[2023] UGCA 377

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0621 OF 2015

ICORAM: Buteera DCJ; Gashirabake and Kihika, JJAI

5 OUMA JOSEPH: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT VERSUS

UGANDA :::::::::::::::::: RESPONDENT lAn appeal aising from the decision of Margaret Oguli Oumo, J, in High Court Criminal Session No. 135 of 2013 dated 2"d MaA 2O14 holden at Kalangalal

#### JUDGMENT OF THE COURT

15 The appellant was indicted for the offence of Aggravated Defilement contrary to section L29 l3l and (4) (a) of the Penal Code Act. It was alleged that during the month of December 2Ol1. at Bujjumba village in the Kalangala District, the appellant had unlawful sexual intercourse with NS, NG, NC, NA, NB and KJ, all girls below the age of l4 years.

#### 20 Background

The background to this appeal as ascertained from the lower court record is that the appellant who was a herdsman to the victims'grandmother found the girls playing and asked them to

25 take him salt. The victims took the salt and when they reached a bush, the appellant told them to remove their knickers and he forcefully had sexual intercourse with each one of them. The appellant told the victims not to tell their parents but they

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however informed a one Namusisi who told their parents what had transpired and the appellant was reported to Kalangala Police Post. NS, NG, NC, NA, NB and KJ were all medically examined and found to have raptured hymens and bruises resulting from sexual assault. The appellant was charged with 6 counts of Aggravated Defilement and on 7th April 2O14, he pleaded not guilty to all counts. He later changed his plea on the 2"d May 2014 to a plea of guilty on all 6 counts of Aggravated Defilement. He was convicted on his own plea of guilty and sentenced to 5 years' imprisonment on each count to run consecutively.

Dissatislied, the appellant appealed against both conviction and sentence.

#### Grounds of Appeal 15

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- 1. That the learned trial Judge erred in law and fact when she failed to follow the requisite procedure of plea taking and convicted the appellant which occasioned a miscarriage of justice. - 2. That the learned trial Judge erred in law and fact when he passed a manifestly harsh and excessive sentence of 3O years against the appellant. a ZO

# Representation

At the hearing of the appeal, Mr. Richard Kumbuga represented the appellant on state brief while Ms. Peace Bashabe, Chief 25

State Attorney, represented the respondent. The appellant appeared via video link.

Both counsel filed written submissions, which have been adopted by this court on application of both counsel.

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# The appellant's submissions

### Ground one

Counsel for the appellant faulted the trial Judge for failing to follow the required procedure of plea taking.

- Counsel referenced section 63 of the Trial on Indictment Act, which requires court to record the plea of guilty upon the accused person pleading so. Counsel further cited Adan v Republic; lL973l EA 445, which lays down the procedure of plea taking. 10 - It was counsel's contention that according to the record, the accused was not asked the language he understood before pleading guilty and that the record does not indicate that the trial Judge recorded what the appellant had said in his own words. Counsel further argued that although the brief facts were read back to the appellant it is not shown on record whether the interpreter read them back to the appellant in ^a language he apprehended. 15 20

Reference was made to Ndidde Khalid & Kawere Abdul v Uganda; CACA No. O237 of 2OL7 and 518 of 2OL6 where court noted that;

"The leqrtred triql Judge did. notfollout the procedure laid doun in Adan v R during the taking of the plea of appellant No.7. It was not indicqted wlether the charges uere reqd and explainedto the appellant No.7. The agreedJacts uere

5 not recorded....trial courts ought to record as much as transpired in court. We Jind that the procedure adopted bg the trial court was irregular and thus occqsioned a tmiscarriag e o;f justice."

It was counsel's submission that the record is silent on recorded 10 agreed facts and the fact that the plea of guilty was not interpreted in the language the appellant was vast with. It is not clear that the appellant understood what he was pleading guilty to. Counsel urged us to quash the conviction and set the appellant free.

