[2024] UGCA 178

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MASAKA

(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)

# CRIMINAL APPEAL No. COA-00-CR-CN-283-2016

#### SSEGUJJA MANISURI ::::::::::::::::::::::: **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

#### **VERSUS**

#### UGANDA:::::::::::::::::::::: **:::::::::::::::::::RESPONDENT**

[Appeal against sentence only arising from the decision of the High Court of Uganda at Masaka (Hon. Justice John Eudes Keitirima) dated 16^th September 2016 in Criminal Session Case No. 026 of 2016]

## JUDGMENT OF THE COURT

## Introduction

$1$

The Appellant was convicted of the offence of Aggravated defilement contrary to Section $(129(3)(4)(a)$ and (b) of the Penal Code Act and sentenced to 40 years' imprisonment after taking into account the remand period. At the time of commission of the offence in November 2015, the victim was 12 years while the appellant was 44 years old and one of the workers of the victim's mother. He lived near the home of the victim's mother in Kaazi Malanga fishing village in Kalangala district. The appellant was also HIV positive and infected the victim with HIV. The victim was an orphan as her father died when she was 6 months old.

#### The appeal

$21$ The appellant being dissatisfied with the decision of the High Court and, with leave of this court, appeals against the sentence only on two grounds, namely:


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$00$

- The learned trial Judge erred in law and fact when he imposed a manifestly harsh and i) excessive sentence of 40 years' imprisonment on the appellant thereby occasioning a miscarriage of justice. - The learned trial Judge erred in law and fact when he imposed an illegal sentence of ii) 40 years' imprisonment on the appellant without considering the period spent on remand by the appellant thereby occasioning a miscarriage of justice.

## **Cross appeal**

- The respondent filed a Notice of Cross Appeal dated 15^th May 2024 by which she seeks an $3]$ order of this court to vary the sentence from 40 years' imprisonment to life imprisonment/imprisonment for life on the ground that: - This honourable court has inherent powers to vary the sentence $i)$

## **Representation**

- At the hearing of the appeal, Mr. Muhammed Mbalire, learned Counsel, appeared for the $4]$ Appellant on State brief; while Mr. Joseph Kyomuhendo, a Chief State Attorney in the office of the Director of Public Prosecutions (DPP), appeared for the Respondent. The Appellant was present in court. - The parties, with leave of the Court, relied on their written submissions as their legal 51 arguments in support of their respective cases. As such, the resolution of the appeal is based on the written submissions.

## **Determination of the appeal**

The appellant faults the sentence imposed by the trial court on two grounds: First, that it is 61 harsh and manifestly excessive. Second, that it is illegal.


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$7$ We shall resolve the appellant's complaints starting with the second ground of appeal as its resolution in the affirmative automatically renders the resolution of the first ground academic.

#### Ground two – Illegality of the sentence

- The appellant's complaint in ground two is that the learned trial Judge passed an illegal 81 sentence of 40 years' imprisonment in so far as he did not arithmetically deduct the period spent on remand by the Appellant in accordance with the Supreme Court decision in the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014. - 91 The respondent disagreed. She submitted that the judgment in the **Rwabugande case** having been delivered by the Supreme Court of Uganda on 03rd March 2017 was not applicable to the instant matter where the impugned sentence was imposed by the trial Court on 16^th September 2016. - $10]$ The learned trial Judge's sentencing record stated thus:

"I have heard both the mitigation and aggravating factors. However, the convict ruined the life of a young girl whom he should have spared. The convict is not fit to remain in society as he is a risk to the girl child. I have considered the period the convict has spent on remand and I will now sentence him to forty years (40) years imprisonment. The convict has a right of appeal against the conviction and sentence. Signed. Eudes Keitirima Hon. Judge 16/09/2016" (Emphasis added)

$11$ It is our finding that the impugned sentence was passed on 16^th September 2016. This was before the decision in **Rwabugande Moses Vs Uganda** (above) was rendered by the Supreme Court on 03^rd March 2017. Therefore, the principle of arithmetic deduction of the remand period prescribed by the *Rwabugande* case above cannot be applied


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retrospectively to fault the trial Court's decision which was rendered before the Rwabugande judgment.

We also find that by the trial Judge stating that "I have considered the period the convict $12]$ has spent on remand and I will now sentence him to forty years (40) imprisonment", he complied with the sentencing regime at the time as enunciated by the Supreme Court in several decisions rendered before the *Rwabugande case* which include *Kizito Senkula Vs.* Uganda, Supreme Court Criminal Appeal No. 24 of 2001 (unreported), where the Supreme Court stated as follows:

> "As we understand the provisions of Article 23 (8) of the Constitution, they mean that when a trial Court imposes a term of imprisonment as sentence on the convicted person the Court should take into account the period which the person spent in remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise."

Ground two accordingly fails. $131$

#### Ground one – Gravity of the Sentence

- $[14]$ The appellant's complaint in ground one is that the sentencing Judge failed to consider the principles of uniformity and consistence in sentencing the Appellant which led him to impose a sentence of 40 years' imprisonment term which was manifestly harsh and excessive in the circumstances of the case. - $15]$ Further, the appellant submitted that the trial Judge failed to consider the mitigating factors like the appellant's youthful age of 45 years, being a first time offender, being unrelated to the girl defiled, of a vulnerable health status of HIV positive which cannot withstand and manage prison conditions, had been on remand for a period of 01 year, 03 months and 10 days, had reformed, and was remorseful and submissive to the authorities during his arrest.

