[2025] UGCA 57

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

fCoram: Egonda-Ntende, Tibulya, Kazibwe Kawumi, JJAI

### CRIMINAL APPEAL NO. 0576 OF 2OI5

(Arisingfrom High Court Criminal Session Case No. 204 of 2012, at Gulu)

#### BETWEEN

OYOORICHARD APPELLANT

#### AND

UGANDA RESPONDENT

[An appealfrom a Judgment of the High Court of Uganda (Keitirima, J.), delivered on the 2nd June, 20141

## JUDGMENT OF THE COURT

#### Introduction

- t1l The appellant was convicted by the High Court on 2nd June, 2014 on two counts of aggravated defi lement contrary to Section 1 29(3) and lZ9@) (a) of the Penal Code Act. On 5th lwe,2014, the appellant was sentenced to 35 (Thirty-Five) years' imprisonment on each count of the indictment, which sentences were to be served concurrently. At the commencement ofthe hearing, the appellant successfully sought leave ofthis court to appeal out of time as well as to appeal only against the sentences. - l2l The facts ofthis appeal as established by the trial court are that the victims; A F and A J, aged 13 and l1 years respectively, were pupils at Kalong Primary School. The victims and the appellant were all residents of Namokora Sub-county, Kitgum District. On the night of 25th May, 2012 the victim's mother went to check on the victims in the house they were sleeping in. She found the door locked from inside and when she called the victims, they informed her that somebody was inside the house having sexual intercourse with them. The victim,s mother forcefully entered the house and with lit dry grass, she found the appellant squatting behind the door of the victim's house wearing only an under-pant.

- t3] The victim's mother made an alarm that the neighbours responded to but the appellant fled the scene. The matter was reported to Police and the victims were medically examined and found to have had their private parts sexually penetrated and hymen ruptured' The appellant was later on arrested and charged. He was tried and convicted of2 counts of aggravated defilement. He was sentenced to 35 years' imprisonment on each count. - 14) Being aggrieved with that sentence, the appellant lodged the instant appeal wherein he formulated two grounds of appeal, namely;

'1 . The teamed trial judge erred in both law and fact when he failed to take into account the period spent on remand belore imposing the sentence of35 years' imprisonment'

2. The learned trial judge erred in both law and fact by imposing a sentence of 35 years' imprisonment on the appellant which sentence was harsh and excessive in the circumstances of the case.'

### Representation and Submissions of Counsel

- t5] At the hearing, the appellant was represented by Mr. Layoo Julius Paul while Ms. Acio Marion, Chief State Attomey in the Office of the Director of Public Prosecutions, held brief for Mr' Kyomuhendo Joseph for the respondent. - t6l On ground 1 ofthe appeal, counsel for the appellant submitted that the leamed trial Judge did not consider the period spent on remand when he sentenced the appellant. He stated that the omission rendered the sentence of 35 years' imprisonment imposed on the appellant on each count, illegal. On ground 2, he submitted that since the appellant had already spent 2 years on remand, the trial Judge did not do a mathematical calculation to deduct the period spent on remand from the final sentence' He also faulted the Judge for not giving due consideration to the mitigating factors pertaining to the appellant being a first-time offender who pleaded guilty to the offence, thereby not wasting courts time. - U) He referred to Orsarm Iddi ^v Usanda Court ofAooeal Cnminal Aooeal No. 0182 of2009, (uffeported) where the Court of Appeal upheld ^a sentence of 15 years' imprisonment for the aggravated defilement of ^a 13-year-old victim. He also cited Lukwago Henrv v Usanda. Criminal

Appeal No. 0036 of 2010 (unreported) and Kibaruma John v Uganda, Court of Appeal Criminal Appeal No. 255 of 2010, (unreported) where sentences of 11 and 13 years were imposed in cases of aggravated defilement.

- Learned counsel for the respondent opposed the appeal and submitted that [8] the appeal lacked merit and ought to be dismissed. She submitted that the learned trial Judge fully complied with the provisions of Article 23(8) of the Constitution of the Republic of Uganda, 1995. She argued that there is no justification for interfering with the sentence since the learned trial Judge did not flout any known principles of sentencing, having considered all the mitigating and aggravating factors of this case and judiciously arrived at the 35 years' imprisonment sentence. - $[9]$ She referred to Aharikundira Yusitina v Uganda SCCA No. 27 of 2015, (unreported) Bonyo Abdul v Uganda, SCCA No. 07 of 2011 (unreported), Bacwa Benon v Uganda, CACA No.869 of 2014 (unreported), Segirinya Fulugensio v Uganda Criminal (Court of Appeal) Appeal No. 0549 of 2016 (unreported), where appellate Courts imposed sentences in excess of 35 years' imprisonment for offence of aggravated defilement. She submitted that the 35 years' imprisonment sentence imposed on the appellant was within the sentencing range of the trial court.

### **Analysis**

In <u>Kyalimpa Edward v Uganda, Supreme Court Criminal Appeal No. 10</u> $[10]$ of 1995, (unreported) the principles upon which an appellate court should interfere with a sentence were considered. The Court stated that:

> 'An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Refer to Ogalo s/o Owoura vs. R (1954) 21 E. A. C. A 126 and R vs. MOHAMEDALI JAMAL (1948) 15 E. A. C. A 126.

