[2025] UGCA 128

# THE REPUBLIC OF UGANDA

IN THE COL,'RT OIT APPI]AI, OF T]GANDA AI'KAMPALA

[Coram; C Gashirabake, A. Mugenyi & J'M' Musisi, JJA]

CRIMINAL APPIIAL NO.0068 of 2019

LUGENDO PE,TER....... APPELLANT

### VF],RSUS

UGANDA.... ...... RESPONDENT

(Arising from rhe Jurlgmenr oJ the l.ligh Court of IJganda at Mukono (Margaret Mutonyi, J) Criminal Case No. 513 of2017 delivered on the 14th lpril 2018)

## . IUDGMENT OF THE COURT

[l]The appellant, aged 33 years, was indicted for the offence of aggravated defilement contrary to section 129 (3) and(4)(a) of the Penal code Act, cap ¹²⁰(now section 116 (3) and (4)(a) cap 128). I'he particulars are that in the month of May 2013, at Gulu 'A' village in Mukono district performed a sexual Act with NC, a girl aged 8 years. LIe was tried and sentenced to 40 years of imprisonment. The appellant appealed against the sentence only'

> "'t'hat the trial Jutlge erretl in law and.fact when she senlenced the Appellant lo 40 years' imprisonment, which 'sentence was manifestly harsh and excessive. "

[2] The Respondent opposed the appeal on the grounds that the sentence was neither excessive nor harsh as alleged by the Appellant

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#### Reprcsentation

[3] At the hearing, the Appellant was represented by Mr. Shamim Nalule on State brief. The Respondent was represented by Mr. Nalwanga Sherifah, Chief State Attorney.

## Submissions of counsel for the Appellant

- [4] Counsel was alive to the principle laid down in Kiwalabye Bernard vs Uganda SCCA No. 143 of 2}}l,which is to the effect that the appellate court shall not interfere with the discretion of the sentencing Judge unless such discretion leads to a sentence being manifestly harsh and excessive or miscarriage ofjustice or where the trial court forgot to consider an important factor that ought to have been considered. - [5]On the principle of consistency, counsel cited Aharikundira Yustina vs Uganda, t20181 UGSC 49, submitting that it was held in that case that consistency is a vital principle in a sentencing regime and it is deeply rooted in the rule of law and rcquires that law be applied with equality and without unjusti fi ed di flerentiation. - [6] Counsel contended that the leamed trial Judge did not properly take into account all the mitigating factors and also departed from the conventional rule of uniformity in sentencing, thereby arriving at a very excessive and harsh sentence. - [7] Counsel submitted that the appellant raised in mitigation the fact that he was ^afirst offender who had reformed and had a family with children who needed care. FIe prayed for leniency. Furthermore, counsel submitted that the trial court oughl to have considered the fact that the appellant was only 33 years old and a sentence of 40 years' imprisonment would waste his whole useful years of living since he will leave prison at 73 years. He cited Kabatera


steven vs Uganda CACA No. 123 of 2001, where the court found that it was relevant to consider the age of an appellant during sentencing' Counsel cited Ndaula Moses vs Uganda, [2020] UGCA,2099, where the court found that the court ought to consider all the mitigating factors before it'

- [g]To buttress his arguments, counsel citcd Munubi charles vs Uganda, [20241 UGCA 300, to the effect that the appellant was a first offender with 2 children, and the court sentenced him to l6 years' imprisonment. In Kwizera Jonana vs Uganda, l2}24l, UGCA 24, the victim was 8 years old, this court substituted a sentence of 21 ycars ibr 18 years of imprisonment. In Anguyo siliva vs Uganda, cA 38 of 2014, the court held that in the absence of aggravating factors, 11 to 15 years is befitting for aggravated defilement. In Byera Denis vs. Uganda, t20181 UGCA 61, a sentence of l8 years and ⁴ months was handed down to the Appellant. In Rwakibale Patrick vs Uganda, cA 384 OF 2014(unreported), this court found a sentence of ²⁰ years' imprisonment not cxccssivc. - [9] Counsel submitted that this court should find that the sentence of 40 years is very excessive and instead sentence the Appellant to l5 years of imprisonment.

