Kasajja v Uganda (Criminal Appeal 552 of 2015) [2024] UGCA 163 (15 July 2024)

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

(Coram: Hellen Obura, Muzamiru M. Kibeedi & Moses K. Kazibwe JJA)

#### CRIMINAL APPEAL NO. O552 OF 2015

## KASAJJA BUWEMBO RICHARD :::::::::::::::::::::::::::::::::::: **VERSUS**

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

(Appeal from the decision of the High Court (Oguli Oumo, J) delivered on the 29<sup>th</sup> day of April 2014 in HCT-06-CR-SC-O29/2O12 at Kampala).

### JUDGMENT OF THE COURT

#### Introduction

The appellant was convicted, on his own plea of guilty, of the offence of aggravated defilement contrary to section $129(3)(a)(a)$ of the Penal Code Act and sentenced to 17 years' imprisonment. The particulars of the offence were that the appellant on the 10th day of October 2011, at Kisaba landing site in the Kalangala district performed a sexual act with NS a girl under the age of 14 years.

Being aggrieved by the decision of the trial court, the appellant has appealed to this Court against sentence only on the sole ground: -

"That the learned trial Judge erred in law and fact when he sentenced the appellant to 17 years" imprisonment which sentence was illegal."

#### **Representation**

Immaculate Angutoko CSA, h/b for Nabasa Caroline Hope appearing with Kemigisha Claire SA for the respondent. Brender Ainomugisha for the appellant on state brief. Counsel sought

$\mathbf{1}$

leave to appeal out of time and to appeal against sentence only. She also sought leave to amend the appellant's submission to correct the criminal case number at the trial court. It should be criminal session case number 29 of 2013. She prayed that the submissions be adopted as appellant's arguments in the appeal.

#### Appellant's Submission

It was then submitted for the appellant that the sentence of 17 years' imprisonment was illegal as it was handed down in total disregard of Article 23(8) of the Constitution of the Republic of Uganda which enjoins court to take into account any period a convict has spent in lawful custody before the completion of his/ her trial in respect of the offence in imposing the term of imprisonment.

Counsel pointed out that although the learned trial Judge noted that the appellant had been on remand for $2^{1/2}$ , there is no evidence that the same period was ever considered in imposing the sentence of 17 years. Counsel prayed that this Court find merit in this appeal, set aside the illegal sentence and substitute it with a lesser sentence.

#### **Respondent's Submission**

For the respondent, there was no objection to the application for extension of time and for leave to appeal against sentence only. Neither did they have objection to the corrections. On the merits of the appeal, it was contended that the appellant's claim that the period spent on remand was not taken into account is unfounded and misconceived. Counsel urged this Court to analyse what the learned trial Judge underscored during the sentencing proceedings where the appellant's /defence counsel then, clearly pointed out the period spent on remand and the learned trial Judge took into account the period spent on remand when she stated: -

"... He is 22 years of age and has so has high chances to reform' He pleaded guilty of the earliest opportunity and so saved courts time and resources. He has been on remand for $2^{1/2}$ years and $\frac{1}{2}$ appeared remorseful, Never the less the offence with which he is convicted carries a maximum sentence of death on conviction. The convict botched the innocence of a young child and this affected her both physically and psychologically and will traumatise her for the rest of her life. Such acts are rampant in society and have made the community insecure place for the girl child. The court needs to give a deterrent sentence to send a message to any would be defilers in the community to learn a lesson from these sentences. Consequently, court sentences him to 17 year's imprisonment." [Emphasis added].

It was argued that from the above extract, it is clear that the learned trial Judge considered all the underscored mitigating and aggravating factors including the time spent on remand and this is buttressed by the use of the word "consequently" before pronouncing the sentence. In counsel's view, the sentence handed down was informed by all those factors, including the period spent on remand. Counsel submitted that at the time this case was decided, that is, on 29<sup>th</sup> April 2014, the Supreme Court had in many cases interpreted Article 23(8) of the Constitution and pronounced that the position of the law to the effect that, the words "to take into account" does not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused person on remand from the sentence to be imposed by the trial court (Kizito Senkula vs Uganda, SCCA No. 24 of 2001, Kabuye Senvewo vs Uganda, SCCA No. 22 of 2002, Katende Ahamad vs Uganda, SCCA No. 5 of 2004 and Bukenya Joseph vs Uganda, SCCA No. 17 of 2010 cited with approval in Rwabugande Moses vs Uganda, SCCA No. 25 of 2014).

#### **Resolution of the Appeal by Court**

We are grateful to counsel for addressing us on the principle that underpin the duty of this Court as a first appellate court and those that govern interference with the discretion of the sentencing Judge. We shall bear those principles in mind as we resolve this appeal. Appellant's applications are granted as/there was no objection by the respondent.

$\frac{1}{2}$ 3

We have perused the relevant part of the sentencing ruling reproduced above and we accept the appellant's submission that while the learned trial Judge acknowledged the fact that the appellant had been on remand for $2^{1/2}$ years, she never expressly stated that she had taken into account that period while imposing the sentence of 17 year's imprisonment as stipulated under Article 23 (8) of the Constitution which provides: -

"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 or her trial shall be taken into account in imposing the term of imprisonment." (Emphasis ours).

Counsel for the respondent tried to persuade this Court that by the learned trial Judge using the word "consequently" before she pronounced the sentence, she actually took into account the period spent on remand which she had earlier alluded to. We are unable to accept that reasoning because, in our view, the use of the word "consequently" was in relation to the aggravating factors she had highlighted and her conclusion that there was need for a deterrent sentence. It had nothing to do with the period the appellant had spent on remand. We therefore find the sentence of 17 years imposed on the appellant illegal because it was arrived at without taking into account a mandatory constitutional provision and we accordingly set it aside.

Consequently, we invoke the powers of this Court under section 11 of the Judicature Act and deduct the period of $2^{1/2}$ years that was spent on remand and sentence the appellant to a term of imprisonment of $14^{1/2}$ years to be served from the date of his conviction which is 29<sup>th</sup> April 2014.

.2024

We so order.

$\dots$ day of. Dated at Masaka this...


Hellen Obura abee 21<br>7/2024 **JUSTICE OF APPEAL**

$\overline{a}$

Muzamiru M. Kibeedi

**JUSTICE OF APPEAL**

A

Moses K. Kazibwe **JUSTICE OF APPEAL**