Mukundane v Uganda (Criminal Appeal 669 of 2014) [2023] UGCA 218 (15 August 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA

(Coram: Muzamiru M. Kibeedi, Christopher Gashirabake, & Eva K. Luswata, JJA)

### CRIMINAL APPEAL NO. 669 OF 2014

#### **BETWEEN**

**MUKUNDANE EDSON::::::::::::::::::::::::::::::::::::**

$\mathsf{S}$

### AND

**UGANDA :::::::::::::::::::::::::::::::::::**

#### [Appeal from the Judgment of the High Court sitting at Bushenyi in Criminal Session No. 0186 of 2011 by Hon. Justice Bashaija 20 K. Andrew delivered on $22^{nd}$ February, 2013

## JUDGMENT OF THE COURT

#### **Introduction** 25

- 1] The appellant was charged with the offence of aggravated defilement contrary to Section 129 $(3)$ and $(4)$ $(a)$ of the Penal Code Act. It was stated in the indictment that Mukundane Edson on the 22<sup>nd</sup> day of November 2010 at Ryakanyonyi village in the Bushenyi District performed a sexual act with AG, a girl under the age of fourteen years. - 2 The facts of the case as discerned from the record of Court are that on $22<sup>nd</sup>$ November 2014, the appellant found AG then aged four years, alone in the kitchen of her home. He removed her

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- <sup>5</sup> knicker and defiled her. He then promised to buy her bread. AG made an alarm which attracted her grandmother (PW2) . PW2 found the appellant lying on top of AG, with his trousers half way down his legs and AG's knicker also pulled down her legs and wet with semen. PW2 made an alarm which attracted her daughter in law to whom she narrated what the appellant had done. The appellant had by then jumped through the window and run away. PW2 and her daughter in law took AG to police and the appellant was arrested the same day. - <sup>15</sup> 3l The appellant was charged, tried and convicted. The trial Judge sentenced him to 25 years' imprisonment. The appellant being aggrieved with the decision of the High Court lodged an appeal premised on three grounds set out in the memorandum ol appeal as follows; - 20

- t. The leq.nted trial &tdge erred in laut and. Jact urhen he lmposed the sentence of 25 years' lmprisonrnent to the appellant rlu.hich utas harsh and nanifestlg excessioe occosloning d mlscarrtage of justice. - ti. The trial .htd.ge dld not consider the nltigatlng factors in this case and thus arrived at an unJust declslon. - ttt. The trtal ,.htd.ge eted. in laut uhen he falled to consld,er the period. the appellant had spent on retnand therebg rend.ering the sentence illegol.

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## 5 Representation

- 4] At the hearing of the appeal, the appellant was represented by Ms. Maclean Kemigisha on State brief, while the respondent was represented by Ms. Amina Akasa a State Attorney attached to the Chambers of the Director of Public Prosecutions. Both parties filed written submissions as their legal arguments as directed by Court before the hearing of the appeal. Those have been keenly considered when resolving this appeal. Ms. Kemigisha submitted on grounds one and two concurrently. We shall resolve this appeal in the same manner. - 15

## Ground one and two

- 20 25 5l Ms. Kemigisha appreciated the long time position that an appellate Court will not interfere with the discretion of the sentencing Judge unless the sentence is illegal or manifestly excessive as to occasion an injustice. She referred to the decision of Womusonze Wilson versus Uganda, CA Criminal Appeal No. 319 of 2O1O where after considering a rzrnge of cases, <sup>a</sup> sentence of 30 years for defilement was reduced to 12 years. She then submitted that the trial Judge should have considered the fact that the appellant was a first offender who showed remorse, as a mitigating factor to reduce his sentence. She also pointed to the fact that the victim did not contact any sexually transmitted disease as a result of the dehlement. - 30

6] Counsel in addition invited this Court to consider the years the appellant has spent on remand as sufhcient for him to reform so

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that given a second chance in life, he could still make a $\mathsf{S}$ meaningful contribution to society. In her view, the time the appellant had spent in prison would atone for his crime and that he should be released by this Court.