## Submissions by counsel for the rcspondent

t1 0] Counsel raised a preliminary point of law on the ground that the appeal was filed out of time. Counsel alleged that the sentence was handed down on the 16th day of April 2018, and the Notice of Appeal was filed on the 9th of May 2018, which was contrary to section 28(1) of the criminal Procedure Code Act and Rule 60( 1) ofJudicature Court ofAppeal rules. Counsel further submitted that since this was an appeal premised on sentence alone, he ought

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to have appealed to the court for leave to appeal against the sentence alone as provided under section 132 of thc lrial On Indictment Ac1

- tl 1] counsel submitted that the sentence of 40 years' imprisonment was rightly passed in both law and fact. Counsel argued that the sentence was not harsh and excessive considering the circumstances of this case. He further argued that aggravated defilement carries a maximum sentence ofdeath, and the starting point for sentencing under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 is 35 years to death. Counsel stated that the sentence of40 years is within range' - l12l Regarding mitigating factors, counsel submitted that the trial Judge considered all the mitigating factors before the court. - t I 3] Regarding having children, counsel submitted that under Guideline 36, any other factor is at the discretion of the court. He argued that ifhe knew he had a family, he would not have molested a child who needed protection from him. counsel cited Segirinya Fulugensio vs Uganda, Court of Appeal No' 549 of 2015, where the court handed down a sentence of 40 years of imprisonment in the absence of any aggravating factors. In Bashir Burahuri vs Uganda (2023) UGCA 265, lhe Court confirmed a sentence of 40 years. In Kasercbanyi James vs Uganda [20141 UGCA 89, the court confirmed ^a life imprisonment sentence' In Karisa Moses vs Uganda, [20191 UGSC 2f , it was held that an appropriate sentence is a discretion of the court. See also Kobusheshe Karaveri vs Uganda, I2014] UGCA 5' - t14] Counsel submitted that it is the duty of this court to protect the children under section 69 of the Child Abuse Act against child abuse' - t15l He prayed that this court upholds the sentence of 40 years' imprisonment.

#### ANALYSIS

## Role of the First APPellant Court

- t16l Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions' SI l3-10, the duty of this court as the first Appellate Court is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte vs Uganda, I19981 UGSC,20' - tlTl Regarding the power of this court in interfering with the discretion of the sentencing judge, the Supreme Court in Kyalimpa Edward vs Uganda Criminal Appeal, No. 10 of 1995, (unreported) referring to R vs De Haviland (1983) 5 Cr. App. R(s) 109 held as follows on page I 14:

"An appropriate senlence is a matter for the discretion of the senlencing Judge. Each case presents ils ownfacts uponwhich ^ajudge exercises his discretion. It is the practice thol as an appellale court, this Court will nol normally interfere with the discretion ofthe sentencingiudge unless lhe sentence is illegal or unless court is salisfied thot the sentence imposed by lhe trial Judge was monifestly so excessive as to amounl lo injusrice; Ogalo s/o Owoura vs R (1954) 21 DICA 270 and ^R vs Mohamedoli Jamal (1918) 15 I,ACA 126"

tl Sl While sentencing, the trial Judge stated as follows;

"|'he convict, Lugendo Peler, was 33 years old ot lhe time he defiled the victim who u,as aged 8 years old. She reported to the stepmother, who never helped her unlil in her own underslonding she thought lhe convict had now become her husband. Victims o.fsexual abuse react dilJbrently' This is a typical case where some victims think it is rutrmal to be sexually abused. The court is certain that had she not joked


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about her relationship with the convict, he would have as.raulted her again.

The o/.fence of aggravated defilement is prevalent The convict was not remorsefut at all. T'he victim had to be reminded of the traumatizing experience she went through. the age difference is big; he was 25 years older thon the victimfit to be herfather. Court is not amused to men who make jokes v)ith sexual contraclion with children. It is d sign of lack of respect for the dignitY of the children.

I have tried to lookfor any mitigating factors in this case bul found none.

