[2024] UGCA 167

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL HOLDEN AT MASAKA CRIMINAL APPEAL NO.0544 OF 2016

#### CORAM: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kazibwe $\mathsf{S}$ Kawumi, JJA)

#### **SANSA PETER BOGERE**

APPELLANT

**VERSUS**

**UGANDA** $10$

RESPONDENT

# (An appeal from the decision of the High Court of Uganda at Masaka before Keitirima J delivered on19th December 2017 in Criminal session case No.0117 of 2013)

$15$

### JUDGMENT OF THE COURT

The Appellant was charged with Aggravated defilement contrary to section 129(3) & (4) of the Penal Code Act. The victim (referred to as NJ) was 2 years and 4 months old at the time the offence was committed on 17^th March 2013. The Appellant was after a full trial convicted and sentenced to 43 years' imprisonment on 19^th December 2016.

#### Background.

The Appellant was a casual labourer in the home of the victim's parents. On the 17^th March 2013 the parents left the victim with the Appellant. A neighbour visited the home and found the Appellant sleeping in a chair with the victim crying beside him. The neighbour carried the victim and noticed a $25$ slippery substance on her private parts as he lifted her dress to wipe tears from her eyes.

The neighbour took the victim to a lady in the neighbourhood who observed that she had not been so badly affected. The victim's mother was informed 30 and a complaint was lodged at Police. The Appellant was arrested, tried and convicted of Aggravated defilement.


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Dissatisfied with the judgment of the trial court, and having been granted leave under Section 132 (1) (b) of the trial on indictment Act, Cap 23 and Rule 43 (3) (a) of the rules of this Court, the Appellant lodged an Appeal on two grounds.

## **5** Grounds of Appeal.

- 1. The trial Judge erred in law and in fact in sentencing the Appellant to 43 years which was a manifestly harsh and excessive sentence in the circumstances thereby occasioning a miscarriage of justice. - 2. The trial Judge erred in law when he sentenced the Appellant to 43 $10$ years' imprisonment without considering the period spent on remand.

### Representation

Caroline Aciro Chief State Attorney together with Nasaazi M. Sharon –state Attorney holding brief for Samali Wakooli –assistant DPP, appeared for the $15$ Respondent, Innocent Kaliba represented the Appellant.

### **Submissions**

It was argued for the Appellant that the trial Judge imposed a sentence that did not offer the Appellant an opportunity to reform since he committed the 20 offence at the age of eighteen and would leave prison at the age of 61. Counsel further argued that the imposed sentence was against the principle of consistency in sentencing observed by trial courts.

The court was referred to Kobusheshe V Uganda. CA Criminal Appeal **No.0110 of 2008** where a sentence of 30 years was substituted with 17 years on appeal. The case of Tusabe John Bosco V Ugnda . CA Criminal Appeal 25 No.0425 of 2014 in which a Life sentence imposed by a trial court in a case of Aggravated defilement was substituted with 22 years on Appeal by this court was also cited by Counsel for the Appellant.

Regarding the second ground of appeal, Counsel submitted that the trial Judge did not comply with the Constitutional requirement to take into 30 account the period spent on remand by the Appellant hence the sentence of 43 years imposed by the court was illegal.

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For the Respondent, it was argued that the sentence imposed by the trial court was not excessive since the maximum sentence for the offence of Aggravated defilement was death on conviction.

It was further argued that the trial Judge did not flout any of the principles in sentencing. Counsel cited Biryomumisho Alex V Uganda. CA Criminal Appeal **No.464 of 2016** to bolster the argument. Counsel further cited **Kabaseregenyi** James V Uganda. SC Criminal Appeal No.10 of 2014 in which the court upheld a Life sentence in an Aggravated defilement case where the victim was 15 years old.

The Court was also referred to Bonyo Abdul V Uganda. SC Criminal Appeal $10$ **No.7 of 2011** where the court upheld a Life sentence in a case of Aggravated defilement where the victim was 14 years old.

It was submitted that an appropriate sentence is a matter of discretion by the sentencing Judge and each case presents its own facts upon which the judge exercises discretion. The appellate court will not normally interfere with the 15 discretion unless the sentence is illegal or manifestly excessive so as to amount to an injustice.

Counsel pointed out that the victim was a defenceless 23 months old baby left in the care of the Appellant who abused the trust of his employers in the course of satisfying his sexual gratification. The court was referred to the case 20 of Busiku Thomas V Uganda. Criminal Appeal No.33 of 2011 where the court emphasized the balancing of the rights of the victims with those of accused persons while imposing sentences.

