[2024] UGCA 189

### ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Richard Buteera, DCJ, Eva K. Luswata, JA, Oscar J. Kihika, / JA)

# CRIMINAL APPEAL NO. 0318 OF 2O1O

#### BETWEEN

# KYAMUFUMBA ERIAB ::::::::::::::::::::::::::::::::::::::::::::! APPELLANT

#### AND

RESPONDENT UGANDA :: ::::::!:::::::::::

¹⁵ [Appeal from the Judgement of High Court sitting at Kampala in Crlminal Session Case No. 48O of 2O1O by Hon Lady Justice Catherine Bamugemereire delivered on 25th November, 2O1O]

### JUDGMENT OF THE COTJRT

# Introduction

²⁰ 1] The Appellant was charged with the offence of aggravated defilement contrary to Section 129(3) & (4) of the Penal Code Act Cap.120. The Appellant was indicted, tried, convicted and sentenced on his own plea of guilty to 6O years of imprisonment without remission. It was stated in the indictment that Kyamufumba Eliab on the 16th day of December 2008 at Luwenda Gombe, Sub-county, Kasangati County in the Wakiso 25

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District, performed a sexual act on a girl aged two months who we shall for the purpose of protecting her identity refer to as NR.

- 2] The brief facts, which the Appellant confirmed as true at the trial, are that on 16tr, February 2008, Mary, MR's mother left her sleeping in the sitting room of their house. When she later heard NR crying, she rushed back into the house to investigate the reason for NR's distrcss and confirmed that NR was in fact crylng in the bedroom rathcr than in the sitting room where she had left her. Upon reaching her bedroom, Mary found the accused sitting on her bed while holding NR on his lap. She noticed that the Appellant had inscrted his penis into NR's vagina and upon seeing the mother, the Appellant attempted to drop NR but Mary held on to him. Mary tried to chase the accused but he outran her, and no one rcsponded to her alarm and call for help. Subsequently, Mary reported the matter to Chairman LCl, a result of which the Appellant was arrested by police. When in police custody, thc Appellant recorded a charge and caution sentence in which hc admitted committing the offence. - 3l At the trial, the Appellant offered a plea of guilty' He was convicted and sentcnced as stated. He was aggrieved with the sentence and lodgcd an appeal premised on one ground that:

The learned trial Judge erred ln laut and fact uthen she imposed on the appellant a sentence of 60 gears' itnprisonment uthich is Tllegal, undulg harsh and excesslue ln the clrcumstance s.

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# s Representation

4] At the hearing of thc appeal, the Appellant was represented by Mr. Moharnmed Mbalile on state brief while the Respondent was represented by Ms. Immaculate Angutoko a Chief State Attorney holding the brief for Mr. Oola Sam. Both counsel filed written arguments before thc hearing of the appea-i. We relied on those arguments and authorities supplied and those obtained by the Court to decide this zrppeal.

#### Aooellants submissions

15 20 5] Counsel for the appcllant Mr. Mohammed Mbalile started his submissions by rcfcrring to the principles upon which an appellate court may interfere with a sentence passed by the trial court. He in particular emphasized the principle that sentence remains a matter of discretion of the trial Judge and that the appellate court's intcrference is iimited to cases where the sentence is illegal or manifestly excessive. He referred to the case of Kyalimpa Edward versus Uganda, Criminal Appeal No. 10 of 1995 (which citcrl R versus Haviland (1983) 5 Cr. App R(S) 109), in that regard.

6l Counsel contendcd that the sentence of 60 years' imprisonment was in the circumstances of this case, illegal, manifestly harsh and excessive in thc circumstances of the case. In particular, that the Judge could not deprive his client of the right to remission which is ir statutory "7ifi" :under the Prisons Act. For guidance counsel rcferred to the Supreme Court decisions of

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# Tigo Stephen versus Uganda, Criminal Appeal No. 8 of 2009 and Wamutabanewe Jamiru versus Uganda Criminal Appeal No. 74 of 2007.