The convict slrongly believes that he did not commit the offince, yet the child properly identified him in broad day light. IIe is a hardened criminal who does not deserve any leniencY from lhe court.

Ilowever, since he is a Jirsllime offender, the court will not give him a maximum sentence of death or imprisonment for life. IIe, however, deserves a delerrenl sentence, being a young man of 33 Years.

He is sentenced to 40 years' imprisonmenl period spent on remand inclusive. to serve a deterrent sentence so that other defilers would learn from him

t19l we note from the above that the trial Judge considered all the mitigating factors that were presented before her in court. she considered the fact that the Appellant was a first-time offender and was 33 years of age. In this regard, we cannot fault the trial Judge. As regards children and family, these are not listed among the mitigating factors that the court should consider in mitigation of aggravated defilement. However, it may fall under Principle 36(9) of the Sentencing Guidelines if the Court considers it relevant. In this case, we


cannot fault the court if, in the cxercise of its discretion, it did not deem it fit to consider it.

- l2o)Wealsonotethatasentenceisnotmerelymanifestlyharshorexcessive because ofthe number ofyears. It shall be considered so if it is way out of the sentencingrange. Aggravateddcfilementcarriesamaximumsentenceof death according to section 129 of the Penal code Act and the sentencing Guidelines. Any sentence that does not exceed the death penalty is appropriate, considering the circumstances of each case' - t21l we, however' note that the Judge failed to take into consideration the time spent on remand. While sentencing, she stated that,

"lle is senlenced lo 40 years' imprisonment period spent on remand inclusive. " This case was delermined on the l}th lpril 2018' which was post Rwabugande regime lhot requires that in alignment wilh the provisions oJ'tlrticle 23(8) of the Constilution, lhe sentencing Courl has to arithmetically deduct the time spent on remand ln this case' the trial judge instead included lhe years spent on remond' which was gross and made the sentence illegdl.

122) Article 23(8) of the constitution of the Republic of uganda ¹¹⁹⁹⁵ provides thus;

> "where a person is convicletl arul senlenced to a term oJ imprisonment for an offence, any period he or she spends in lawful custody in respect of lhe of/bnce before the completion of his or her triol shall be taken inlo accounl in imposing the term of imprisonment. "

123) In Rwabugande Moses vs Uganda, I20l7l UGSC 8, the expression ,,take into account" the remand pcriod was interpreted by the Supreme Court to involve arithmetical deduction thus:

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"It's our viev, that lhe taking into account of the period spent on remand by a court is necessarily orithmeticol. This is because the period is known with certoinly and precision; consideration of the remarul perilod -should, therefore, necessarily mean reducing or subtracting that perioQ.from the .ftnal sentence. That period spenl in lawful custody prior to the lrial must be specifically credited lo an accused. "

- l24l we find that the trial courl failed to take into account the time spent on remand. The sentence is, therefore, illcgal' We set aside the sentence of the lower Court. We have considered the sentences in similar offences like Shazilly Abdullah vs. Uganda, [20231 UGCA 221, where this court confirmed a sentence of 32 years' imprisonment and Kabazi Issa vs Uganda CACA No. 286 of 2015, where the court confirmed a sentence of 32 years' imprisonment. - 125) We therefore invoke our powers under section I 1 of the Judicature Act and sentence the appellant to 30 years' imprisonment, having considered all the mitigating and aggravating factors on the Court record. We deduct the ³ years and 10 months spent on remand from the 30-year sentence' The Appellant will, therefore, serve a sentence of 26 years and 2 months effective from the date of conviction, which is lOth April 2018.

#### Decision

- 1. The appeal succeeds in Part. - 2. We set aside the sentence of the lower court. - 3. The appellant will serve 26 years and 2 months, effective 1Oth April 2018.

#### We so Order

$\ldots$ day $\quad \text{ of } \quad$ delivered this Dated, signed and Ma. Y.....2025

**CHRISTOPHER GASHIRABAKE**

## **JUSTICE OF APPEAL**

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DR. ASA MUGENYI **JUSTICE OF APPEAL** $\mathcal{Q}$ **JOHN MIKE MUSISI JUSTICE OF APPEAL**