#### 10 **Respondent's submissions**

- [7] Ms. Akasa opposed both grounds one and two of the appeal. In her view, the decision to sentence the appellant to 25 years' imprisonment for aggravated defilement was correct both in law and in fact. She reasoned that the offence is grave and carries a maximum sentence of death. She in addition drew our attention to the Constitution (Sentencing Guidelines for Courts of **Judicature)** (Practice) Direction, 2013, hereinafter Sentencing Guidelines) Guideline 19, 3rd Schedule Part 1 which provides for a starting point of 35 years for aggravated defilement. Counsel noted that the sentence of 25 years is clearly too lenient in the circumstances of the case. - 8] Citing the decision of **Kato Kajubi versus Uganda, SC Criminal** Appeal No. 20 of 2014, respondent's counsel in addition agreed with her learned friend's submission that an appellate court is not to interfere with a sentence imposed by a trial court which has exercised its discretion, unless the exercise of the discretion is such that it results in the sentence imposed being manifestly excessive so as to amount to a miscarriage of justice. She agreed in addition that where a trial Court gives a sentence that is wrong in principle or, ignores to consider an important matter

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<sup>5</sup> which ought to have been considered while passing the sentence the appellant Court may interfere.

- 9l With regard to the facts of the case, Ms. Amina Akasa contended that the appellant who was at the material time aged 32 years, sexually assaulted a child of only four years under the guise of visiting the victim's home as a pastor to pray for the family. For those reasons, she considered the sentence ol 25 years' imprisonment as befitting. Counsel did not consider the appellant's plea of ignorance here and in the Court below as a mitigating factor because ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence. That in any case, the appellant who was fully aware of the victim's tender age, could not feign ignorance of that fact. In conclusion on this point, counsel considered all other facts raised in mitigation, as new facts being raised before this Court and thus untenable. - 10] With regard to the principle of consistency, Ms. Akasa cited several cases where this Court has upheld sentences of over 25 years' imprisonment for aggravated defilement. She cited for example the decision in Othieno John versus Uganda, CA Criminal Appeal No. 174 of 2O1O in which this Court upheld a sentence of 29 years' imprisonment for aggravated delilement for a victim aged 14 years by an appellant confirmed to be HIV positive. Also another decision of Kiiza Geoffrey versus Uganda, CA Criminal Appeal No. O76 of 2O1O in which this Court sentenced the appellant to 30 years' imprisonment for defiling a

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- girl aged 12 years. And lastly that of Twinamatsiko Peter $\mathsf{S}$ versus Uganda, CA Criminal Appeal No. 073 of 2010 in which this Court sentenced the appellant to 26 years' imprisonment for aggravated defilement of a girl aged 4 years. - $[11]$ In conclusion, counsel submitted that the sentence of 25 years' 10 imprisonment was neither excessive nor unjust but rather sufficient. She prayed that this court upholds the sentence.

## Analysis and decision of the Court

- 121 This Court is tasked to decide whether the learned trial Judge 15 erred in law and fact when he imposed a sentence of 25 years' imprisonment to the appellant which was harsh and manifestly excessive. Secondly whether in coming to that decision, the trial Judge failed to consider the mitigating factors, which was also an error in fact and in law. 20 - $[13]$ We have carefully studied the Court record, considered the submissions for either counsel, and the law and authorities cited therein. We are mindful that this is a first appeal to this Court and our intervention is governed by the provisions of **Rule 30(1)** $\mathbf{R}$ (a) of the Judicature (Court of Appeal Rules) Directions SI. 13-10 (herein after called COA Rule) which provides as follows;

"On any appeal from the decision of the High Court acting in the exercise of its original jurisdiction, the Nevis<br>Nevis court may-

# <sup>5</sup> a. Reappraise the euidence and draw inferences offact';

We are accordingly required to carefully and criticaily review the record of the High Court and re-appraise the evidence in order to make inferences of fact but without disregarding the decision of the High Court. See Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O of L997. Alive to the above-stated duty, we shall proceed to resolve the grounds of appeal as below;

141 Appellant's counsel has moved this Court to find the sentence of 25 years as manifestly harsh and excessive, and then reverse it. Both counsel have in their submissions agreed with the established principle that an appellate Court's powers to interfere with a decision arrived at with discretion are limited. For emphasis, we state that we can only interfere if the following are present: 15 20

1. The sentence is illegal.

2. The sentence is harsh or manifestiy excessive.

3. There has been failure to exercise discretion.

4. There was failure to take into account a material factor.

5. An error in principle was made

See: Livingstone Kakooza versus Uganda, SC Criminal Appeal No. 17 of 1993, Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2OL4; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No.

