[2024] UGCA 242

#### THE REEPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL No. 0143 of 2013 (Coram: Eva Luswata, Oscar Kihika and Asa Mugenyi JJA) HABYARIMANA BAVULIKI !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

#### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

(Appeal from sentence of the High Court of Uganda at Mbarara before Hon. Justice VT Zehurikize dated 24^TH October, 2013)

#### JUDGEMENT OF COURT

#### **Introduction**

The appellant was indicted and convicted, upon his own plea of guilty, of aggravated defilement contrary to **Section 129 (3) and (4) (a)** of the Penal Code Act Cap 120, he was sentenced to 20 years' imprisonment.

The appellant being, dissatisfied with the decision of the trial court and filed this appeal against sentence one ground: -

The learned trial judge erred in law and fact in sentencing the appellant to 20 years' imprisonment which was manifestly harsh in the circumstances.

UT WHK

### **Background**

The facts as ascertained from the record are that one Farida Ushindi (the victim) 6 years of age, was a refugee, a resident of Nakivale Refugee settlement at Ngarama Village. The appellant was also a neighbor's to the victim's home.

On the $21^st$ day of November, 2012 the appellant had gone to visit the grandfather to the victim. The appellant called the victim to go with him and he promised to give her a sweet. Since it was at night the appellant made the victim sleep at his home. In the course of the night, the appellant removed her knickers and had sexual intercourse with her. The victim cried out for help but all in vain.

Uwimana Ragins, the mother to the victim, came to the home of the appellant in the morning looking for her daughter. She was shocked to find the appellant sleeping together with the victim on the same bed.

The victim woke up, however she was walking with difficulty due to the pain in her private parts. The victim informed the mother that the appellant had defiled her. The mother took her to Juru Medical Centre for treatment.

The uncle to the victim (Niweshuli Sengaro) reported the matter to the local authorities and later to Kahirimbi police post. The victim was examined on police form 3 and its appendix. Results thereof confirmed that the victim had been defiled. The appellant was arrested examined on Police Form 24. He was found to be mentally normal. The appellant was indicted and convicted of aggravated defilement after pleading guilty and he was sentenced to 20 years' imprisonment.

$46$ $21/2$

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## Representation

At the hearing of the Appeal, the appellant was represented by Ms. Julian Kamusiime on State Brief while the Respondent was represented by Joseph Kyomuhendo Chief State Attorney.

Both counsel proceeded by way of written submissions which were adopted by the parties and considered by the Court.

# Determlnation of the appeal

This is an appeal against sentence only. For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that; the sentence is illegal, the sentence is harsh or manifestly excessive, there has been failure to exercise discretion, there was failure to take into account a material factor and an error in principle was made.

The Supreme Court in Kiwalabye Bernard Vs. Uganda, Supreme Court Criminal Appeal No. 143 of 2OOl held that;

'the appellate court is not to interfere with the sentence imposed by the trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or ao low as to amount to a miscarriage ofjustice or where a trial court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence or where the sentence lmposed ls wrong in principle."

We shall bear in mind the above principles while resolving this appeal.

V /-lr.rK

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\*

# Appellant's submission

The appellant's counsel, faults the learned trial judge for sentencing the appellant to 20 years' imprisonment which was manifestly harsh in the circumstances. It was the appellant's contention that since the appellant pleaded guilty and was repentant, the sentence of 20 years was harsh and excessive. Counsel cited the case of; Tusabe John Bosco v Uganda Court ofAppeal No. 425 of2Ol4

# Respondent's submission

In reply, the respondent argued that the 20 years' imprisonment imposed unto the appellant is neither harsh nor excessive. It was the respondent's submission that the learned trial judge evaluated the evidence surrounding the commission of the offence and arrived at a just and fair conclusion. It was further submitted for the respondent that a plea of guilty is not always a ticket for lenience of sentence.

It was the further submission of the respondent that courts are supposed to embrace the evolving principle of consistency when passing sentences. Counsel cited the case of; Byaruhanga Okot v Uganda CACA No. O7E of 2010.

## Analysis

It is the appellant's claim that the sentence which was passed to the appellant was harsh and excessive. Additionally, since the appellant pleaded guilty, was repentant and did not waste court's time, the trial judge ought to have considered that in passing the sentence to the appellant.

In his sentencing orders the Learned Trial Judge stated as follows;

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. I haue considered submissions by both counsel and the conuict praAer. The conutct is a first offender. He has pleaded guilty and saued court's time and scarce resources. He has praged for mercy and informed court that he has a large familg to look after. Hauing defiled a girl of 6 years the conuict deserued imprisonment for life. But since he has pleaded guilty and indicated that he is repentant I would sentence him to 21 gears' impisonment but giuen the peiod he has spent on remand uhich I deduct, I uill sentence him to a term of 2O gears' impnsonment. Right of appeal explained. "

The record shows that the period spent on remand was ten months and not 1 year which the trial Judge had deducted while passing out sentence. When this was pointed out to Counsel for the Respondent, he conceded that this was illegal.

Article 23(8) of the Constitution directs that the period spent on remand by an accused person shall be taken into consideration while court is passing sentence. In the instant case, the period spent on remand was 10 months. The trial Judge sentenced the appellant to 2l years and deducted I year. We are of the view that this was illegal in that the trial Judge did not deduct the time that was spent on remand. He in fact deducted more time than was actually spent on remand. This was contrary to the provisions of Article 23(8) of the Constitution. We therefore set aside the sentence passed by the High Court.

M IvAL Page 5 of ⁷ v

# Re-sentencing

Having set aside the sentence passed by the High Court we proceed to resentence the appellant, pursuant to Section 11 of the Judicature Act which confers this court with the same powers as the High Court in sentencing.

Having re-considered both the aggravating and mitigating circumstances of the case as presented before the trial court. He pleaded guilty and did not waste court's time. We are satisfied that a sentence of 20 years' imprisonment is appropriate in the circumstances of this case.

We therefore sentence the appellant to a term of 20 years' imprisonment. From the 2O years, we deduct 1O months being the period that the appellant spent on remand. The appellant is sentenced to 19 years'and two months' imprisonment, from the date of conviction which was 24th day ofOctober,20l3.

For the foregoing reasons, the appeal against sentence is a-llowed

We so order.

Dated at and 1iv this d^y"f .. Yhl\*...zozq 74

HON. LADY TICE EVA LUSWATA, JA

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ULJL

l-HON. WSTICE JOHN JA v 'HI

HON. JUSTI MUGENYI, JA

UJL

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$\mathcal{G}_{\mathcal{C}}$ .