- 7] Counsel further submitted that before a convict can be sentenced, the trial court is obliged to exercise its discretion 10 meticulously by refereeing to all the mitigating factors and other pre-sentencing requirements as elucidated in the constitution, statutes, practice directions together with general principles of sentencing as guided by case law as per the case of Aharikundira Yusitina versus Uganda Supreme Court 15 Criminal Appeal No. 27 of 2015. In his view, the trial Judge gave no attention to the mitigating factors, and that after considering the aggravating factors, he erred by pronouncing a sentence without remission. - 8] To buttress his submissions, counsel highlighted what was stated in the allocution proceedings that the Appellant, then was aged 38 years. He was a first offender, who had been on remand for two. In addition, that he and an aged and needy mother under his charge. It was stated in addition that the Appellant was very remorseful of his crime pleaded guilty and did pray for court's leniency. Counsel contended that the sentence of 60 years imposed upon the Appellant, one of youthful age would not offer an opportunity to reform. He opined that such a harsh sentence would instead ruin his future, and remove chances of him benefiting his family and the society at large.

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- ⁵ 9| Upon such submissions, counsel then moved the Court to exercise her discretion under Section 11 of the Judicature Act to re-sentence the Appellant after considering the mitigating factors. - 10 15 10] Mr. Mbatile in additior.r considered the sentence as being harsh and excessive. He ir-rvited the Court to consider applying the principle of consistence which provides that those convicted of similar offences and in in similar circumstances, should receive similar sentences as rnuch as possible as provided in paragraph 6(c) of the Sentencing ()uidelines. Counsel then drew our attention to several decisions ol the supreme court and this court to argue that in comparison, thc sentence against the Appellant is excessive. He in particular referred us to the case of Tiboruhanga Emmanuel versus Uganda, Court of Appeal Criminal Appeal No. 655 of 2OL4, where this Court stated that the sentences approved by this Court in previous aggravated defilement cases without additional aggravating factors range between 1 1 years and 15 years. The Court thcn imposed a sentence of 22 years' imprisonment after it was found that the appellant was HIV positive. Counsel cited a few other cases where this court handed down sentences betwecn cight and twenty years' imprisonment for men who were convictcd of defiling their female relatives who were minors. He cited for cxample Byera Denis versus Uganda, Court of Appeal Criminal Appeal No. 99 of 2OL2, where the Court substituted a scntencc of 30 years' imprisonment with one of 20 years, and Katende Ahamed versus Uganda, Supreme Court 20 30

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- Criminal Appeal No. O6 of 2OO4 where the Supreme Court upheld a sentcnce of 10 years for an appellalt who defiled nineyear-old daughtcr. 5 - 111 In conclusion, counscl pr:,ryed this court pronounces a sentence of 60 years as illegal and re-sentence the appellant. He suggested a term of 15 years irom which the period spent on remand should be deducted.

### Respondents submis sl()ns

- 12] In response, counsel for thc Respondent Ms Immaculate Angutoko conceded that thcre is mcrit in part of the appeal to the extent that the trial Judge scntcnccd the appellant to 6O years' imprisonment without remission which is itlegat. She also agreed with Appellant's counsel with regard to thc circumstances in which an appellate court carr interfcrc with a sentence passed by the trial court. She in that regard, citcd the Supreme Court decision of [Iamutabanewe Jamiru versus Uganda, Criminal Appeal No. 74 of 2OO7 where the Court found such a sentence illegal because deprivation of p<'n:rl rcmission is not one of the penalties available to court. For thert rcason, Ms. Angutoko was in agreement that the sentence in this casc was illegal and that the sentence should be set aside. She arlcled that after invoking her discretion, the Court should determinr: ein appropriate sentence in the circumstances. 15 20 25 - 13] She in that r<'gard submitted that the Appellant who took advantage of Mar'1,'5 abscnce, sexually ravaged a two a helpless and l'ulnerable two :nonths' old chitd, a very serious offence which attracts a maxinrum scntcnce of death. That by his own admission,

