[2023] UGCA 204

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#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL Coram: Buteera, DCJ, Mulyagonja & Luswata, JJA CRIMINAL APPEAL NO. 505 OF 2014

SEMPIIRA JOSEPH :::::::::::::::::::::::::::::::::::: $\mathsf{S}$

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

## {Appeal from the decision of Ibanda Nahamya, J, delivered on 24^th October 2014 at Mubende in High Court Criminal Session Case No. 209 of 2013

#### JUDGMENT OF THE COURT

#### **Introduction**

The appellant was indicted for the offence of aggravated defilement 15 contrary to section 129 $(3)$ , $(4)$ $(a)$ and $(c)$ of the Penal Code Act. After a full trial he was convicted and sentenced to 45 years' imprisonment.

#### **Background**

The facts that were admitted by the trial judge were that on 16^th January 2009, at Lulamba Village, Bukuya Sub county in Mubende 20 District, while the appellant was in bed with his wife, Namirimu Prossy, and their $1\frac{1}{2}$ months old daughter Barbra, the appellant subjected the baby to a sexual act which caused her injuries in her private parts. According to the testimony of Namirimu, she was awoken by the cries of the baby only to find the appellant leaving the 25

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side on which the baby lay and going back to his original position in their bed. That she at first imagined that the appellant was only covering the baby but the baby continued to cry all night. It was also her testimony that she noticed that the baby had slippery whitish fluids and blood in her waist, buttocks and vagina.

It was the case for the prosecution that throughout the rest of that night, the appellant slept. He showed no concern at all about the crying baby. In the morning, the mother with the help of one Segawa and a nurse reported a case of delilement to the Police Station. At the behest of the Police, the baby was examined by a medical doctor

- who established that she was defrled. The appellant was arrested and indicted for the offence of aggravated defilement for which he pleaded not guilty. After a full trial, the trial judge found him guilty and sentenced him to 45 years' imprisonment. 10 - Dissatisfied with both conviction and sentence, the appellant appealed on three grounds as follows: 15 - ^I. That the learned trial judge erred in law and fact when she solely relied on evidence of PW3 Namirimu Prossy and PW4 Segawa Christopher to convict the appellant who proved to court that he had a grudge with PW4. - 2. That the learned trial judge erred in law alrd fact when she improperly a-llowed the amendment of the indictment after some witnesses had testilied but failed to give the appellant his rights under section 5 1 of the Trial on Indictments Act and this caused the appellant a miscarriage of justice. - 3. That the learned trial judge erred in law and fact when she passed an illegal sentence without considering the period the

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appellant had spent on remand contrary to Article 23(8) of the Constitution or in the alternative the sentence given to the appellant was harsh and manifestly excessive in the circumstances.

The respondent opposed the appeal. 5

## Representation

At the hearing of the appeal on 6th September 2022, Mr Richard Bwiruka represented the appellant on State Brief. The respondent was represented by Mr Joseph Kyomuhendo, Chief State Attorney, from the Office of the Director Public Prosecutions.

Mr. Bwiruka for the appellant informed court that he had instructions to withdraw the first two grounds of appeal and he prayed for leave to do so. He also prayed that the appellant be allowed to appeal against sentence only, and both prayers were granted.

The respondent raised a preliminary objection that the grounds of appeal as framed by the appellant contravened rule 66 (2) of the Court of Appeal because they were imprecise and argumentative. We did not deem it necessary to consider the preliminary objection because it appeared to us that it was targeted at discrediting the appeal against conviction which was contained in the first and second grounds of appeal, not the sentence. We came to that conclusion because there were really no submissions to challenge the manner in which the 3'd ground of appeal was framed offered by counsel for the respondent. The appeal was therefore disposed of on

the basis of the 3.4 ground of appeal only.

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## Submissions of Counsel

With regard to ground 3, Mr. Bwiruka, for the appellant referred this court to Article 23 (8) of the Constitution which makes it mandatory for the period the convict spent in lawful custody before trial or conviction to be taken into account in imposing a term of imprisonment. He submitted that though the trial judge mentioned the four years the appellant spent on remand as a mitigating factor, she did not state that she took them into account before sentencing him to 45 years' imprisonment. He thus asserted that the sentence that she imposed was illegal.

In the alternative, he submitted that the sentence of 45 years' imprisonment imposed on the appellant was manifestly harsh and excessive because he was a frrst-time offender, only 27 years old and had spent 4 years and 9 months on remand before he was convicted.

He urged court to maintain consistency in sentencing convicts with similar offences and relying on Maziliro Donozio v Uganda; CACA No. 251 of 2OlO, he proposed a sentence of l5 years' imprisonment for the appellant. 15

In reply, Mr. Kyomuhendo for the respondent relied on Kiwalabye

Bernard v Uganda, Criminal Appeal No. 143 of 2OO1 (unreportedl cited in Kato KaJubt Godfrey v Uganda; SCCA No. 20 of 2014, and submitted that the sentence of 45 years' imprisonment was neither harsh nor excessive. He further submitted that the sentence was justified given the nature of the offence, age of the victim and the 20

relationship between the appellant and the child. He opined that the trial judge carefully evaluated both the mitigating ald aggravating 25

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factors and found that the latter outweighed the former, and so sentenced that appellant as she did.