In regard to the requirement for the trial courts to consider the remand 25 period while imposing sentences, it was argued that the court credited the period to the convict since at the time the words "to take into account" did not require to apply a mathematical deduction of the exact number of years spent on remand by an accused person.

Counsel cited Kirisa Moses V Uganda SC Criminal Appeal No.23 of 2016 which cited with approval the case of Sebunya Robert V Uganda. SC Criminal 30 Appeal No.58 of 2016 to the effect the decision in the case of Rwabugande Moses V Uganda did not have a retrospective effect on the sentences which were passed before it.

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### Consideration by the court.

Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) requires this court to re-appraise and re-evaluate all the material that was placed before the trial Judge. The court in doing so must be mindful of the fact that it had no 5 opportunity to hear the witnesses.

We have considered the submissions by counsel for the respective parties, perused the record and the authorities cited for either side. It was correctly submitted for the Respondent that the trial court has the discretion in imposing a sentence. The appellate court may interfere with a sentence 10 imposed by the trial court if it acted illegally or on a wrong principle or misdirected itself or overlooked a material factor.

Livingstone Kakooza V Uganda. SCCA No.17 of 1993 the court observed that: "Courts can and will only interfere with a sentence of the trial court if the sentence is illegal or is based on a wrong principle or the court overlooked a material factor or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice."

In sentencing the Appellant, the Prosecution submitted that it had no criminal record of the Appellant but he violated the innocence of a toddler 20 who had been left in his care.

It was submitted that he violated the trust of the victim's parents in order to satisfy his sexual urge which conduct must be punished to deter other would be offenders and to protect other children.

It was submitted in mitigation that the convict had been on remand for over three years and he was a young man who deserved another chance since he was the bread winner for his family.

The trial Judge while sentencing the Appellant noted that the convict was a first offender who violated the innocence of a child left in his care. It was noted that he was a danger not only to children but also mature people he may rape in the future. The court noted that the convict was not remorseful, did not plead guilty and there is need to keep the likes of him out of $\mathcal{L}$ circulation to protect children.

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The trial Judge noted that the offence was too prevalent in the region and there was need to send a message that it could not be tolerated anymore. In the result he sentenced the convict to 43 years with the period on remand to be deducted.

The court is alive to the discretion of the trial Judge while imposing a $\mathsf{S}$ sentence and to the cases where life sentences have been imposed in cases of Aggravated defilement. Each case must however be considered on its unique merits in the exercise of the discretion.

We note that the trial Judge did not consider the Appellant's age at the time he committed the offence as a mitigating factor. The Appellant was 18 years $10$ old and a first offender which we consider to be material factors the court should have taken into account while imposing the sentence.

In the circumstances, we find the sentence of 43 years rather excessive and set it aside. Invoking Section 11 of the Judicature Act which empowers the 15 court to exercise the powers of the court from which the appeal arose, we resentence the Appellant to 22 years.

In determining the sentence we have taken into consideration the necessity for consistency in sentencing and the Sentencing guidelines for the courts of judicature which require the age and the convict being a first offender to be taken into account in determining an appropriate sentence.

In Ninsiima Gilbert V Uganda. CA Criminal Appeal No.0180 of 2010, a sentence of 30 years imposed for a conviction for Aggravated defilement was substituted with 15 years. The Appellant was 29 years and a first offender with dependants to support.

In Olara John Peter V Uganda, CA Criminal Appeal No.30 of 2010 this court upheld a sentence of 16 years on account of the Appellant being HIV positive as an aggravating factor.

In Tushabe V Uganda CA Criminal Appeal No.0425 of 2014 this court found a sentence of 22 years appropriate to the circumstances of the case. The Appellant had been convicted of defiling a 3years old baby and had been 30 sentenced to life imprisonment which was set aside and substituted for 22 years. $\mathcal{L}$

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We are mindful of the sentencing regime before the decision is Rwabugande V Uganda (supra) but note that the trial Judge did not meet that threshold. The 43 years' sentence was thus illegal and is set aside under section 12 of the Judicature Act and we accordingly reduce the sentence to 27 years.

The period of 3 years and 9 months that the Appellant spent on remand shall be deducted from the 27 years. The Appellant shall accordingly serve 23 years and 3 computed from 19^th December 2016 being the date he was sentenced.

day of July 2024. Dated at Masaka this.

Hellen Obura **Justice of Appeal**

Muzamiru Mutangula Kibeedi **Justice of Appeal**

Moses Kazibwe Kawumi **Justice of Appeal**