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- 5 10 the Appellant wlro wets at the material time aged 38 years, was at the time, fit to lrc NL's lather who could have found a mature woman to satish' his scxual desires. Counsel contended that the trial Judge wirs at pain in comprehending the appellant's reprehensible ar r d dcplor:rble conduct. In her view, she rightly expressed her rrrvulsion and condemnation for the appellant's abhorrent behaviour and that she was clearly alive to the danger the appellant posi:d tt> innocent children if he were let loose or given a light sentencr:. thcrcforc that it was a correct decision that the appellant is kepr rrw:ry from civilised society for some time. - l4] Ms. Angutoko sirrrrlitr')-1' rit-t'w our attention to decisions of this court and the Supr<'rri' (lourt to argue that the sentence that was imposed was ;ri'irropriritc in the circumstances. She cited for example, Abingorna Defonzi versus Uganda, CA Criminal Appeal No. O284 of 2l)16 :rrrrl Bachwa Benon versus Uganda, CA Criminal Appeal No. 869 of 2OL4 where sentences of 40 years to life in prison wcr ,' rlivcn ior the same offence against minor fema'les. She in additiorr , itr'<l I{aserebanyi James versus Uganda SC Criminal Appe:rl No. 10 of 2OL4, Mugerwa Paul versus Uganda CA Criminal Alpcal No. 461 of 2O15 and Ouma Ben alias Ofwono versus I'randa sC Criminal Appeal No. 20 of 2016. 15 20 25 - 15] Ms. Angutoko ir .r:;tcrl lirrrl the present facts were unprecedented as the victim w:r ,,n1.,' [',r'o months as opposed to the victims in the cited cases who lr 'l ir r'.urlo of three and a half years and 15 years. In her view, thc npellet:rt s case singled out in in terms of gravity

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- 5 and magnitude and should therefore attract a more serious and befitting sentence. - 16] In conclusion, Ms. Angutoko invited the court to consider sentence of 42 years' imprisonment as appropriate in the circumstances and from which the remand period of one year and eleven months should be deducted.

## Analysis and decisions of Court

171 The issue for this Court's determination is whether the trial Judge dispensed an illegal, harsh and excessive sentence of 6O years' imprisonment without remission, which resulted into ^a miscarriage of justice. Both counsel did articulate quite well the well-established principles guiding appellate courts when executing their mandate when hearing appeals against sentence. There is indeed a wealth of decisions on the point but the decision of this Court in Kiwalabye Bernard versus Uganda, CA Criminal Appeal No. 143 of 2OOl, comes to mind. It was held inter alia that;

> "an appellate Court is nol to interfere uith the sentence imposed bg a trial court which has exerased its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessiue or so low as to amount to a miscarriage of justice or where a tial court ignores an important matter or circumstances uhich ought to be considered while passing the sentence or tahere the sentence is imposed on a urong principle."

A wrong principle would include a sentence existing law. made contrary to

W^L 18] It is the Appellant's case that the learned trial Judge sentenced him $\mathsf{S}$ an illegal, harsh and excessive sentence of 60 years' to imprisonment without remission, one that was decided without considering the mitigating factors presented. There was no contest to the argument that the Judge could not make an order with regard to remission but Ms. Angutoko contested the submission 10 that the sentence was harsh and excessive. Both counsel cited extensive authority to support their arguments made to persuade the Court to set aside or retain a severe sentence.

19] There is no doubt in our minds that the provisions of Articles23(8) of the Constitution are mandatory. It provides as follows;

> "Where a person is convicted and sentenced to term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the *term of imprisonment." (Emphasis supplied)*

20] In the case before us, while sentencing the Appellant, the trial Judge made observations before imposing the sentence. His order reproduced on page 9 -10 of the record of appeal, is as follows:

"In the most bizarre circumstances, you managed to commit an even more heinous offence. Defiling a 2 months old baby is a devilish act of lunacy. Thankful you have pleaded sanity and that you are remorseful for what you did. The only favour I can give you is that you spend your whole entire and remaining life in prison without remission. Convict is sentenced to sixty years of imprisonment without remission. *May you never come back to terrorise any other child or person* in any corner of this country. May you grow old and die far and away from all the innocents of this world."


