Masaba v Uganda (Criminal Appeal 182 of 2012) [2025] UGCA 74 (11 March 2025)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Mulyagonja, Tibulya & Kazibwe Kawumi, JJAJ

## CRIMINAL APPEAL NO. OI82 OF 2OI2

MASABA FRANCIS ... OAPPELLANT

#### VERSUS

UGANDA .. RESPONDENT

(An appeal arising fro\* the decision of the High Court of Uganda at Mbale in Criminal Case No. 014 of 201I before P. K Mugamba, J dated 26h June, 2012)

## JUDGMENT OF THE COURT.

l. This is an appeal against sentence only. The appellant was indicted with the offence of aggravated defilement contrary to sections 129 (3) and (a) (a) of the Penal Code Act. The particulars of the offence were that on 3rd of June 2010 at Mafutu Village, Bungokho Sub county in Mbale District, the appellant performed a sexual act on W. M a girl aged 9 years.

### Background.

\.

i

2. The facts of this appeal as accepted by the learned trial Judge are that on the 3'd June 2010, Pwl (Nambuya Nuru) who was a stepmother of the victim and Pw2 (Nakhubitsa) (Pwl's sister) went to the garden to harvest beans. The 9 year-old victim accompanied them but they left her behind at a distance. At some stage, on Pw2's advice Pwl called out for the victim, but there was no response from her. After Pwl had called out for her more than once, the victim appeared while crying and trembling. She was holding sugarcane.

3. Pwl asked the victim what the problem was. The victim responded that some one had done "bad mqnners " to her. Pwl asked her what she meant but the victim started crying. The victim again told them that someone had done bad manners. She led Pwl and Pw2 to the part of the garden where she had been and pointed to the appellant who was digging nearby as the person who had done bad manners to her.

/

- 4. Pwl asked the appellant what he had done to the victim. The appellant attempted to run away but she threatened to raise an alarm. Those who were nearby heard what she said. They went to where she was with the appellant and she informed them about what the victim had told her. - 5. Those people said that the appellant had done the same thing to another child. The appellant was subsequently arrested and taken to Bungokho Police Post where he was detained. The victim was medically examined and found to have been sexually assaulted. - 6. The appellant was eventually convicted of the offence. He was sentenced to 25 years' imprisonment. Dissatisfied with the sentence, he appealed to this court on the following grounds: - i. That the learned trial judge erred in law and fact when he passed an illegal sentence of 25 years without considering the period spent on remand. - ii. That the learned trial Judge erred in law and fact when he passed a manifestly harsh and excessive sentence of 25 years against the appellant contrary to the principle of consistency in sentencing.

#### Representation.

7. At the hearing, the appellant was represented by Miss Faith Luchivya while the respondent was represented by Mr. Simon Peter Ssemalemba, Assistant DPP.

### Submissions by Counsel.

- 8. Regarding ground one it was submitted for the appellant that the learned judge failed to deduct the remand period while sentencing him. This, it was argued contravened Article 23(8) of the Constitution. In support of this argument, counsel cited Walimbwa v Uganda 120241 UGCA 134, in which this court stated that failure to deduct the remand period as required by Article 23(8) of the Constitution rendered the sentence illegal. - 9. Regarding the second ground, counsel submitted that the sentence of 25 years was harsh and excessive considering precedents of sentences which were issued in similar cases. Counsel cited Draluku v Uganda 120241UGCA 324, in which this court opined that one of the principles of sentencing is that sentences must be consistent and that the sentencing range in similar cases of aggravated defilement was l5 years to 17 years imprisinment. - lO. Counsel cited Rugarwana Fred v Uganda SCCA No. 39 of 1995 in which a l5-year sentence for aggravated defilement of a 5-year-old victim was upheld. Counsel also cited Ninsiima v Uganda 120141UGCA in which this court set aside a sentence of 30 years imprisonment and substituted it with that of l5 year's imprisonment. The court referenced the Supreme Court case of Kizito Senkula v Uganda, CA No.24 of 2001, in which a sentence of l5 years' imprisonment for aggravated defilement of an I l-year-old girl was upheld.

