[2024] UGCA 326

#### ⁵ THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA HOTDEN AT GULU

lCorom: Egondo-Ntende, Tibulyo & Kozibwe Kowumi, !!Al

### CRIMINAL APPEAL NO. O354 OF 2015

(Arising from High Court Criminal Session Case No.475 of 2014 at Lira)

BETWEEN

# OYOO DENIS APPELLANT

AND

# UGANDA RESPONDENT

lAn oppeol ircfi the decision of Mdtgoret Mutonyi ! delivercd ot Liro on 7n Novembet 2074)

1S

#### UDGMENT OF THE COURT I

The appellant was indicted, pleaded not guilty, tried, convicted and sentenced to 30 years' imprisonment for aggravated defilement contrary to sections 129(3) and (a) of the Penal Code Act.

#### Background.

20 25 The appellant was a resident of Agoro village, Lamwo Parish, Palabek Sub County while the victim's parents had a home on the same village. On 22nd March 20L4, the appellant sought shelter from the home of the victim and her father directed him where to sleep. The appellant instead went to the victim's house while she was sleeping and had sexual intercourse with her while she slept.

The victim, who we sha ll call AJ, woke up and boxed the appellant while raising an alarm at the same time. Her parents responded to the alarm and arrested the appellant. He was matched to the palabek police Station and charged with aggravated defilement.


⁵ On 24th March 2014 the victim was examined and found to be in the range of 9 and 11 years with a ruptured hymen. The appellant was examined on 25th March 2O!4 and found to be in the age range of 18 to 20 years with a sound mind. The Appellant admitted his guilt both at the Police Station and during the trial consequent to which he was sentenced to 30 years' imprisonment. 10

Dissatisfied with the sentence, the appellant lodged an Appeal on the sole grou nd;

> "That the learned trial Judge erred in law and fact by imposing a manifestly harsh and excessive sentence of 30 years against the Appellant and failed to subtract from the sentence the period spent on remand which led to a serious miscarriage of justice to the preiudice of the Appellant."

### Representation.

Mr Douglas Odyek Okot represented the appellant on state brief while Caroline Marion Acio, Chief State Attorney in the Office of the Director Public Prosecutions, represented the respondent. 20

During the hearing, Counsel for the appellant applied for validation of the appeal that had been filed out of time as well as leave to appeal against sentence only. The Respondent's counsel did not object to the prayers. Accordingly, the appeal filed out of time was validated and leave granted to appeal against sentence only.

Counsel for the parties filed submissions, which with leave of court were adopted as their final submissions in the determination of the

Appeal. 30

Page 2 of 8

# s Submissions by Counsel for the Appellant.

Counsel argued that the trial court did not consider the mitigating factors in favour of the Appellant. He was 18 years old, a student at Pa la bek Secondary School.

He was remorseful and had pleaded guilty to the offence. The appellant 10 was also a first offender and an orphan who was responsible for the welfare of his siblings

It was also pointed out that the trial court did not take into account the period the appellant had spent on remand as required by Article 23(8) of the Constitution which rendered the imposed sentence illegal.

rs Counsel also faulted the trial court for not considering the principle of consistency in sentencing which would have guided the court to ^a lighter sentence and not the 30 years imposed on the appellant.

The Court was urged to set aside the sentence imposed by the trial court and substitute it with 5 years'imprisonment.

## 20 Submissions by Counsel for the Respondent.

Counsel for the respondent argued that the sentence of 30 years, imprisonment imposed by the trial court was neither harsh nor excessive since the maximum penalty for the offence committed by the Appellant was death.

- zs Counsel submitted that The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions,2013 placed the starting range for Aggravated defilement at 35 years and the sentencing range at 30 years hence the imposed sentence was within the permitted range. - :o The respondent, however, conceded to the failure by the trial court to take into account the period the appellant had spent on remand before se nte n cing.

Page 3 of 8

&

s Counsel argued that it was curable on appeal by the court invoking its mandate under Section 11 of the Judicature Act and no miscarriage of justice was thus occasioned to the appellant.

The court was urged to uphold the sentence of 30 years' imprisonment imposed by the trial court.

# ro Analysis.

As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the tria I court and come to our own conclusions on the facts and the law while making allowance for the fact that we neither saw nor heard the witnesses testify. (See Rule 30 (1) (a) of The

1s Judicature (Court of Appeal Rules) Directions S.t. 13-10. Kifamunte Henry V Uganda, SC Criminal Appeal No.10 ol L997; Bogere Moses & Another V Uganda, SC Criminal Appeal No.1 ot L977.1

An appellate court will only alter a sentence imposed by the trial court if it is evident that it acted on a wrong principle, or overlooked some

zo material factor, or if the sentence is manifestly excessive in view of the circu msta nces of the case.

See Kyalimpa Edward V Uganda SC Criminal Appeal No.10 of 1995.

Further, the court may not interfere with the sentence imposed by the trial court simply because it would have imposed a different sentence zs had it been the trial court.