# 15 Ground two

The appellant contended that the learned trial Judge imposed an excessive sentence. That the trial Judge did not take into account the mitigating factors and the period spent on remand. Counsel argued that the trial Judge hinted on the period the 20 appellant had spent on remand but never credited it to him in the sentencing. Further that it was uncertain whether the age of the appellant was considered and whether the remand period was deducted when sentencing. Counsel cited Pte Kusemerenra & anor v Uganda; CACA No. 83 of2O1O where 25 court noted that the period spent on remand ought to be

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credited to the appellants in addition to the present mitigating factors.

Counsel submitted that this court should be pleased to consider the sentence passed against the appellant as harsh and excessive and substitute it with a fairer and more lenient one taking into account the period the appellant has spent on remand.

# The respondent's submissions

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o r'0 15 20 In reply counsel for the respondent submitted that plea was taken on 7th April 2014 and the appellant was represented by Mr. Yawe Lawrence, on State brief, and court had an interpreter/ court clerk who was present. Counsel contended that the record shows that the indictment was read and interpreted to the appellant and he pleaded guilty to all counts. It was counsel's submission that neither the appellant nor his lawyer raised any objection that the appellant did not understand the charges he was pleading to. Further, that on 2nd May 2014, the appellant changed plea to that of guilty and the indictment was read and interpreted and his lawyer was in court when the clerk interpreted the indictment again. Counsel submitted that the record shows that the brief facts were put to the appellant by the State Attorney and the appellant confirmed them as true.

25 Counsel referenced Sebuliba Siraji v Uganda; CACA No. 0319 of 2OO9 where this court in dismissing the appeal found the omission by the trial court to record the language of interpretation was not fatal because the record clearly indicated that the indictment and facts were not only put but fully explained to the appellant.

Counsel submitted that there was no miscarriage of justice in the instant case since the appellant was represented by counsel at all times. Counsel urged us to find that this ground is devoid of merit and should fail.

In reply to the second ground on excessiveness of sentence, counsel for the respondent submitted that the appellant was convicted of multiple offences whose maximum punishment is death. Counsel added that the Constitution (Sentencing guidelines for Courts of Judicaturef (Practice) Directions, Legal Notice No. 8 of 2013, the 3'd Schedule the starting point for cases of Aggravated Defilement is 35 years and in this case the appellant was given a sentence of 5 years on each count which was too lenient compared to what the law provides. 410 15

Counsel contended that a sentence of 5 years on each count amounting to 30 years where the victims were below 10 years is

not harsh and excessive as submitted by counsel for the appellant. 20

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Regarding the period spent on remand, counsel for the respondent submitted that the trial Judge considered both the aggravating and mitigating factors including the 2 and half years that the appellant spent on remand as clearly indicated in the record. Counsel implored us to note that the decision was

passed in 2Ol4 when the legal regime then did not require arithmetic deduction of the time spent on remand. He prayed that the appeal be dismissed and the conviction and sentence of the trial court be upheld.

# The decision of Court

This being a first appeal from the decision of the High Court in the exercise of its original jurisdiction, this court is required to reappraise the evidence and draw its own inferences of fact (See

- rule 3O(1) (a) of the Judicature (Court of Appeal Rules) Directions, S. I. 13-10 and Pandya v R; [1957] EA 336). The duty of this court as a first appellate court was spelt out in Kifamunte Henry v Uganda; SCCA No. 10 of 1997 as follows; "The first appellate court has a duty to review the evidence a ¹⁰ - of the case and to reconsider the materials before the trial Judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it." 15 - o ²⁰ We shall bear the above principals in mind while resolving this appeal.

### Ground No. ¹

That the learned trial Judge erred in law and fact when she

2s failed to follow the requisite procedure of plea taking and convicted the appellant which occasioned a miscarriage of justice.

Section 63 of the Trial on Indictments Act, Cap 23 provides:-

"Ifthe accused pleads guilty, the plea shall be recorded and he or she may be convicted on it."