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# <sup>5</sup> 16 of 2OOO; and Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2OO1.

Further, the Court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See Ogalo S/O Owoura Vs Republic [1954] 24 EA CA 27O.

# 151 It is the appellant's case that the learned trial Judge sentenced him to a manifestly harsh and excessive sentence of 25 years' imprisonment and that the learned trial Judge failed to consider the mitigating factors which resulted into an unjust decision. Ms. Kemigisha contended that the appellant was a first offender, who committed the offence in ignorance. In addition, that during his stint on remand, he had reformed and the victim did not as a result of the defilement, contract a sexually transmitted disease. She contended that all the above ought to have been considered as mitigating factors. Respondent's counsel disagreed. She considered the sentence of 25 years' imprisonment just and lawlul in the circumstances.

25 30 a lenient sentence of two years. ....., />" 161 We have confirmed from the record that at the trial, the following was offered by the appellant's counsel in mitigation. It was stated that he was remorseful because immediately after the offence, he confessed to the pastor's wife. He had remained on remand since 2011 and was of deteriorating health. The appellant himself stated that he committed the offence in ignorance and prayed for

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$171$ Following the allocution proceedings, the learned trial Judge made the following sentencing ruling. He stated that:

> "Aggravated defilement is a serious offence and *rampant judging by the number of cases in this session* alone which is about 50 % of the total cases. It needs to be dealt with severely and stiff sentences should be *meted out not only to punish the offenders but to deter* other would be offenders. The convict committed an offence and violated the innocence of a baby by sexually defiling her. A person who goes for babies needs to be kept out of society so that there can be some safety for a girl child. The convict is not remorseful. He maintained stubbornness through the trial even when he had made a confession to Police. I have taken into account all these factors, but the over becoming on is the age of the victim. Accordingly, the convict is sentenced to $(25)$ twenty-five *imprisonment.*"(sic)

$18$ We note that in his ruling the Judge made no reference to the 25 mitigating factors which would be an error according to Section 108 TIA, mitigation is a matter of statute. Further, **Guideline 36** of the Sentencing Guidelines sets out all the possible mitigating factors that Courts may consider during sentencing for the offence of aggravated defilement. The absence of a criminal record, remorse 30 and any other factor fall under that category.

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- <sup>5</sup> 19] In regard to the sentence being harsh and manifestly excessive, there is always need for Court to maintain consistency or uniformity in exercising its sentencing discretion although crimes are not identical or committed under exactly the same circumstances. We are guided by Paragraph 19 of the Guidelines which directs us to the sentencing range specified in Part I of the Third schedule. In that schedule, the sentencing range for aggravated defilement after considering both the aggravating and mitigating factors is 30 years to death as the maximum sentence. Previous decisions on the same offence will also be useful. 10 15 - 2Ol In Lwanyaga Joseph versus Uganda, CA Criminal Appeal No. 535 of 2OLG the appellant was indicted lor aggravated defilement. He had dehled a 7-year-old child. This Court sentenced the appellant to 22 years' imprisonment after deducting the period spent on remand.

- 2ll In Ocheing Michael versus Uganda, Criminal Appeal No. 62O of 2014 the appellant was indicted for aggravated defilement. The victim of 9 years old. This Court upheld a sentence of 25 years' imprisonment that had been imposed upon the appellant by the trial Court. 25 - 221 In Senoga versus Uganda, Criminal Appeal No. O74 of 2O1O (unreported), the appellant was indicted for aggravated defilement. The victim was his niece a girl of 10 years. This Court 30

r,#r:\* upheld a sentence of 30 year's imprisonment that the High Court had imposed for aggravated defilement.