## See Ogalo S/O Owoura Vs Republic [1954] 2 E. A. C. A 270.

We shall be guided by the above principles in the determination of the Appeal.

It was argued that the trial court did not take into account the period :o the appellant spent on remand during the sentencing proceedings and this was conceded to by the respondent.

> Page 4 of 8 &

⁵ We thus found it necessary to reproduce the relevant excerpt from the sentencing order made by the trialJudge;

> "The accused was convicted of aggravated defilement on his own plea of guilty which is a mitigating factor. Nevertheless, he abused the courtesy of the father of the victim. Many young children are abused by people of the character of the convict. He savagely abused the sanctity of a small girl aged about 9 years. He paid back evil for good. His vicious conduct deserves to be punished........

Aggravated defilement is punishable by death. The victim did not even have secondary sexual charac'teristics which would have attracted the accused to her. He simply unleashed his sexual lust on an innocent girl and the motive for his visit in their home was unlawful, The age of the victim also aggravates the punishment much as he pleaded guilty. 15 2A

> Bearing in mind submissions of both Counsel, and the fact that aggravated defilement is rampant in this area, and the age of the victim, the convict is sentenced to 30 years' imprisonment.,,

A perusal of the submissions in aggravation and mitigation of the sentence does not reveal any mention of the time the appellant had spent on remand and the prayer for it to be taken into account by the trialjudge in determining the sentence.

The sentencing order also reveals that the trial court only considered the fact that the appellant pleaded guilty but did not take into account any other factors in mitigation of the sentence and particularly the period he had spent on remand.

## ⁵ Article 23(8) of the Constitution provides as follows;

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

The requirement to take into account the period a convict spent on remand while determining a sentence is mandatory.

The sentence imposed by the trial court thus violated the mandatory requirement in Article 28(3) of the Constitution and was th us illegal.

We thus invoke the powers of this court under section 11 of the Judicature Act to set aside the illegal sentence and re-sentence the Appellant to what we consider an appropriate term of imprisonment. 15

Section 11 of the Judicature Act provides as follows;

"ll. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and iurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

We find the aggravating factors to be that the appellant abused the trust and generosity of the victim's parents to abuse the victim and the observation by the trial court that the offence was rampant in the area.

The mitigating factors are that the a ppella nt was still a youth of 18 years and a first offender. The appellant admitted the offence during the recording of the charge and caution Statement and further pleaded guilty which saved the courts'time and points to his being remorseful. 30

Page 6 of 8

s lt was also submitted for the appellant and not opposed by the respondent that the appellant was a student and an orphan with family responsib ilities that should have been considered by the trial court.

ln determining the appropriate sentence, we have also considered the need for consistency with appropriate sentencing levels and other 10 means of dealing with offenders in respect of similar offences committed in similar circu msta nces.

We are guided by Paragraph 6 (c ) of the Constitution (Sentencing Guidelines for the Courts of Judicature) practice Directions, 2013.

ln Aharikundira Yustina V Uganda, SC Criminal Appeal No.27 of 2005; rs [un reported] the court held that consistency is a vital principle in ^a sentencing regime and rooted in the rule of law. lt has to be applied with equality without unjustified differentiation.

ln Kabagambe Yoweri V Uganda, CACA No. G59 of ZO1S [2023] UGCA 341 the appellant who was 20 years old while the victim was 11 years, :o pleaded guilty of aggravated defilement and on appeal this court did not interfere with the sentence of 22 years'imprisonment that was imposed by the trial court.

ln Kimama Patrick V Uganda, CACA No.139 ol 2O2L IZOZ4I UGCA L72 this court on 17th July 2024 confirmed a sentence of 25 years imposed zs by the trial court for the appellant defiling a 12 years old child.

ln Apiku Ensio V Utanda. CACA No. 751 of 2015 [2021] UGCA 15, this court reduced a sentence of 25 years against the appellant who defiled a 14 years old child to 20 years.

ln Kasiita Tadeo V Uganda. CACA No. OL79 ol 2OL7 lZO24l UGCA 174 :o this court reduced the imposed sentence of 43 years, imprisonment to 20 years on 17th July 2024.

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a

⁵ ln Abale Muzamil V Uganda. CA Criminal Appeal No. OO39 of 2014 [2019] UGCA 5 this court confirmed a sentence of 19 years' imprisonment for the offence of aggravated defilement where the victim was 9 years old at the time of the offence.

ln light of the aggravating and mitigating factors and the decided cases set out here in above, we consider the term of l-5 years' imprisonment appropriate in the circumstances of this case. 10

We sha ll deduct the period of 8 months the a ppella nt spent on remand. The appellant will serve 14 years and 4 months from the 7th November 2014 when he was sentenced.

Signed, dated and delivered at Gulu this .. Rl}ay ot..h.\.. Y........ 2024. 15

0.

Fredrick Egonda-Ntende Justice of Appeal

2A

M ret Tibulya ^Justice of Appeal

F@\_

Moses Kazibwe Kawumi Justice of Appeal