Lukwavu v Uganda (Criminal Appeal 117 of 2019) [2024] UGCA 10 (23 January 2024)

#### <sup>5</sup> THE REPUBLIC OF UGANDA

### IN COURT OF APPEAL UGANDA HOLDEN AT KAMPALA

(Coram: Cheborion Baishak| Hellen Obura, Eua K. Lusuata, JJA)

## CRIMINAL APPEAL No. 0117 OF 2Ol9

#### BETWEEN

10 LUKWAVU YUSUF:::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Judgment of Margaret Mutonyi, J, sitting at Mukono High Court in Criminal Session Case No. 144 of 2019, delivered on l"t day of March 2OL9l

### JUDGMENT OF THE COURT

# Introduction

20 1l This appeal arose from the judgment of the High Court in which the appellant Lukwavu Yusuf was convicted on a plea of guilty on three counts for the offence of aggravated defilement contrary to Section 129 (31 and 4(a) & (b) of the Penal Code Act Cap. 120. It was stated in the indictment that during February 2016, at Namwezi Zone in the Buikwe District, the appellant being infected with HIV, performed a sexual act with three girls who for the purposes of the appeal we shall refer to as NJ aged 9 years, NH aged 10 years and NS aged 1O years, respectively. 25

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<sup>5</sup> 2] According to the High Court record, the appellant was sentenced to a term of 20 years' imprisonment, following his counsel presenting a plea bargain agreement. The facts he admitted during the trial were that NJ who was a pupil at Bright Valley Primary School resided with her paternal grandmother. On the other hand, NH was a pupil at Bereniyazi Nursery School, while NS was a pupil at Bereniyazi Primary School. During early February 2O16 the appellant lured the three girls into a valley from where he served them some sweets which made them unconscious, whereupon he performed a sexual act on all three of them. The appellant cautioned the girls not to report the incident. In the same month of Februar5r 20 16, the appellant took the same girls to a grave yard where he performed a sexual act with them in turns. The victims sustained injuries and were walking with difficulties. NJ was examined on Police Form 3 (a) and found to be 9 years with a raptured hJrmen. Similarly, NH was examined on Police Form 3 (a) and found to be 7 years old, with piles of white residue on the vulva, but with an intact hymen. NS was also examined on Police Form 3 (a) and found to be 8 years with her h5rmen also intact. The appellant was examined on Police Form 24 (al and confirmed to be aged 45 years and of a normal status. Police Form 3 (a) upon which the victims were examined and Police Form 24 (al tn respect of the appellant were admitted with no contest from the defence. 10 20 25 15

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#### 5 Representation

- 3l When this appeal was called for hearing, Mr. Emmanuel Muwonge represented the appellant on State brief, and Mr. Joseph Kyomuhendo a Chief State Attorney, appeared for the respondent. - We a-llowed the prayer by Mr. Muwonge to validate the supplementary memorandum of appeal that was previously liled for the appellant on 15/8122. We in addition granted leave sought for the appeal to proceed against sentence only. It is stated in the memorandum of appeal: 10 - 15 That the learned trial Judge ened in law and fact in sentencing the appellant to 2O gears' imprisonment on all the three counts to run conanrrently uhich sentence u)as deemed illegal, manifestly harsh and excessiue in the circumstances. - 20 Legal arguments of both counsel were by written submissions, which we have keenly considered when deciding the appeal.

# Submissions for the Appellant.

4] Mr. Muwonge submitted that his client was convicted and sentenced to three counts of aggravated defilement contrary to Section 129 l3l (a) (a) and (bf of the Penal Code Act. He then recounted the duty of this Court as set out under Rule 3O (lf of the Judicature (Court of Appeal Rules) Directions, S. I No. 13- 10 (hereinafter the Rules of Court). To buttress his submissions, Counsel cited several cases which discussed the powers of an appellate court to consider the evidence on record

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afresh. He cited for example, **Diana Luutu Nabbengo versus** Uganda, CA Criminal Appeal No. 128 of 2020 which followed Kifamunte Henry versus Uganda, SC Criminal Appeal No. 10 of 1997 and Dinkerral Ramkrishan Pandya versus R (1957) EA **336** where it was held that:

> "The first appellate court has a duty to reevaluate the evidence and reappraise all the evidence brought before it and to draw its own findings/ inferences and conclusions of the fact and law. In exercising this duty, the court must be conscious of the fact that it did not have the opportunity to observe the deamnor of the accused and to that extent, the *Court must be guided by the observations made by the trial* Court."

5] Counsel in addition referred to the Supreme Court decision in Kiwalabye Bernard versus Uganda, SC Criminal Appeal No. 143 **of 2001,** it was held that;

> "The appellate court is not to interfere with the sentence" imposed by the trial court which has exercised its discretion unless the exercise of the discretion resulted in a harsh or manifestly excessive sentence or where the sentence imposed is so low as to amount to a *miscarriage of justice or where the sentencing Judge proceeded on a wrong principle.*"

Counsel in addition made reference to **Section 11 of the** Judicature Act which grants this court the same powers of 30 sentencing as the trial court if it considers invoking such powers justifiable in the circumstances.