- 231 The circumstances of this case are that the appellant defiled AG a 4-year-old child and that he had gone to AG's home pretending to be a pastor and would help them to pray. We indeed agree with the trial Judge that aggravated defilement is a serious offence and rampant. It needs to be dealt with severely and that stiff sentences should be meted out not only to punish the offenders but to deter other would-be offenders. We therefore find that the sentence of 25 years'imprisonment was not harsh and manifestly excessive in the circumstances as alleged by counsel for the appellant. - 241 We hnd no merit in ground one of the appeal - 251 In regard to failure to consider the mitigating factors. Section 129(3) of the Penal Code Act provides that the maximum sentence for the offence of aggravated defilement is death. If the trial Judge sentenced the appellant to a sentence less than the death sentence, there must have been reasons why he decided to sentence him to 25 years' imprisonment. However, the parties are entitled to know the reasons for the decision and it is our opinion that the trial Judge has an obligation to set down those reasons for deciding on a particular sentence especially in the trial of a serious offence such as aggravated defilement. Our hndings are lortified by the decision in Aharikundira Yustina versus Uganda, SC Criminal Appeal No. 27 of 2015

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(unreported) where the Supreme Court found fault with this court and the trial court for failing to take into account the mitigating factors that were advanced in favour of the appellant at the trial. It was stated in part that;

"before a conuict can be sentenced, the trial court is obliged to exercise i/s discretion bg considering meticulouslg all the mitigating factors and other presentencing requirements as elucidated in the Constitution, Statutes, Practice Directions together utith general principles of sentencing as guided bg case laut.

- 26) In our view, the trial Judge in his sentencing ruling appeared to have given much attention to the aggravating factors and totally ignored the mitigating factors. He did not record the reasons why he was persuaded to convict the appellant to 25 years of imprisonment. We have observed from the record of Court that the appellant mitigated his sentence before the trial Judge. However, when giving his decision, the trial Judge did not weigh the mitigating factors against the aggravating factors. He only referred to the aggravating factors. The mitigating factors included the fact that the convict was a first offender, remorseful immediately after the offence when he confessed to the Pastor's wife, the convict's health is degenerating, he has been on remand since 2011 and that he committed the offence in ignorance. - 271 We have observed that appellant's counsel has introduced new mitigating factors that were never pleaded at the trial which include the fact that no sexually transmitted disease was 30

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<sup>5</sup> contracted by the victim. We note that failure to include these during sentencing cannot be blamed on the trial Judge as they were never raised at allocution and this Court cannot be seen relying on the same lor purposes of concluding this appeal. Secondly, ignorance cannot be used as a mitigating factor in Section 6 ofthe Penal Code Act provides that;

"ignorance of the law does not afford any excuse for any act or omission uthich u.tould othenpise constitute an offence unless Knouledge of the law bg the offender is expresslg declared to be an element of the offence."

Therefore, one cannot defend their illegal actions by arguing that they did not know the actions were illegal or that AG was a minor. We consequently find that raising ignorance in mitigation does not suffice as the appellant is expected to know that a child of 4 years does not have the consenting mind to perform a sexual act and therefore him raising ignorance in mitigation is deceptive.

281 In conclusion, we agree with counsel for the appellant that the trial Judge failed to consider the mitigating factors raised by the appellant at the trial. We are however of the view that failure to consider the mitigating factors did not occasion any miscarriage of justice as seen from the sentence of 25 years that we have already found not to be excessive in the circumstances. 25 30

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## s Ground three Apoellants submissions

- 291 Ms. Kemigisha submitted that the trial Judge did not consider the time the appellant spent on remand and contended that failure to consider this period rendered the sentence passed illegal and contravened Article 23(8) of the Constitution. She cited the case of Abelle Asuman versus Uganda, SC Criminal Appeal No. 66 of 2OL6 where the Supreme Court held that considering the period spent on remand was necessary but without necessarily applying a mathematical formula. 10 - 3Ol In conclusion, counsel invited this Court to find that the sentence was illegal and that it should be set aside. She lurther prayed that this Honorable Court invokes Section 11 of the Judicature Act Cap 13 and in its discretion, impose an appropriate sentence in the circumstance which would at least have been 1O years after taking into account the mitigating factors.

