Mugweri v Uganda (Criminal Appeal 133 of 2019) [2024] UGCA 305 (25 October 2024)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

## CRIMINAL APPEAL NO. 133 OF 2019

(Aising out of Tororo High Court Criminal Session Case No. 93 of 2016)

[Coram: Egonda-Ntende, Gashirabake, Kihika, JJA]

## MUGWERI JAFARI APPELLANT

### VERSUS

### UGANDA RESPONDENT

## JUDGMENT OF COURT

## Introduction

The appellant was convicted by the High Court on 26th October 2018 of aggravated defilement contrar5z to section L29 (3) (4) (b) of the Penal Code Act. He was sentenced to 25 years'imprisonment on his own plea of guilty. He filed this appeal, with leave of this court, against sentence only.

## Background

The facts of the case are that prior to the incident, the appellant was well known to the victim as a neighbor and someone who had on 20 severa-l occasions given her money as an inducement to have sexual intercourse with him. On the sth day of January 2015, the appellant went ahead and invited the victim to his room. Indeed, after supper,

the victim tricked her mother that she was feeling stomachache and needed to go to the latrine. Immediately she moved out, she found the appellant waiting and they moved to his room. While in his room, the appellant performed a sexual act with the victim. The following

- 5 morning, the appellant gave the victim 2OO0 shillings and advised her to go for breakfast at the nearby restaurant. While at the restaurant, a friend to the victim's mother saw her and decided to take her home since she knew about the victim's disappearance. On reaching home, her mother put her to task to explain where she had spent the night and she informed the mother that she had slept in 10 - the appellant's room and that he had performed a sexual act with her. The appellant was a-rrested and subsequently charged and convicted.

## Representation

At the hearing of the appeal, Mr. Muhammad Mba-lile, on state brief appeared for the appellant, while Mr. Ojok Alex Michael Assisted DPP appeared for the respondent 15

## Counsel's submissions

Counsel for the appellant submitted that the sentence of 25 years' imprisonment was manifestly harsh in the circumstances of this case. Counsel contended that had the learned trial Judge fully considered the mitigating circumstances in this case and the fact that the appellant was convicted on his own plea of guilty, he would not have come to such a harsh sentence. That the sentencing order of the learned tria-l Judge relied more on the aggravating factors as 20 25

laid out by the State Attorney especially on the fact that the appellant waited for the prosecution to prove its case and entered a plea of guilty.

5 In reply, counsel for the State submitted that the appellant has misled court by stating that he was sentenced to 25 years' imprisonment and yet he was sentenced to 21 years, 2 months and 18 days'imprisonment. Counsel argued that the learned trial Judge considered all the mitigating and aggravating factors of the case and passed an appropriate sentence that was consistent with the sentencing regime to ensure consistency with cases of similar facts. 10

## Analysis

For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that the sentence is illegal, or is harsh or manifestly excessive, or that there has been failure to exercise discretion. That there was failure to take into account a material factor and or ar error in principle was made. See Kiwalabye Bernard Vs. Uganda, Supreme Court Criminal Appeal No. 143 of 2OO1 where the Supreme Court held as follows; 15

"the appellate court is not to interfere with the sentence imposed by the trial court which has exercised its discretion on sentence unless the exercise ofthe discretion is such that it results in the sentence imposed to be manifestly eircessive 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 20

# ought to be considered while passing the sentence or where the sentence imposed is wrong in principle."

We shall bear in mind the above principles while resolving this appeal.

5 It is the appellant's claim that the sentence passed by the trial Court was harsh and excessive considering the fact that the appellant pleaded guilty to the offence.

The appellant claims to have been sentenced to 25 years' imprisonment while the respondent states that the appellant was sentenced to 21 years'2 months'and 18 days'imprisonment.

We will start by setting out a portion of the sentencing notes of the learned trial judge below that gives rise to the ground of appeal.

'In this case, I haue taken into account the fact that the conuict has pleaded guiltg, as one of the factors mitigating his sentence. Houteuer,

it has come late on a dag fixed for heaing the defence case and not at the earliest opportunitg, I will not grant the conuict the traditional discount of one third A/ 3)-(ten gears) but only a si-xth (l/ 6)-(fiue years), hence reduce it to twentg fiue years. 15

I haue considered further the submissions made in mitigation of sentence and in his Allocuhts. In accordance with Article 23 (8) of the Constitution and Regulation 15 (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, to the effect that the court should deduct the peiod spent on remand from the sentence considered appropriate, afier allfactors haue beentaken 20

into account. I note that the conuict has been in custodg since 13th January 2015. I herebg take into account and set off 3 gears and nine months and 13 days as the peiod the conuict has alreadg spent on remand. I therefore sentence the conuict to a term of impisonment of

5 21 gears and two months and 13 dags, to be serued starting todag.'

It is evident from the foregoing that at this stage the learned trial judge considered only 2 mitigating factors though he states that he has considered the submissions made in mitigation of the sentence. Firstly, he considered the guilty plea, late as it was, and credited the appellant with 5 years deducting the same from his starting point of 30 years imprisonment. Next, he considered the period spent on remand and arrived at the final sentence of 21 years, 2 months and 13 days'imprisonment.

The other mitigating factors in this case were not considered. Firstly, they were not specihcally mentioned. It is only by mentioning expressly factors that have been considered that a reviewing court or any interested party would be able to understand what was taken into account or what was not taken into account in arriving at a particular sentence. 15

The only mitigating factors considered were stated to be the late guilty plea and period spent on remand. There is no demonstration in the sentencing notes of the judge that at any stage of the sentencing process he considered the mitigating factors that the appellant was a hrst offender and that he was a youthful adult at 21 years of age when he committed the offence. 20

Where a trial court fails to take any factor into account which it ought to take into account this would trigger interference with the sentence by the appellate court. The Supreme Court in Llulngstone Kqkooza v Uganda [1994] UGSC I7 stated in part,

- <sup>5</sup> 'An appellate court wlll onlg olter a sentence lmposed bg thc trlql coutt tf lt ls evldent lt actcd. on a urong prlnclple or ouerlooked. somc matetlql factor, or { tlrc sentence is manlfestlg excesslue ln uleut of the clrcttmstqnces of tle case. Sentences tmposed ln prevlous ccses of slmllar no,fr.tre, la.hlle - not belng precedents, do afford materlalfor conslderatlon: See Ogalo s/o Ouwa a R (7954) 27 EACA 27O' 10

Had the learned trial judge considered the twin factors that the appellant was a first offender with no previous record and that he was a youthful offender, 21 years old at the time of commission of the offence, with the capacity'to reform and be a useful member of his society the learned trial judge would have arrived at a lesser

sentence than the one meted out to the appellant.

In line with established authority, and in agreement, with learned counsel for the appellant, we find that the learned trial judge, erred in law when he failed to consider all the mitigating factors available to the appellant and thereby arrived at a sentence that was harsh and manifestly excessive in the circumstances of this case. This occasioned a miscarriage of justice, and as such we set aside the sentence.

Exercising the powers granted to this Court by Section 11 of the Judicature Act, we hereby re-sentence the appellant to a term of 15 years' imprisonment from which is deducted the period of 3 years and 9 months spent on remand. The appellant is therefore to serve the sentence of 11 years and 3 months' imprisonment from the 26th

of October 2018, the date of conviction.

This appeal therefore succeeds.

We so order.

J Signed and dated this al-a') day of o zo24

Fredrick Egonda-Ntende

Justice ofAppeal

Christopher Gashirabake

Justice ofAppeal

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