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6] After drawing our attention to pages 9 and 10 of the record, Mr. Muwonge argued that when imposing a sentence, the Judge never sought to be advised on the mitigation or antecedents of the appellant. He in that regard provided this Court's decision in Tamale Richard versus Uganda, Criminal Appeal No. 19 of 2OL2, where this court was persuaded to interfere and set aside a prison term of 25 years after being satisfied that the trial court had not taken into account the mitigating factors presented for the appellant. He also referred to the Supreme Court decision in Rwabugande Moses versus Uganda, SC Criminal Appeal No. 25 of 2OL4, and argued that in addition, the trial Judge failed to deduct the period the appellant had spent on remand prior to his conviction as required by Article 23(8) of the Constitution. He invited us to lind the present sentence illegal for those two reasons. 15 5 10

# <sup>20</sup> Submissions for the Respondent

7l Mr. Kyomuhendo substantially agreed with Mr. Musoke's submissions and the authorities he cited with regard to the powers of this Court on appeal. He in addition agreed with the arguments raised for the appellant that the trial Judge neglected to consider the period the appellant had spent on remand prior to his conviction, which resulted into an illegal sentence. He elaborated that argument by drawing our attention to the provisions of the Constitution upon which that right is premised as well as decisions of this Court and the Supreme Court that had discussed the right. He in addition drew our attention to page 36 of the

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- <sup>5</sup> record with the warrant of commitment which indicates that the appellant was to serve 20 years' imprisonment inclusive of the period spent on remand. Mr. Kyomuhendo deemed that as an error because the learned trial Judge ought to have deducted the period the appellant had spent on remand. He re-emphasized that sentence was illegal, and could be cured by this Court deducting the period the appellant had spent on remand. 10 - 8l However, Mr. Kyomuhendo strongly contested the submission that the sentence was harsh and manifestly excessive. In his view, a prison term of 2O years for an appellant who was confirmed to be HIV positive and had repeatedly defiled three girls in <sup>a</sup> monstrous style, was in fact lenient. He argued further that the appellant is estopped from complaining about the 2O years' imprisonment since he negotiated and then agreed upon it. In this regard counsel relied on Rule 6(21 of the Judicature (Plea Bargainf Rules, 2O16 (hereinafter Plea Bargain Rulesl which provides that a plea bargain binds the accused as one who entered into it. He argued then that the appellant should not be allowed to depart from an agreement that he entered into willingly after it was explained to him in open Court.

9] It was counsel's view that the appellant chose to enter the plea bargain and agreed to serve a sentence of 20 years' imprisonment after realizing that the aggravating factors against him, far outweighed the mitigating factors. He in that regard referred to this Court's decision in Bacwa Benon versus Uganda, Criminal Appeal No. 869 of 2Ol4 where this honorable Court confirmed a 25 30

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- <sup>5</sup> term of lile imprisonment in respect of an appellant who had pleaded guilty to aggravated defilement. And also that of l{;abazi Issa vs Uganda, Criminal Appeal No. 268 of 2015 where this Court conlirmed a sentence of 32 years' imprisonment against arr appellant who had defiled two girls. Counsel in addition referred to decision of Bonyo Abdul versus Uganda, Criminal Appeal No. 07 of 2O11 where the Supreme Court equally conlirmed a life imprisonment sentence against an HIV positive appellant convicted of the same offence. 10 - 101 In conclusion Mr. Joseph Kyomuhendo prayed that this court exercises its discretion under Section 11 of the Judicature Act, in particular by enhancing the sentence from 20 years' imprisonment to imprisonment for the natural life of the appellant. 15

## Analvsis and decision of the Court

11] We have carefully read the record, considered the submissions for both sides, and the law and authorities cited and those sourced by the Court. We are alive to the duty of this Court as the first appellate Court to review the evidence on record and reconsider the material before the trial Judge, including the decision of the trial Court, before arriving at our own decision. Rule 30(1) (al of the Judicature (Court of Appeal Rules) Directions refers. We also do agree and follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O of 1997, where it was held that on a first appeal, this court has a duty to: 20 25 30

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l. "... review the evidence of the case and to reconsider the materials before the trial judge. The Appellate Court must then make up its own mind not disregarding the judgment appealed from, but carefully weighing and considering it."

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12] Both Counsel did appreciate that sentencing is a matter of discretion of the sentencing Judge. We would add that each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses versus Uganda, SC Criminal Appeal No. 23 of 2016. Thus, our powers to interfere with a 15 sentence are quite limited. Both this Court and the Supreme Court have on numerous occasion given direction on the extent of our powers. It was for example stated in Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 10 of 1995, (which followed R vs. De Haviland (1983) 5 Cr. App. R(s) 109 as follows: $20$

> "..... It is the practice that as an appellate court, this *Court will not normally interfere with the discretion of* the trial Judge unless the sentence is illegal or unless *Court is satisfied that the sentence imposed by the trial* Judge was manifestly so excessive as to amount to an *injustice:*"

We shall bear in mind those important principles as we make our decision.