- Cognisant of the above principles, we now turn to consider the merits of $[11]$ the appeal. The first facet of the appeal is that learned trial Judge failed to take into account the period spent on remand before imposing the sentence of 35 years' imprisonment. - The sentencing order of the trial Judge is as follows; $[12]$

'I have heard both the aggravating and mitigating factors in this case. However, the actions of the convict were heinous to say the least. Defiling two girls in a single night was an act of highest irresponsibility and sadism to say the least. The girl child need to be protected from the predatory antics of the likes of the convict. Society is better off without the likes of the convict mingling with innocent human beings and those vulnerable like the victims in this case. The convict could have infected both of them that very night with H. I. V which he was found to have. It was like he is on a spree not to die alone, such behavior need to be checked and society protected from it. I will therefore sentence the convict to 35 (Thirty-Five) years' imprisonment on each Count of the indictment.'

[13] It is evident that the learned trial judge never considered, let alone mention, the period the appellant had spent in pre-trial custody prior to the conclusion of his trial. This was a direct violation of article 23 (8) of the Constitution which states.

> '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 the completion of his or her trial shall be taken into account in imposing the term of imprisonment.'

The rule as understood at the time the learned trial judge passed the $[14]$ sentences in this case was that a sentencing court must take into account or consider the period spent on remand while it determined the sentence to impose on the convicts. This is what the Constitution ordered in article 23 (8) and was affirmed in a string of Supreme Court decisions. See Kabwiso Issa v Uganda [2003] UGSC 36; Kizito Senkula v Uganda [2002] UGSC 36; Kabuye Senvewo v Uganda [2005] UGSC 23; Katende Ahmed v Uganda [2007] UGSC 11 and Bukenya Joseph v Uganda [2013] UGSC 3.

- It is true that at the time the decision appealed from was made the rule did $[15]$ not require mathematical deduction as established in <u>Rwabugande v</u> Uganda [2017] UGSC 8. Nevertheless, failure to take into account or to consider the said period rendered such sentence illegal. - Counsel for the respondent argued that at the time of imposing the $[16]$ sentence, the trial Court was not mandated to deduct the time spent on remand by the appellant from the sentence. Whereas that may be correct, the court was still nevertheless bound to take into account or consider the same before determining the sentence. - There is no indication from the trial Judge's sentencing notes that he $[17]$ considered the period of 1 year and 11 months that the appellant had spent on remand before imposing the term of imprisonment of 35 years. The trial court's omission/failure to consider the remand period before determining the sentence to be imposed on the appellant rendered the sentence illegal. Illegality of a sentence is a sufficient ground to warrant the setting aside of a sentence imposed by the trial court. - In the result having found the sentence imposed by the learned trial judge $[18]$ illegal, it is unnecessary to consider whether it was manifestly harsh and or excessive, raised in ground 2. We shall exercise our powers under section 11 of the Judicature Act to sentence the appellant afresh. - [19] In <u>Mbunya Godfrey v Uganda, Supreme Court Criminal Appeal No. 4 of</u> 2011, (unreported) the Supreme Court stated that while no two crimes are identical in all respects, courts of law should, as much as circumstances permit have consistency and uniformity in sentencing so that cases having similar facts, attract similar and/ or uniform sentences for those convicted of those offences. - In Ramadhan Magara v Uganda [2017] UGSC 34, the Supreme Court $[20]$ held that,

'It must therefore be stated by the judicial officer that the sentence was arrived at with both the mitigating and aggravating factors in mind. It is only then that the accused will be sure that the judge addressed his or her mind to the cited mitigating factors but nevertheless came to the conclusion that the aggravating factors outweighed the mitigating ones.'

- In Livingstone Kakooza v Uganda [1994] UGSC 17, the Supreme Court $[21]$ was of the view that the sentences imposed in previous cases of similar nature do afford material for consideration while this court is exercising its discretion in sentencing. - We do note counsel for the appellant's submission that the appellant $[22]$ pleaded guilty and saved court's time was a distortion of the facts and misleading to say the least. From the record, the appellant pleaded not guilty to both counts. - In Turyayomwe Moses v Uganda, Court of Appeal Criminal Appeal No. $[23]$ 20 of 2013, (unreported) the appellant was convicted of aggravated defilement and sentenced to 15 years' imprisonment by the trial court. This court upheld the sentence of 15 years' imprisonment as appropriate in the circumstances of the case. - In Ninsiima v Uganda [2014] UGCA 65, a sentence of 30 years' $[24]$ imprisonment that had been imposed on an appellant who had defiled a 8 year old girl was set aside and substituted with a sentence of 15 years' imprisonment. - In <u>Babua v Uganda [2016] UGCA 34</u>, the appellant was convicted of the $[25]$ offence of aggravated defilement of a 12-year-old and sentenced to life imprisonment. On appeal, this court set aside the sentence and substituted it with a sentence of 18 years' imprisonment. - The appellant was not only a first-time offender but was also a marginal $[26]$ adult, an 18-year-old S.3 student at the time of commission of the offence, capable of reform. We believe that for such a young school going convict, a sentence that presents a possibility of rehabilitation and reintegration back into society would fulfill the interest of justice. We are equally aware that he committed a capital offence and put the lives of the victims at risk.

#### **Decision**

l27l We find a sentence of 18 years, imprisonment on each count as appropriate. The pre-trial remand period of 1 year and 1 1 months is deducted from the 18 years' imprisonment. The appellant will serve ^a sentence of 16 years and I month's imprisonment on each count from 2nd June,2014, the date ofconviction. Both sentences shall run concurrently.

Signed, dated and delivered at Gulu this21E6v of (z-2. 2025.

drick Eoonda-Ntende Justice of Appeal r

Mar Tibulya Jus ce ofAppeal

Moses KazibweKawuml Justice of Appeal