Counsel further relied on the decisions in Bacwa Benon v Uganda; CACA No. OT of 2Ol1 and Bonyo Abdul v Uganda; SCCA No. 7 of

- 2O 1 I and submitted that this court confirmed severe sentences where the aggravating factors outweighed the mitigating factors in those cases. He went on to contend that in the instant case, the sentence was imposed on the basis of the proper principles of law. - With regard to the appellant's contention that the sentence imposed was illegal, counsel for the respondent submitted that the appellant was sentenced on 24th October 20 l3 when the sentencing principles required the judicial officer to consider the time spent on remand, not deduct it, as it was done in Kizlto Senkula v Uganda; SCCA No. 24 of 2OOt. He contended that the trial judge indeed considered the period that the appellant spent on remand which made the sentence of 45 years' imprisonment imposed upon the appellant legal and 10 15

justified in the circumstances.

He prayed that the appeal be dismissed.

## Determination of the Appeal

The principle that this court will interfere with a sentence imposed by the trial court only when the sentence is illegal or founded on wrong principles of law is well settled. The court will also interfere with the sentence where the trial court has not considered a material fact in the case; or has imposed a sentence which is harsh and manifestly excessive in the circumstances. [See Kiwalabye Bernard 20 25

v Uganda Supreme Court Criminal Appeal No. 143 of 2OOl

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## (unreported), Bashir Ssali v Uganda [2005] UGSC 21 and Livingstone Kakooza v Uganda [1994] UGSC 17.

The appellant raised 2 issues in his appeal against sentence, one of them in the alternative. We shall first address the contention that the sentence was illegal for failure to take into account that the appellant spent a period of time on remand before he was sentenced, contrary to Article 23 $(8)$ of the Constitution, which is mandatory. But before we do so, we deemed it necessary to set down the sentencing ruling of the trial judge. At pages 36-37 of the record of

appeal, she stated thus: 10

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"I have wholly adopted the submission of the Prosecution relating to aggravating factors. Aggravated Defilement is a grave offence more so of a baby - a child of your own. A convicted person is liable to suffer *death. Prosecutions (sic) spared you this and asked for 45 years. The* child was a baby of 1 ½ months. You were 28 years old and a father to the victim indeed you should have kept her safe.

Court has reviewed the manner in which you defiled the baby in the *vagina and anus. The doctor's report corroborated this. It was only* you as a man in the house. You did not dispute the sodomy is a sin and heinous act. (sic) Your use of a Christian name is just facade. (sic) You have no fear of God in you. Living the life of a lumpen with associated behaviours has landed you into this. You are not remorseful, even trying to lie or make Court a liar. You are a danger to society and I agree you must be given a deterrent sentence.

*I have noted the mitigating factors.* $1^{st}$ *offender; was youthful; has* 25 parents to look after **and 4 years spent on remand** but the aggravating factors exceed the mitigating factors in the case. A deterrent sentence is essential to teach you a lesson and others that behave like you. *Pursuant to Para.* 5 (2) (a) and (b) of the Sentencing Guidelines the sentence should serve as denouncing the unlawful 30 conduct and to deter you from committing an offence and others like your child should grow up with a father. I hereby sentence you to a *term of imprisonment of 45 (forty-five) years."*

BE Iron<br>SLK We observed that in her ruling the trial judge, justifiably in our view, expressed her disgust and indignation at the heinous offence that was committed by the appellant against his own baby girl while he lay in the same bed with her mother. However, Article 23 (8) of the Constitution provides as follows:

(8) trIhere a peraon is convlcted and sentenced to a term of imprisonment for an offence, any perlod he or she spends in lawful custody ln respect of the offence before the completion of his or her trlal shall be taken lnto account in imposing the term of imprlsonment.

The Supreme Court in Rwabugande Moses v Uganda, SCCA No. 25 of 2OL4, held that "A sentence arriued at without taking into consideration the peiod spent on remand ts illegal for failure to comply with a mandatory constifutional prouision."

We note that in this case, though the trial judge adverted to the fact that the appellant spent 4 years on remand, she did not take it into consideration while sentencing him. Instead, she emphasised that the aggravating factors outweighed the mitigating factors. The sentence that she imposed was therefore illegal for that reason and we so find. We would set it aside for that reason alone but we deemed it necessar5r to also consider the alternative complaint about the 15 20

alleged harshness of the sentence and will do so.