- s 2tl 10 In Rwabugande versus Uganda, SC Criminal Appeal No. 25 of 2OL4, the Supreme Court held that compliance with the provisions of Article 23(8) of the Constitution require every sentencing Court to arithmetically subtract the period spent on remand from the sentence that is imposed upon a convict. That provision was reproduced in the Sentencing Guidelines which provide. We also observe that this is required by Paragraph 15 of the Constitution (Sentencing Guidelines for Courts of Judicaturel (Practice) Directions, 2013, wherein it is stated as follows: - 15. Remand period to be taken into account - 1) The court shall take into account ang Peiod spent on remand in determining an appropiate sentence. - 2l The court shall deductthe period spent on remandfromthe sentence considered appropiate afier all factors haue been taken into account

22) The Rwabugande decision was handed down in March 2Ol7 and the Supreme Court in Karisa Moses versus Uganda, Criminal Appeal No. 23 of 2OL6, clarified that Rwabugande has no retrospective effect. That decision was reinforced by the same court in Abelle Asuman versus Uganda, SC Criminal Appeal No. 66 of 2016 where it was held that;

> "This Court and the Courts belou.t before the decision in Ruabugande (Supra) uere follotling the law as it tuas in the preuious decisions since that was the latu then. Afier the Court's decision in the Rwabugande case, this Court and the Courts below haue to follow the position of the lau as stated in Rutabugande (Supra)"

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- The sentence in this case was handed down on 25^th November 5 2010, several years before the Supreme Court made the decision in **Rwabugande (Supra)** That precedent clearly does not apply to this case. - Nonetheless, we still have to decide whether the trial Judge 10 23] complied with the mandatory provisions of Article 23(8) of the Constitution, or at least, made a ruling that would fit into the situation pertaining before the **Rwabugande** decision. The Supreme Court has given guidance in that regard. In the **Abelle Asuman (Supra)** decision it was held that: 15

"*What is material in that decision is that the period spent in*" *lawful custody prior to the trial and sentencing of a convict* must be taken into account... where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate court... This *Court and the Courts below before the decision in Rwabugande (Supra) were following the law as it was in the previous decisions above quoted since that was the law then.*"

- 24] It is clear from that narrative that the trial Judge did not in any way demonstrate that she took into account the period spent on remand which rendered the sentence illegal. - 25] The Appellant advanced a further argument that the trial Judge meted out a sentence without remission, which was not contested. 30 Thus in resolving that issue, we shall refer to the case of Wamutabanewe Jamiru versus Uganda, SC Criminal Appeal No.

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## 74 of 2007, where the Court cited Tigo Stephen versus Uganda, $\mathsf{S}$ **SC Criminal Apepal No. 08 of 2009** and stated that;

"Sections 84 & 85 of the Prisons Act relate to remission. Suffice it to say that remission is a function of the Penal institution to which a sentenced convict has been committed and it is exercised in tandem with the sentences meted out by court... Respectfully this is a fallacy because deprivation of *penal remission is none of the penalties available to court to* hand down. While court found no reason to fault the 35-year imprisonment as a sentence per se, it agreed with the Appellant that the Court erred when it included the sanction that the appellant was entitled to no remission. He is not to be *denied remission where it is applicable."*

- 26 In this case, the trial Judge had no powers to pronounce herself on remission. She could not make an order to deny the Appellant remission. It is earned in accordance with the Prisons Act which governs the institution in which he is detained. We therefore agree with Mr. Mbalile that the sentence that was meted out by the trial Judge was illegal for failure to consider the period that the appellant spent in lawful custody which is a requirement under Article 23(8) of the constitution and for meting out a prison 25 sentence without remission. We therefore hereby set it aside. We invoke the provisions of **Section 11 of the Judicature Act**, which grants this Court the same powers as the trial Court to impose a sentence on the appellant. - $27$ In our endeavour to pronounce an appropriate sentence, we are 30 mandated to consider both mitigating and aggravating factors presented for the Appellant at the trial. We must in addition, apply the principle of consistency. That principle which has been well

