicted of similar offences.

Counsel argued that the sentence of 18 years'imprisonment was harsh and excessive and is not consistent with sentences in similar cases. Counsel relied on the decision in Kibaruma John Vs Uganda CACA No. 225 of 2O1O in which an appellant defiled a girl of 9 years had been sentenced to 15 years'imprisonment and on appeal, was

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sentenced to 11 years' imprisonment. Counsel argued that the appellant in this case had no knowledge of this HIV status and ought to be given a more lenient sentence.

## Ground two

Counsel submitted that the Appellant had spent 17 months on remand and the period was not arithmetically deducted by the trial Judge. Counsel relied on the decision in Rwabugande Vs Uganda POln UGSC (3 March 20l7l for the notion that taking into account the period spent on remand is arithmetical in which case the period is known with precision and certainty. Counsel prayed that this court invokes its powers under Section 11 of the Judicature Act to resentence the Appellant and deduct the period he spent on remand.

# Respondent's submissions

Counsel submitted that it is settled law that sentence is a discretion of a trial judge and an appellate Court will only interfere with a sentence imposed by the tria-l Court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive. Counsel argued that the Appellant's contention that a sentence of 18 years' imprisonment in the circumstances was manifestly harsh and excessive was a joke and mockery to the victim.

Counsel argued that the circumstances of this case are deserving of a higher sentence considering that the appellant was a neighbor to

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the victim, he knew his status as being HIV positive and went ahead to not only defile the victim but infected her with HIV.

Regarding the illegality of the sentence, counsel submitted that the appellant was sentenced on the 23'd October 2014, way before the decision in Rwabugande Moses V Uganda SCCA No. 25 of 2O15 which requires an arithmetic deduction of the period spent on remand. Counsel argued that from the wording of the sentencing order of the trial Judge, the period the Appellant spent on remand was duly considered.

# Court's consideration of the appeal

# Duty of the First 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.' Rnrabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2Ol4; Kyalimpa Edward Vs Uganda, Supreme Court Criminal Appeal No. 1() of 1995; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of

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# 2OOO; and Kiwalabye Bernad Vs Uganda, Supreme Court Criminal Appeal No. 143 of2OO1.

Further, 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 Owoura Vs Republlc [19s41 24 EA CA 27O.

We sha-ll bear in mind the above principles while resolving this appeal while, at the same time, not losing sight of the general duty of this court, as first appellate court, to re-appraise all the evidence that was adduced before the trial court and 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 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10; Fredrick Zaabwe vs. Orient Bank Ltd Civil Appeal No. 4 of 2o;o6; and Kifamunte Henry vs. Uganda SCU Cr. Appeal no. 10 of L997 the Supreme Court of Uganda.

### Analvsis

The appea,l is against sentence only. It is the appellant's claim that the sentence is illegal on account of the failure of the trial Judge to arithmetically deduct the remand period in accordance with the Supreme Court decision in Rwabugande Moses Vs Uganda (op cit) and Article 23 (8) of the Constitution of the Republic of Uganda.

While sentencing the appellant, the trial Judge stated as follows:

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"I haue corwidered submlssions of both counsel. I notice that the conuict is a first offender. He pleaded guiltg therebg not uasting court's time and scarce resources. ltunderstands he tws afamilg. Howeuer, on the other hand he committed a seious offence attracting a maximum sentence of death. He defiled a goung girl aged 'l2gears. She was a neighbor and he should haue been protectiue of lLer. But uorst still he infected her with AIDS. From the time she ruas tested and found positiue, she has been aware of this inqtrable deadly disease

When court, acting under section 98 of the TIA, called the uictim to sag something, she told court that the uhole uillage kneu that she is sick, her fellow pupils know that she has AIDS. There is no doubt that she is traumatized and she will for the rest of her life liue in state of uncertainty.

The uictim's mother expressed statements that the conuict deliberatelg infected her daughter lt is most likelg that he was au)are of his HN status at the time of committing this offence. No utonder he utould go for such a Aoung girl moreouer a neighbor.

I uould haue sentenced the conuict for hfe but consideing the peiod he lws spent on remand and the fact tlwt he pleaded guiltg, I will be lenient.

I sentence the conuict to a term of eighteen gears' impisonment."

Page 7 of 13 /-r/L-ra Article 23 (8)of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

cWhere a person ls conulcted and sentenced to a tertn ot lmprlsonment for an offence, ang perlod he or she spends tn laulul cr,tstodg ln reqtect of the offence beJore thc completlon of hts or her trlal sha,ll be taken lnto account ln lmposlnq the terrn of lmprlsonment.' [Emphasis added]

The above underlined words are, in our view, the operative words when resolving the issue of illegality raised by the appeal. In the Rwabugande case, the expression "take into accounf" the remand period was interpreted by the Supreme Court to involve arithmetical deduction thus:

"It is our uiew that the taking into account of the period spent on remand bg a court is necessarilg aithmetical. This is because the period is knoun uith certaintg and precision; consideration of the remand peiod should therefore necessaily mean reducing or subtracting that period from the final sentence. That peiod spent in lauful custodg prior to the tial must be spectficallg credited to an acansed."

