Kanamwenje v Uganda (Criminal Appeal 287 of 2021) [2023] UGCA 316 (8 November 2023)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO.2B7 OF 2O2I

(Arising from High Court Criminal Case No. 105 of 2O1B)

KANAMWANIE EMMANUEL:::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

UGANDA (Appeal from the decision of the High Court of Uganda holden at Wakiso before Justice loyce Kavuma dated 27d November, 2021 in High Court Criminal Session Case No. 105 of 2O 1 B) RESPONDENT

# ]5 CORAM: HON. MR. ]USTICE CHEBORION BARISHAKI, ]A

# HON. LADY IUSTICE HELLEN OBURA, IA

# HON. LADY IUSTICE EVA LUSWATA, IA

# I UDGMENT OF THE COURT

This is an appeal from the decision of -Ioyce Kavuma, J in High Court Criminal 20 Session Case No. 105 of 2018 at Wakiso delivered on 22"d November, 2O2l in which the Appellant was convicted on his own plea of guilty on all the 3 counts of the offence of aggravated defilement contrary to section 129(3) (4) (a) and (b) of the Penal Code Act, Cap 120 and sentenced to 20 years' imprisonment less 4 years and 5 months' period of time spent on remand.

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### Background

Briefly, the facts as accepted by the learned trial Judge were that on 11th June, 2Ol7 , the victim N. F aged 5 years went to the public toilet to ease herself where the Appellant was employed as the attendant. The Appellant ordered the victim l0 to undress while he also undressed. The Appellant had unlawful sexual intercourse with the victim.

The victim took some time to return and the victim's mother sent one Rose to go check on her. Rose went to the public toilet and called out the victim's name. The Appellant who had locked himself inside the toilet with the victim 15 opened the door and his zip was open while the victim's dress was up. The

victim narated the incident to her mother who reported the matter to police. A medical examination was carried out on both the victim and the Appellant. The examination of the victim revealed that she was 5 years old with bruises on her labia while the examination of the Appellant revealed that he was of sound 20 mind.

The Appellant was indicted with the offence of aggravated defilement contrary to section 129(3) (4) (a) of the Penal Code Act. At trial. the Appellant pleaded guilty as charged. He was convicted and sentenced to 20 years' imprisonment less 4 the years and 5 months' time spent on remand.

25 The Appellant now appeals against sentence only having obtained leave of Court to do so. The sole ground states;

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5 1. That the learned trial ludge erred in law and fact in sentencing the Appellant to 15 years' imprisonment on aII the three counts to serve the sentence concurrently which sentence was deemed illegal, manifestly harsh and excessive in the circumstances.

# Representation

l0 At the hearing of this appeal, Mr. Emma Muwonge appeared for the Appellant while Kyomuhendo Ioseph, Chief State Attorney appeared for the Respondent.

# Appellant's submissions

Counsel for the Appellant submitted that while sentencing the Appellant, the learned trial Judge considered the period of 4 years and 5 months that the 15 Appellant had spent on remand but did not consider other factors as was submitted in mitigation, for example, that the Appellant was a first offender and aged 40 years old. He added that failure by the learned trial Judge to take into consideration the mitigating factors made the sentence of 20 years' imprisonment illegal in the circumstances. He relied on Tamale Richard V

20 Uganda, Court of Appeal, Criminal Appeal No.19 of 2O12. where this Court reduced a sentence of 25 years' imprisonment imposed on the Appellant to l8 years' imprisonment because the trial Court had not taken into account the mitigating factors.

Counsel further submitted that the trial Court failed to arithmetically handle 25 the issue of the period the Appellant had spent on remand and did not deduct the same as required under Article 23(8) of the Constitution and the case of 3lPage

s Rwabugande Moses V Uganda, Supreme Court Criminal Appeal No.25 of 2O14. He prayed that the appeal be allowed and the sentence of 15 years' imprisonment be substituted with a sentence which is in accordance with the law.

### Respondent's submlsslons

l0 In reply, counsel for the Respondent submitted that contrary to counsel for the Appellant's submissions that the learned trial I udge did not arithmetically deduct the period that the Appellant had spent on remand, the evidence on record indicates that the learned trial Judge did deduct the period of 4 years and 5 months that the Appellant had spent on remand. He added that the t5 legality of the sentence would not arise where the learned trial Judge complied with the provisions of the law.