As to whether the sentence that was imposed was harsh and manifestly excessive in the circumstances of this case, paragraph 6 (c) of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, 2013 requires sentencing courts to tale into account the need for consistency with appropriate

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sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances. We observed that the trial judge in this case did not apply this principle while sentencing the appellant. Instead, she "wholly adopted the submission of the Prosecution relating to aggravating factors." She also without any analysis of the proposed sentence accepted the proposal by the prosecution that the convict be sentenced to 45 years' imprisonment and so sentenced him accordingly.

We further observed that though counsel for the appellant and the 10 appellant himself drew the attention of the court to some mitigating factors, they were never seriously considered. This was contrary to the provisions of paragraph 36 of the Sentencing Guidelines because this particular offender was a first-time offender with no previous conviction or no relevant or recent conviction. He was also youthful for he was only 27 years old at the time he committed the offence. 15

For the reasons above, we have no other alternative but to set aside the sentence of 45 years that was imposed upon him and we hereby do so. We shall now proceed to impose an appropriate sentence pursuant to section 11 of the Judicature Act. But before we do so, we note that this court as an appellate court is also under the obligation to observe the principles of consistency and uniformity in sentencing. In Aharikundira Yustina v Uganda, SCCA No. 27 of 2015; [2018] UGSC 48, the Supreme Court emphasised the role of the appellate courts in that regard when it stated thus:

"While sentencing, an appellate court must bear in mind that it is setting guidelines upon which lower courts shall follow while sentencing. According to the doctrine of stare decisis, the decisions of

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appellate courts are binding on the lower courts. Precedents and *principles contained therein act as sentencing guidelines to the lower* courts in cases involving similar facts or offences since they provide an indication on the appropriate sentence to be imposed.

It is the duty of this court while dealing with appeals regarding *sentencing to ensure consistency with cases that have similar facts.* Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with *equality and without unjustifiable differentiation.*"

We will therefore consider sentences that have been imposed for the offence of aggravated defilement before we arrive at an appropriate sentence for the appellant.

There are a number of authorities by the Supreme Court and the Court of Appeal where sentences above the 15 years proposed by 15 counsel for the appellant have been handed down to accused persons convicted of the offence of aggravated defilement. The following cases illustrate this point.

In Oumo Ben alias Ofwono v Uganda, Supreme Court Criminal

- **Appeal No. 20 of 2016**, (unreported), the Court of Appeal and the 20 Supreme Court found appropriate and upheld a sentence of 26 years' imprisonment, imposed by the trial Court in a case of aggravated defilement. The appellant, aged 26 years, had defiled his own daughter who was $3\frac{1}{2}$ years old. - 25 In Kabazi Issa v. Uganda; Criminal Appeal No. 268 of 2015, this court upheld a sentence of 32 years' imprisonment on two counts of aggravated defilement as imposed on the appellant by the trial court. It did so on the ground that it was well within the permissible

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sentencing range of 30 years to death as provided by the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013.

In Klzza Geoffrey v Uganda; Criminal Appeal No. O76 of 2O1O, this court upheld a sentence of 30 years' imprisonment on each of two counts of aggravated delilement with which the appellant was convicted. The sentences were to run concurrently.

In Asega Gtlbert v Uganda Crimlnal Appeal; I{o. 016 of 2O13, the appellant defiled two minors aged 9 and 6 years, respectively. This court conhrmed a sentence of 3O years' imprisonment for the offence on each count. 10

In Ssenoga Frank v Uganda; Criminal Appeal No. O74 of 2OlO, the victim who was defiled was under the age of 14 years. This Court sentenced the appellant to 28 years and 4 months' imprisonment.

In Oplo Moses v Uganda; Criminal Appeal No. 118 of 2OlO, the victim who was defiled was the daughter of the appellant and aged nine years old. This Court confirmed a sentence of 27 years' imprisonment imposed upon the appellant. 15

In the instant case, the victim was only 7 t/z lears old. The appellant was her father and the fact that he defiled her was despicable, to say the least. She sustained serious injuries both in the vaginal and anal orifices. The appellant was then 27 years old and he committed the offence while he was lying in the same bed with the mother of the child, his wife, which was a serious breach of trust. We are not surprised that the act kindled the anger of the trial judge who 20 25

convicted and sentenced him to 45 years' imprisonment. PL

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However, given the mitigating factors that were stated on his behalf the term of 45 years' imprisonment was on the high side. We are of the view that a term of imprisonment of 3O years will serve the cause of justice in this case. From that we are obligated to deduct the period of 4 years that he spent on remard before he was convicted and now sentence the appellant to serve a term of 26 years' imprisonment. The sentence shall begin to run on 24th October 2013, the date on which he was convicted.

| Dated at Fort Portal this | ,Fl<br>'' | of | ia--q | 2023. | |---------------------------|-----------|----|-------|-------| |---------------------------|-----------|----|-------|-------|

Richard Buteera DEPUTY CHIEF JUSTICE

Irene Mulyagonja

20 WSTICE OF APPEAL

2s Eva K. L OF APPEAL