This provision was considered and interpreted by the Eastern African Court of Justice by Spry V. P. in Adan v Republic (supra) in the following terms;

410 15 20 "When a person is charged with an offence, the charge and the particulars thereof should be read out to him, so far as possible in his own language, but if that is not possible in the language which he can speak and understand. Thereafter the Court should explain to him the essential ingredients ofthe charge and he should be asked if he admits them. If he does admit his answer should be recorded as nearly as possible in his own words and then plea of guilty formally entered. The prosecutor should then be asked to state the facts of the case and the accused be given an opportunity to dispute or explain the facts or to add any relevant facts he may wish the court to know. If the accused does not agree with the facts as stated by the prosecutor or introduces new facts, which if true might raise a question as to his guilt, a change of plea to one of not guilty should be recorded and the trial should proceed. If the accused does not dispute the alleged facts in any material respect, a conviction should be recorded and further facts relating to the question ofsentence should be given before sentence is passed."

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B The court in Adan (supra) observed that the statement of facts enables the magistrate to satisfy him/herself that the plea of guilty was really unequivocal and that the accused had no defence. The accused has to understand the facts and these are best understood if they are in his or her own language.

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We found the decision of Sebuliba Siraji v Uganda; CACA No. 319 of 2OO9 relevant to this particular case. In that case, this court noted as follows:-

"We consider it desirable that a trial Court should indicate the language in which the indictment has been read and explained, and the proceedings interpreted to the accused. It assists the appellate Court in discerning whether the appellant fully understood the nature and consequences of o ¹⁰ 15 the proceedings against him. However. in the the learned Judge did not record the language of circumstances of this case, we do not consider the fact that

interpretation to be fatal to the conviction.

The record clearly indicates that the indictment and facts z0 were not onlv put, but fullv explained to the appellant. His answers to all the stases of the proceedings indicate that he undgrstoqd what was said to him, its consequences, and what the proceedings were all about. Moreover there is no protest on record from his Counsel to indicate that 25 the appellant did not understand or misunderstood

anvthing. In the premises, we conclude that the conviction

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was valid under section 63 of the Trial on Indictments Act and uphold it for being unequivocal."

5 a10 15 In the present case, the record of proceedings of the trial Court clearly indicate that during the plea-taking process, the Appellant was duly represented by Mr. Yawe Lawrence on State brief and it is also manifest that a Court clerk was in attendance in Court. We have observed that the proceedings indicate that:- "indictment read and interpreted to the accused." The appellant was then asked how he pleaded and he replied it is trrle, on all counts. The brief facts were then laid out by the State and court inquired of the appellant whether that was what had happened, to which he affirmed. The ingredients were also explained and the appellant stated that it was true. The appellant was then convicted on his own plea of guilty.

20 25 From the above observation, the indictment was read and explained to the appellant otherwise he would not have replied that it was true. Secondly, the record indicates that the brief facts were clearly read out to the appellant and he affirmed the sarne. Counsel's allegation that the record does not indicate whether the interpreter explained the facts is rather implausible at this point on appeal. The appellant was fully represented by counsel who did not protest the procedure at that point thus the appellant pleaded guilty from an informed perspective. Therefore, the omission to indicate the language of interpretation does not occasion a miscarriage ofjustice as held

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in the earlier cases discussed above. On that note, we find that the conviction was valid. Ground No. 1 of the appeal lacks merit and therefore fails.

5 Ground 2: That the learned trial Judge erred in law and fact when he passed a manifestly harsh and excessive sentence of 3O years against the appellant.

As an appellate Court, we have to determine whether the sentence imposed by the trial Judge was manifestly harsh and excessive. However, we are constrained not to interfere with sentence imposed by the trial Court, merely because we would have imposed a different sentence had we been the trial Court. We can only interfere with sentence where it is either illegal, or founded upon a wrong principle of the law, or a result of the trial Court's failure to consider a material factor, or harsh and manifestly excessive in the circumstances of the case - (see Kizito Senkula v Uganda; SCCA No.24 of 2OO1 and Bashir Ssali v Uganda; SCCA No.4O of 2OO3). o ¹⁰ 15

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In Kiwalabye Bernard v Uganda; SCCA No. 143 of 2OO1 it was held that;

"An appellate court is not to interfere with the sentence imposed by a 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 so low so as to amount to a miscarriage of justice..."