- I l. Counsel therefore prayed that this court invokes its powers under section 1 I of the Judicature Act and sentences the appellant to an appropriate sentence. - l2. The respondent opposed the appeal and asked the court to uphold the sentence. It was contended that the learned judge cannot be faulted for not abiding by the requirement that the remand period must be arithmetically deducted frorn the would be sentence. Counsel pointed out that the appellant was sentenced on 26th June 2012 before the Rwabugande principle of 3'd March 2017 was laid. - 13. The Respondent further argued that the sentence of 25 years is neither harsh nor excessive in the circumstances. Senyange Yuda v Uganda CACA No. 080 of 2020 was cited to support this argument. In Senyange, (supra) this court found a sentenc e of 29 years appropriate for defilement of a 9 year old girl. This court also upheld a sentence of 25 years for defilement of a 9-year girl in Musabuli Sedu v Uganda CACA No. I I of 2011. Counsel therefore asked court to uphold the sentence.

### Consideration of the appeal.

l4.lt is trite law that an appellate court cannot interfere with the sentencing discretion ofthe trial court unless the trial court acted on some wrong principle or that it overlooked some rnaterial facts or imposed a sentence that is manifestly high or low so as to cause a miscarriage ofjustice. See: Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001. the court held: -

> "The appellate court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence

imposed to be manifestly excessive or so low as to amount to <sup>a</sup> miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle.o'

- 15. One of the appeilant's complaints in this appeal is that the learned trial Judge erred in law and fact when he sentenced him to 25 years' imprisonment, a sentence deemed to be illegal for failure to deduct the remand period. The Appellant also complains that the sentence was harsh and excessive in the circumstances. - 16. In sentencing the appellant, the learned judge stated as follows: -

"I have heard what has been stated regarding sentence from the bar as well as the convict. The act of defiling a promising 9-yearold child is beastly to say the least. Someone like him should be kept away from the public for as long as possible. I have taken into account the period he has been on remand which I deduct from the sentence I would intend to have handed down to him. He is sentenced to25 years'imprisonment." (see page 150 of the record of appeal)

17. Article 23(8) of the Constitution 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."

l8. The import of Article 23(8) of the Constitution is that the taking into account of the remand period is a constitutional requirement.

l9.ln this case however, the statement by the learned judge that"l have taken into account the period he has been on remand which I deduct from the sentence I would intend to have handed down to him " indicates that the trial judge was alive to his duty under Article 23(8) of the Constitution to consider the appellants remand period while sentencing him.

(

,

20.|n Kizito Senkula v Uganda, SCCA No. 24 of 2001 (unreported), the court held that:

"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 on remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise."

- 21. Based on the foregoing, we find that the Judge fully complied with Article 23(8) of the Constitution, which was the law at the time. - 22. About the alleged failure by the judge to arithmetically deduct the period which the appellant had stayed on remand from the sentence, we established from the Iower court record that he was sentenced on 26tl' June 2012. This was before the requirement for the arithmetical deduction of the remand period, which was established in Rwabugande Moses v Uganda SCCA No. 24 of 2014 became law. Rwabugande Moses was decided on 3"1 March 2017 . The complaint that the learned judge did not arithmetically deduct the remand period is therefore without basis and is rejected.

## 23. The first ground of appeal therefore fails.

24. Regarding the second ground of appeal, we do not accept the submission that the sentence of 25 years' imprisonment for aggravated defilement is manifestly harsh and excessive in the circumstances, as argued by the appellant. We do not agree that the sentence is inconsistent with sentences issued in cases which were committed under similar circumstances.

t

- 25.|n Mugisha Demiriyani Vs Uganda, Criminal Appeal No. 161/2014, this Court upheld a sentence of 30 years' imprisonment for aggravated defilement of a girl aged l0 years. - 26.\n Okello Basil Mugenyi Vs Uganda, Criminal Appeal No. 29412017, this court upheld a sentence of 32 years for aggravated defilement of a l2-yearold girl. - 27.\n Bashir Burahuri Vs Uganda, Crimila Appeal No.02512015, this court upheld a sentence of 40 years for aggravated defilement of a l2-year-old victim. - 28. Based on the foregoing, we find that the sentence of 25 years' imprisonment which was imposed on the appellant in this case is neither harsh nor excessive. There is therefore no reason for our interfering with it. The second ground of appellant must fail as well. - 29. Conclusively, we find no merit in the appeal, and it is dismissed. The sentence of 25 years imprisonment is upheld.

v Dated at Mbale this lt .day of .2025

t aaaa aoa aaaaoaaaaaoaaaoaoaao

a

Irene Mulyagonja Justice of Appeal

A\

Tibulya Justice of Appeal

Moses Kazibwe Kawumi Justice of Appeal