Joy .

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- $16]$ The appellant prayed that the impugned sentence of 40 years' imprisonment be set aside. and a lesser sentence of 18 years be given to the appellant, after deducting the period spent on remand. - $17]$ The respondent disagreed and contended that the sentence is manifestly low given the circumstances under which the appellant committed the offence and its effect on the victim. The respondent instead prayed for enhancement of the sentence to imprisonment of the appellant for his entire natural life. The respondent relied upon section 34(2) of the Criminal Procedure Code Act, section 132(e) of the Trial on Indictments Act, section 11 of the Judicature Act and Rules 2(2), 32,91 and 93 of the Judicature (Court of Appeal Rules) Directions. - $18]$ From the *allocutus* proceedings; the mitigation factors for consideration by the trial court were raised by the appellant's counsel at the time in the following terms:

"The convict is a first time offender with no previous record. He is an old man of 45" years. I pray that court should be lenient when passing its sentence."

- 19] We are satisfied that while sentencing the appellant, the trial court took into account the above mitigating factors alongside the aggravating factors raised by the prosecuting Counsel. - $20]$ We have also considered the decisions of this Court and the Supreme Court where the victim was in the same age bracket as the one in the instant matter, and contracted HIV as a result of the defilement. In **Bacwa Benon Vs Uganda**, **Court of Appeal Criminal Appeal No. 869 of 2014,** this Court upheld the sentence of life imprisonment of the appellant for defiling a 10 year old girl and infecting her with HIV. The appellant was 38 years old at the time of commission of the offence and cohabiting with the victim's mother. - $21]$ In Benywanira Emmanuel Vs Uganda, Court of Appeal Criminal Appeal No. 0120 of **2018 at Kabale** the appellant was a first offender, aged 47 years old, with a normal mental

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status and HIV positive at the time of commission of the offence. He was convicted of the offence of Aggravated defilement on his own plea of guilty. The victim was aged 4 years and had contracted HIV as a result of the defilement. The Court of Appeal upheld the High Court sentence of 32 years' and 06 months' imprisonment after deducting the two years and six months spent on remand.

- 221 In the case of Omara Charles Vs. Uganda Criminal Appeal No. 0158 of 2014, the Appellant was aged 33 years at the time of commission of the offence and the victims' stepfather. The two victims defiled by the Appellant were aged 10 and 12 years respectively. The Appellant was HIV positive and infected one of the victims (the younger one) with HIV. He was convicted on his own plea of guilty and the Court considered this factor and saving court's time. He had spent one year and two months in pre-trial detention prior to his conviction. This Court (Kakuru, Egonda-Ntende & Obura, JJA) sentenced him to serve 16 years' imprisonment in respect of count one and ten years' imprisonment in respect of count two, after deducting the period of one year the appellant had spent on pre-trial detention in respect of each count. Both sentences were to run concurrently. - $23]$ What clearly emerges from the decided cases is that while considering the principle of consistency, the court ought to be mindful of the uniqueness of each particular case. In the instant matter, sentencing a 44 year convict to serve an imprisonment term of 40 years in a country whose average life expectancy is about 66 years is on the higher side (See: **The** World Health Organisation's Health Data Overview for Uganda, accessed on 10.11.2023 - https://data.who.int/countries/800). Life expectancy of Ugandans has been considered by this court as material when sentencing in the cases of **Wakiso Patrick and** Tibita Peter, Court of Appeal Criminal Appeal No. 0368 of 2012; and Nsiyaleta Moses aka Musa, Court of Appeal Criminal Appeal No. 186 of 2010. - $[24]$ We accordingly set aside the sentence of 40 years' imprisonment term imposed by the High Court. In our exercise of our mandate under **Section 11** of the **Judicature Act**, we have considered the mitigating and aggravating factors as presented to the trial court and in the

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appellant's submissions before this court, the range of sentences in the cases of Aggravated defilement as detailed in this judgment and those cited by the parties pursuant to the principle of consistence. We consider the term of 27 years' imprisonment as the appropriate sentence in the circumstances of this case.

$25$ From that sentence, we deduct the period of about one year and four months spent by the Appellant in pre-trial remand. Accordingly, the Appellant shall serve a term of 25 years and 8 months commencing from the 16^th of September 2016, the date of conviction

# **Cross-appeal**

26] From our finding on ground one, consideration of the cross appeal becomes an academic exercise. It is accordingly dismissed.

#### **Disposition** 27]

- 1. The appeal against sentence is allowed. - 2. The sentence imposed by the High Court against the appellant for the offence of aggravated defilement is hereby set aside. - 3. The Appellant shall serve a term of 25 years and 8 months commencing from the 16^th of September 2016, the date of conviction - The respondent's cross appeal is dismissed.

We so order.

Delivered at Masaka and dated this 16^th day of July 2024.

HELLEN OBURA **Justice of Appeal**

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$1200$ MUZAMIRU MUTANGULA KIBEEDI **Justice of Appeal**

**MOSES KAWUMI KAZIBWE Justice of Appeal**