Further, in Kyalimpa Edward v Uganda; SCCA No. 1O of 1995 cited with approval in Karisa Moses v Uganda; SCCA No. 23 of 2015, the Supreme Court held as follows;

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'An appropriate sentence is a matter of discretion of the sentencing judge. Each case presents its own facts upon which the appellate court will not normally interfere with discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence

imposed by the trial judge was manifestly excessive.'

We note that in the exercise of its discretion during the 15 sentencing of a convict, while being cognizant of the fact that no two cases are the saJne, Court must always have in mind the need to maintain consistency or uniformity of sentence. In Mbunya Godfrey v Uganda; SCCA No. 4 of 2O11, the Supreme Court noted that: -

20 "We are alive to the fact that no two crimes are identical. Ilowever, we should try as much as possible to have consistency in sentencing."

25 We shall therefore be guided by the same principles while analyzing the sentence meted out in the instant case.

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In Seruyange Yuda Tadeo v Uganda; CACA No. O8O of2O1O this court found a sentence of 29 years' imprisonment appropriate in a case where the appellant defiled a 9-year-old girl.

5 In Kaserabanyi James v Uganda; SCCA No. 10 of 2014 the appellant was convicted on his own plea of guilty to the offence of Aggravated Defilement and sentenced to Life Imprisonment, which was confirmed by the Supreme Court.

In Othieno John v Uganda; CACA No. L74 of 2O1O (unreportedf this court confirmed a sentence of 29 years' imprisonment for Aggravated Defilement where the victim was 14 years old. o ¹⁰

In the present case, the appellant was sentenced to 5 years' imprisonment on each count to run consecutively, which totaled to 30 years. The offence of Aggravated Defilement carries a maximum sentence of death. In this case, the appellant had defiled 6 girls all below 14 years. 15

Section 2 l2l of the Trial on Indictments Act provides that; "When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her for those offences to the several punishments prescribed for them which the court is competent to impose, those punishments, when consisting of imprisonment, to commence the one alter the expiration of the other, in such 20 25

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order as the court may direct, unless the court directs that the punishments shall run concurrently."

In Magala Ramathan v Uganda; 120l7l UGSC 34, the Supreme Court noted that;

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"fn answering the question whether the order that the sentences run consecutively was an error in law, we must again emphasize that sentencing is a matter in which ^a judge exercises discretion and furthermore that judicial

a10 discretion should be exercised judicially. More specifically, Judicial Oflicers have the discretion to decide the manner in which the sentences given will be served - whether concurrentlv or consecutivelv." (Underlined for emphasis)

1s Further, in Geoffrey Kazinda v Uganda; CACA No. 179 of 2O2O & 2OB of 2O2O this court stated that; "Each count is a separate offence that carries a separate punishment. It is upon the discretion of the sentencing judge to determine whether the sentences imposed against 20 the convict in the various counts are to run consecutively or concurrently. The general rule is that the High court will impose a consecutive sentence in case of distinct offences."

25 We have considered the authorities above and their sentencing ranges and we find that the sentence of 30 years was neither harsh nor excessive but appropriate in the circumstances. The

appellant committed Aggravated Defilement on different victims amounting to separate counts thus the trial Judge was justified in ordering the sentences to run consecutively. Considering the period spent on remand, the trial Judge rightly noted that she

had considered the period of 2 and half years that the appellant $\mathsf{S}$ had spent on remand and we observed that the decision was passed in 2014 when the legal regime then did not require arithmetic deduction of the time spent on remand.

For the reasons advanced above, Ground No. 2 of the appeal also fails.

In conclusion, we find no merit in this appeal. It is hereby dismissed.

We so order.

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## Dated at Kampala this ........day of.................................... .2023. 15

Richard Buteera

**Deputy Chief Justice** 20

Christopher Gashirabake

**Justice of Appeal** 25

Oscar I Justice of Appeal