[2024] UGCA 165

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

# (CORAM: HELLEN OBURA, MUZAMIRU MUTANGULA KIBEEDI, MOSES **KAZIBWE KAWUMI, JJA)**

### CRIMINAL APPAEL NO.0693 OF 2015

(Appeal from the decision of Margaret Oguli Oumo, J delivered on 30^th April 2014 in Masaka Criminal Session case No.033 of 2013)

#### **WASSWA BENSON** $10$

#### APPELLANT

**VERSUS**

### **UGANDA**

$\mathsf{S}$

### **RESPONDENT**

$\mathcal{L}$

#### JUDGMENT OF THE COURT

This Appeal arises from the judgment of the High Court in which the Appellant was arrested, tried and convicted for Aggravated Defilement $15$ C/S 129(3) and 4(a) of the Penal Code Act. The Appellant was sentenced to 22 years imprisonment.

#### Background.

The convict and the victim were neighbours. On 26^th October 2012 the convict called the victim to his room and defiled her. The victim reported $20$ to her mother and the convict was arrested. During the trial, the convict pleaded guilty to the charge and he was on 30^th April 2014 sentenced to a prison term of 22 years. The convict was dissatisfied with the sentence and lodged an Appeal on only one ground:

#### **Ground of Appeal.** $25$

1. The trial Judge erred in law and in fact in sentencing the appellant to 22 years' imprisonment without considering the period spent on

remand which sentence is illegal.


Page 1 of 4

The Appellant's prayers are for the court to allow the appeal, set aside the sentence and substitutes it with a lesser sentence.

# **Representation**

Ms. Brender Ainomugisha on state brief appeared for the Appellant while Ms. Immaculate Angutok-Chief State Attorney together with Ms. Kemigisha Clare-State Attorney, appeared for the Respondent.

# **Submissions**

$\mathsf{S}$

It was argued for the Appellant that the sentence of 22 years imposed by the court was in disregard of Article 23(8) of the Constitution of the

**Republic of Uganda** which provides for the sentencing court to take into $10$ account the period spent on remand while imposing the sentence.

It was also argued that Regulation 15(1) of the Constitution (sentencing guidelines for courts of Judicature) (Practice)Directions of 2013 also require the sentencing court to take into account the period spent on

remand while imposing a sentence. 15

The court was referred to Kizito Senkula V Uganda. Criminal Appeal No.24 of 2001 in which the constitutional principle was discussed and confirmed by the court.

Counsel for the Appellant further submitted that the sentence imposed by the trial court should be substituted with a lower sentence following 20 the principles of consistency and uniformity in sentencing.

Counsel cited Bikanga Daniel V Uganda Court of Appeal Criminal Appeal No.38 of 2000 where a sentence of 22 years was substituted with 12 years and also Kabwiso Issa V Uganda Supreme Court Criminal Appeal

**No.7 of 2002** where a 15 years' sentence was reduced to 10 years. 25

For the Respondent, it was submitted in agreement with the submissions of Counsel for the Appellant that indeed the period the Appellant spent on remand was not taken into consideration by the trial Judge which was an error in law that should be corrected by the Appellate court.

Counsel for the Respondent noted that the Appellant was arrested on 26^th October 2012 and sentenced on 30^th April 2014 translating into 1 year,6 months and 4 days spent by him on remand as at the date of his conviction.

**Consideration by the Court.** $\mathsf{S}$

$10$

$15$

We have considered the submissions made by counsel and perused the record of the trial court relating to the sentencing hearing. It is imperative to observe that Article 23(8) of the Constitution of Uganda provides for the trial court to take into account any period spent by an accused on remand while imposing a sentence.

Article 23(8) specifically provides that: -

"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/her trial shall be taken into account in imposing the term of imprisonment."

The trial Judge while considering the mitigating factors considered the fact that the accused was a first offender of 37 years with a family of six children and had pleaded guilty thus saving court's time.

The court noted that the convict was remorseful and HIV positive but did $20$ not consider the time he had spent on remand.

We find it worthwhile to reproduce the sentencing passage after the trial court had considered the aggravating and mitigating factors leading to the imposed sentence.

The court stated: - $25$

> "Consequently, the court needs to give a deterrent sentence to curb such acts in the community and sentence him to 22 years."


closy

Page 3 of 4

- Article 23(8) is couched in mandatory terms. Any sentence that does not comply with that Constitutional requirement is illegal and liable to be set aside. Section 11 of the Judicature Act clothes this court with the powers of the trial court and it provides that: -. - "For the purpose of hearing and determining an appeal, the Court $\mathsf{S}$ of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

In the result, we find merit in the appeal. The sentence of 22 years imposed by the trial court is set aside. The convict is re-sentenced to 22 $10$ years. The 1 year,6 months and 4 days' period computed from when he was remanded to when he was sentenced is deducted from the 22 years' sentence.

The convict shall serve 20 years,6 months from the 30^th April 2014 being $15$ the date on which he was sentenced.

Cibee<br>12024

Dated at Masaka this ....................................

$20$

Hellen Obura **Justice of Appeal**

Muzamiru Mutangula Kibeedi 25 **Justice of Appeal**


Moses Kazibwe Kawumi

**Justice of Appeal** 30