13] This appeal was lodged against sentence only. The appellant who through a plea bargain agreement agreed to a sentence of 20 years' imprisonment, in this appeal considered that sentence, manifestly excessive and illegal. We shall address the contest against the

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- legality of the sentence, which if decided in favour of the appellant should substantially resolve the appeal. - 14] Every sentence should be made in accordance with the law. For that reason, every Court must after determining an appropriate sentence consider, if applicable, the remand period for the convict in question. This is a statutory requirement laid down in Article $23(8)$ of the Constitution which provides as follows:

"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".

15] The Supreme Court in the now well followed decision of **Rwabugande versus Uganda (supra)** made specific directives on how the remand period should be considered during sentencing. The Justices held in part that:

> "*Article 23 (8) of the Constitution (supra) makes it mandatory* and not discretional (sic) that a sentencing judicial officer *accounts for the remand period... It is our view that the taking* into account of the period spent on remand by a court is necessarily means reducing or subtracting that period from the final sentence. That period spent in lawful custody prior *to the trial must be specifically credited to an accused......*"

*The Court was then emphatic that:*

"A sentence arrived at without taking into consideration the *period spent on remand is illegal for failure to comply with the* mandatory constitutional provision".

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- The same Court in **Kizito Senkula versus Uganda, Criminal** Appeal No.24 of 2001 advised that, any sentence should commence from the date of conviction, but not back dated to the date when the convict first went into custody. - 16] As pointed out by Mr. Muwonge, the first point of reference to confirm the legality of a sentence, would be the sentencing ruling. In this case, when imposing the sentence, the learned trial Judge had this to say:

"The court having questioned the accused concerning his" *constitutional rights. Court also finds that his plea of* guilty is based on facts, and, he has freely and *voluntarily understood the nature of this. His plea of guilty and the consequences thereof and endorsing this* agreement where both the State and the Defense have agreed on the sentence of 20 years' imprisonment for the *three counts. The sentences are to run concurrently".*

- 17] It is clear as pointed out by both counsel that the trial Judge fell short of accounting for the period spent on remand. The constitutional provision must be applied even for those convicts who choose to plead guilty and negotiate their sentences through plea bargain. We would hold then that the trial Judge imposed an illegal sentence one that we now set aside. Having done so, we would find no reason to consider the appellant's contention that the sentence was manifestly harsh and excessive. - 18 Having set aside the sentence, we are mandated to follow the provisions of Section 11 of the Judicature Act (as amended) and 30 enforce what we believe is an appropriate sentence. However, before we can do so, we observe and appreciate that this case

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- <sup>5</sup> poses special circumstances. We have not found any fault in the plea agreement or the procedure followed by the Court to endorse and enter it on the record. The only omission was the failure of the Judge to deduct the remand period, which we agree was not only an illegality, but also a great injustice to the appellant. Taking into consideration that the appellant pleaded guilty to multiple charges of repeatedly defiling very young girls, and also taking cognizance of previous decisions of sentences of defilement provided by the respondent, we do not consider as valid the claim by the appellant that a sentence of 20 years was manifestly harsh or excessive. More important, notwithstanding, the error made when sentencing the appellant, going by the decision of this court in Oketch Simon versus UgandqCriminal Appeal No. 7 of 2O18, (that followed Aria Angelo versus Uganda, CA Criminal Appeal No. 439 of 2015 the plea bargain agreement by which he agreed to plead guilty remains valid and he is still bound by its terms. We say so because the following were fulfilled: 10 15 20 - a) The appellant accepted the plea bargain with full awareness of the facts of the case - b) The appellant accepted the plea bargain with full awa-reness of the legal consequences. - c) The appellant accepted the plea bargain in a genuinely voluntarily manner - 19] In addition to the above, the appellant has already served nearly five years of his sentence. This Court must then make a decision that best serves the justice of the matter and at the same time

save State resources. Our mandate to intervene under such circumstances is provided for under Section 11 of the Judicature Act (as amended), which places us in the same position as the Court of first instance. It is provided as follows:

## Court of Appeal to have powers of the Court of original jurisdiction. 10

"*For the purpose of hearing and determining an appeal,*" the Court 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".*

- 20] We accordingly hold and direct that the plea bargaining agreement entered into between the appellant and the State on $20/2/2019$ , shall remain valid and in force. The sentence of 20 years agreed upon in that agreement is also maintained. In line with the provisions of Article $23(8)$ of the Constitution, we proceed to deduct from that sentence a period of three years and one month that the appellant had remained on remand prior to his sentencing date. - 21] It is therefore the order of this court that the appellant shall serve a sentence of 16 years and 11 months on each count, to run concurrently. He will serve the sentence from 1<sup>st</sup> March 2019, the date he was convicted and first sentenced by the High Court. - 22] Accordingly, this appeal has succeeded in part.

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**Dated** at **Kampala** this $\frac{23}{3}$ day of $\frac{39}{904}$ .................................... $\mathsf{S}$

**CHEBORION BARISHAKI JUSTICE OF APPEAL**

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15 **HELLEN OBURA JUSTICE OF APPEAL** $20$ $25$ $...$ EVA K. LUSWATA JUSTICE OF APPEAL