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- followed by Courts is important, in that an appellate Court will be $\mathsf{S}$ guided by sentences given in previous trials and appeals with similar facts. It is in itself a measure of whether in given circumstances, a particular sentence is manifestly harsh and excessive. We are fortified in our findings by the provisions of Paragraph $6(c)$ of the Constitution (Sentencing Guidelines for 10 Courts of Judicature) (Practice) Direction 2013, which provide that "a court should be guided by the principle of consistency while passing a sentence to a convict." Also by the case of **Aharikundira Yustina versus Uganda (Supra)** where it was stated that: - "... it is the court while dealing with appeals regarding 15 sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be without unjustifiable applied with equality and differentiation." 20 - 28] In the case now before us, the appellant was convicted for aggravated defilement of a girl aged 2 moths. He was himself 37 years old at the time when he forced himself on the girl. In comparison, in Saruyange Yuda Tadeo versus Uganda, CACA No. 080 of 2020, this court found a sentence of 29 years' imprisonment 25 appropriate in the circumstances in a case where the Appellant defiled a nine-year-old girl. On the other hand, in **Abingoma** Defonzi versus Uganda, CACA No. 0284 of 2016 this court confirmed a sentence of 40 year's imprisonment in a case where the Appellant had sexual intercourse with his step daughter who was 30 aged 10 years at the time. In **Kaserebanyi James versus Uganda**, SC Criminal Appeal No. 10 of 2014, the Supreme Court confirmed

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- ⁵ a life imprisonment sentence for the Appellant who repeatedly had forceful sexual intercourse with a lS-year-old child. Lastly in Mugerwa Paul versus Uganda, CA Criminal Appeal No. 461 of 2015 this Court confirmed a sentence of 26 years and 6 months' imprisonment of aggravated defilement where the victim was ⁸ years old. 10 - 29] The decisions of this Court and the Supreme Court above show that the court preferred a range of sentences for aggravated defilement with vulnerable and very young victims frorn 26 to 4O years' imprisonment with the exception of one case in which a steep sentence of life imprisonment was passed' - 30] During allocution proceedings held on 9tt' November 2010, both counsel were permitted to make a submission before sentence- It was stated for the prosecution that the Appellant is a first time offender, has pleaded guilty and saved court's time. That he had committed a very serious offense that attracts a death penalty and given the age of the victim, counsel prayed for a deterrent sentence. In mitigation, Mr. Masereka agreed that the Appellant who was a first time offender had spent 2 years on remand. Counsel added that the Appeltant then aged 38 years of age, has an aged and needy mother who was under his charge. He further submitted that was very remorseful and prayed for courts leniency while sentencing the Appellant. - 31] We take into account the mitigating factors in particular the fact that the Appellant who pleaded guilty and voiced his remorse, had an aged mother who before the arrest, was under his charge.

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- However, we do not consider him so youthful as to be one given $\mathsf{S}$ pardon on account of his age. That fact is in fact aggravated by the considerable age difference of 36 years and 4 months between him and the victim. We agree that the offence of defilement is rampant in Uganda and the State must step up effort to reduce and even eliminate such violations. Stringent custodial sentences would 10 speak to such efforts. - 32] We find that there is justifiable cause to depart from past decisions because this was an act of sexual violence against victim child of the very tender age of two years. In our view, any person who exposes the innocence of such a young child to the depravities of sexual assault deserves to be met with a punishment that depicts society's disapproval of such conduct. Taking into consideration all the aggravating and mitigating factors, and considering previous decisions with similar circumstances, we consider a sentence of 40 years' imprisonment as appropriate. - 33] We are enjoined under Article 23(8) of the Constitution to take into account the period the Appellant had spent on remand. The Record indicates that he was arrested on 17^th February, 2008 and convicted and sentenced on 25^th November 2010, which would be a period of two years. We deduct it from the sentence of 40 years' imprisonment. The Appellant is accordingly sentenced to 38 years' imprisonment which he will serve with effect from 25^th November 2010, the date of his conviction. - 34] Consequently, the appeal is allowed.

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fi)--- s Dated at Kampala this day of....... HON. RICHARD BUTEERA DEPUTY JUSTICE 2024 10 15 20 HON. APPEAL KIHIKA V HON. JUSTICE OF