Subsequently, the Supreme Court clarified the meaning of the expression "take into account" in the case of Abelle Asuntan Vs Uganda, Supreme Coutt Crimtnal Appeal No.66 of 2O76 (delivered on 19th April 2018) thus:

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"What is mateial in [the Rutabugande] decision is that the peiod spent in lawful cttstodg pior to the tial and sentencing of a conuict must be taken into account and according to the case of Rwobugande that remand peiod should be credited to a conuict when he is sentenced to a term of impisonment. This Court used the words to deduct and in an arithmetical uag as a guide for the sentencing Courts but those metaphors are not deriued from the Constitution.

Where a sentencinq Court has clearlu demonstrated that it has takeninto account the peiod spent on remand to the credit of the conuict, the sentence would not be interfered with bu the appellate Court onlu because the sentencinq Judqe or Justices used different words in their iudqment or missed to state that theu deducted the oeiod spent on remand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution." [Empttasis added]

In a more recent decision of Nashimolo Paul Kibolo v Uganda l2O2Ol UGSC 24 (9 Septembet 2O2O) the Supreme Court clarified the discrepancy between the decision in Rwabugande (supra) and Abbelle Asuman (supra) and held that where there is a departure from a previous decision under Article 132 (4) of the Constitution, the court ought to take cogn2ance of its previous decision and also give reasons for the departure from that position.

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In Nashimolo Paul (supra), the Supreme Court found that their Lordships in Rwabugande Moses outlawed their previous position in the cases of Kizito Senkula vs Uganda and Bukenya Joseph vs Uganda and gave a justification for the departure. Their Lordships held further that it is unlikely that the Supreme Court gave ^a justification for the departure and then unceremoniously reinstated it a year later in Abelle Asuman. Their Lordships in Nashimolo Paul (supra) held as follows;

\*In the Abelle Asumqn case, the Court quoted the outlawed position, it was follouted bg an unequiuocal statement that:

"In its judgment this Court made it clear that it was departing from its earlier decision in Kizito Senkula us. Uganda SCCA I[o. 24/20O1; Kabuge Senuano us. Uganda SCCA /Vo. 2 of 2OO2; Katende Ahmed us. Uganda SCCA No. 6 of2OO4 and Bukenga Joseph us Uganda SCCA lYo. 17 of 2O10 which held that "taking into consideration of the time spent on remand does not necessitate a sentencing court to apply a mathematical formula.

This Court and the Courts below before the decision in Rwabugande (supra) were follouting the lana as it uas in the preuious decisions aboue quoted since that uas the law then.

Afier the Court's decisioninthe Rwabugande case this Court and the Courts belou haue to follou the position of the law as stated in Rwabugande (supra). This is in accordance uith the pinciple of precedent." (Emphasis ours)

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Tttis in our uiew, brought claity on tlrc preuailing position of the law as contained in the case of Rutabugande Moses us. Uganda (supra).

Th.e decisioninAbelle Asumanus. Uganda (supra) was made per incuious to the extent that it made reference to an outlanaed position."

From the above excerpt, it is our considered view that this court is bound by the decision in Nashimolo Paul (supra) and finds that from the sentencing order of the learned trial Judge, the period the Appellant spent on remand was not deducted. We accordingly allow the appeal and set aside the sentence of the trial Court.

## Re-sentencing

Section 11 of the Judicature Act vests this court with the same powers as tl"e trial Court in the following terms:

## "77. Coutt of Appeal to haoe powe"s of tlv court of origlnal Jurlsdlctlon.

For the purpose of hearing and detertnining an appeal, the Court of Appeal shall haue all tlrc pou)ers, authoitg and juisdiction uested under any written law in the court from the exercise of the oiginal juisdiction of uhich the appeal originallg emanated."

In the exercise of the above mandate, we adopt both the mitigating and Aggravating factors as set out by the trial judge in his sentencing decision. We are also alive to the principle of uniformity and consistency in sentencing which we are required to comply with. See:

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Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 -Legal Notice No.8 of 2013, and Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015. $\mathrm{We}\,$ note that the sentence of 18 years' imprisonment originally imposed by the trial Court was within the range of sentences imposed by this court and the Supreme Court for the offence of aggravated defilement

This court in **Dratia Savior Vs Uganda Court of Appeal Criminal Appeal No. 154 of 2011**, the Appellant was convicted of the offence of aggravated defilement and sentenced to 20 years' imprisonment. The appellant was HIV Positive. This court taking into account the period spent on remand of 2 years, sentenced the Appellant to 18 years' imprisonment.

## Decision

- 1. The appeal against sentence is allowed. - 2. The sentence imposed by the High Court against the appellant for the offence of aggravated defilement is hereby set aside. - 3. We consider 18 years' imprisonment as the appropriate sentence in the circumstances of this case. Taking into account the period of 1 year and 5 months spent by the appellant in pretrial remand, the appellant shall serve a term of 16 years and 7 months' imprisonment commencing from the 23^rd day of July 2013, the date of conviction.

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We So Order.

Delivered and dated this $\frac{3!}{4}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ EVA LUSWATA Justice of Appeal OSCAR JOHN KIHIKA $$

**ASA MUGENYI Justice of Appeal**