Regarding the severity of the sentence, counsel for the Respondent submitted that the learned trial J udge considered the Appellant's mitigating factors at page 22 of the record of appeal. He added that the learned trial Judge 20 considered the aggravating factors alongside the mitigating factors and found that the former outweighed the latter. Counsel further submitted that the sentencing range for aggrravated defilement is 35 years but the learned trial Judge lowered it to 15 years and 7 months. In counsel's view, the sentence of 15 years and 7 months' imprisonment was actually lenient given the 25 sentencing range in cases where the aggravating factors outweigh the mitigating factors. He relied on Bacwa Benon V Uganda, CACA No. B69 of

5 20 14 where this Court confirmed a life imprisonment sentence for an Appellant who had pleaded guilty to aggravated defilement. He prayed that the appeal be dismissed and the sentence of the lower Court be upheld.

# Court's Conslderation

We have considered the submissions of both counsel and carefully studied the l0 Court record and the authorities availed to us.

We are alive to the duty of this Court that requires us to re-appraise the evidence and come up with our own inferences on all questions of fact and law. See frule 3O(1) ofthe Rules ofthis Court and Kifamunte Henry V Uganda, Supreme Court Criminal Appeal No.lO of 1997.

- l5 As an appellate Court, we can only interfere with a sentence imposed by a trial Court in very limited circumstances. We can do so only where the sentence is either illegal, or founded upon a wrong principle of law, or the Court has failed to consider a material factor. We can also do so if the sentence is harsh and manifestly excessive in the circumstance. See Kizito Senkula V Uganda - 20 Supreme Court Criminal Appeal No.24 of 2OO1, Bashir Ssali V Uganda, Supreme Court Criminal Appeal No.4O of 2OO3 and Ninsiima Gilbert V Uganda, Court ofAppeal Criminal Appeal No. 18O of2O1O.

Counsel for the Appellant submitted that while sentencing the Appellant, the learned trial Judge considered the period of 4 years and 5 months that the

25 Appellant had spent on remand but disregarded other factors as was submitted in mitigation.

5 In response, counsel for the Respondent submitted that the learned trial Iudge considered the aggravating factors alongside the mitigating factors and the former outweighed the latter.

The learned trial Iudge stated as follows;

"The Court considers the mitigating factorc. He has not wasted Court's l0 time by pleading guilty. He has spent 4 years and 5 months on remand. He is remorseful thus this discounts the death sentence since the act was not likely to cause death.

None the less, the aggravating factors;

The convict is aged 44 years; he is fiit to be a father to the victim who was t5 aged 5 years. The innocent child was exposed to the sexual act thus exposing her to diseases. The manner in which the act was done was dehumanizing in a public toilet. A filthy place that the victim had no escape toute nor would she be heard if an alarm was made. The convict being a toilet cleaner to wlnerable persons who access the toilet. (sic) He took 20 advantage of his job to satisfy his sexual desires by deliling an innocent 5 year-old child. He was aged 42 years old mentally sound, he knew that he was committing a crime.

The victim sustained no injuries as seen on PF3A. The aggravating fact is the age of the wlnerable child, 5 years old. The accused deserves a 25 custodial sentence. Such persons should be kept out of society until they reform.

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-5 I therefore sentence him to 20 years' imprisonment less the pertod spent on remand. He is therefore to serve 15 years, 7 months' imprisonment."

It is clear from the above excerpt that the learned trial Judge took into consideration both the mitigating and aggravating factors before sentencing the Appellant.

- Counsel for the Appellant further faulted the learned trial Judge for failing to arithmetically handle the issue of the period the Appellant had spent on remand and not deducting the same as required under Article 23(B) of the Constitution and the case of Rwabugande Moses V Uganda, Supreme Court Criminal Appeal No.25 of 2O14. l0 - From the evidence on record and the excerpt already stated above, the learned trial ludge took into consideration the period of 4 years and 5 months that the Appellant had spent on remand. She stated that she had sentenced the Appellant to 20 years' imprisonment less the period spent on remand and the Appellant was therefore to serve l5 years, 7 months' imprisonment. t5 - We agree with counsel for the Respondent that the trial Iudge rightly exercised her discretion although she accorded some leniency to the Appellant as the aggravating factors outweighed the mitigating factors. l0

Given the aggravating factors of this case where the victim was 5 years and the Appellant was 40 years old, fit to be a father to the victim, the sexual act was

performed in a public toilet, we find that the sentence of I 5 years and 7 months was not harsh. 25

We therefore find no reason to interfere with it and accordingly confirm the same. $\mathsf{S}$

In the result, the Appeal has no merit and is dismissed.

# We so order

Dated at Kampala this $\mathbb{R}^+$ $\ldots$ day of $\ldots$ $.2023.$

Cheborion Barishaki

JUSTICE OF APPEAL

Hellen Obura

JUSTICE OF APPEAL Eva. K. Luswata JUSTICE OF APPEAL

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