## 2s Respondents submissions

311 In response, Ms. Amina Akasa conceded with counsel for the appellant that the trial Judge did not consider the time the appellant had spent on remand before passing a sentence of 25 years' imprisonment as required by both Article 23 (8) of the Constitution and the case of Kizito Senkula versus Uganda, SCCA No. 17 of 2O1O wherein Court held that; -..-2......-

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<sup>5</sup> "as u)e understand the prouision of Article 28 (3) of the Constitution means that uthen a trial Court imposes a term of imprisonment as sentence on a conuicted person, theg should take into account the peiod which the person spent on remand pior to his or her conuiction...."

- 321 Counsel went on to submit that the appellant was on remand for about 2 years and 2 months before he was convicted and prayed that this Honourable Court deducts the said period from 25 years and sentence the appellanl to 22 years and 10 months' imprisonment. - 331 In conclusion, counsel prayed that this Honourable Court upholds the sentence of 25 years with consideration of the time spent on remand.

## Analysis and decision of Court

- 25 341 The gist of this case is that the trial Judge failed to consider the period the appellant spent on remand at the time of imposing the sentence. - 351 It is the appellant's case that the trial Judge did not consider the period the appellant spent on remand while sentencing which she relerred to as an illegal sentence. The respondent conceded that it is indeed true the trial Judge did not consider the period spent on remand and prayed that the period of 2 years and <sup>2</sup>

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- months be deducted from the sentence of 25 years' imprisonment that had been imposed. - 361 Article 23(8) of the Constitution of the Republic of Uganda, 1995 is the guiding law in addressing the question when considering the period spent on remand by a convict at the time of sentencing by any Court. Article 23(8f provides that;

" uhere a person is conuicted and sentenced to a term of impisonment for an offence, ang peiod he or she spends in lauful 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."

37]1 The Supreme Court in Byamukama Herbert versus Uganda, SC Criminal Appeal No. 21 of 2OL7 cited with approval Abelle Asuman versus Uganda, Criminal Appeal No. 66 of 2OL6, Court held that;

> "this Court has preuiously guided that a sentence arriued at without taking into consideration the peiod spent on remand is illegal for failure to complg utith mandatory constitutional prouisions. "

38] The requirement of deducting the period spent on remand is couched in mandatory terms, any Court that passes a sentence without considering the time spent on remand renders the sentence illegal because it offends the provisions of the Constitution.

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- 391 We have had the beneht of perusing the record of appeal and found that the trial Judge while sentencing the appellant did not consider the period the appellant spent on remand. We have noted that counsel for the respondent conceded to the fact that the trial Judge did not consider the period the appellant spent on remand. We shall therefore not labour the point further. - 15 401 In our view, the omission of the trial Judge to consider the period the appellant spent on remand offended the Constitution and thus rendered the sentence illegal. We hereby set it aside. We now invoke the provisions of Section 11 of the Judicature Act, which grants this Court the same powers as the trial Court to impose a sentence on the appellant. - 20 25 411 We have found in our earlier analysis that the sentence that was imposed on the appellant was not excessive as alleged but was consistent with previous sentences issued in similar circumstances. Secondly, we have found that in his sentence, the trial Judge did not consider the mitigating factors. We however noted that this did not occasion a miscarriage of justice. He only considered the aggravating factors and lastly we have found that the trial Judge omitted to consider the period spent on remand in sentencing the appellant. - 30 421 The aggravating factors that were advanced at trial were that the accused is a first offender but aggravated defilement is very serious offence. The victim was a baby of four years, and a wide

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- <sup>5</sup> difference in age between convict and victim. This is a girl child who is vulnerable and needs protection. She is traumatized due to being introduced to sex at a tender age. The girl child cannot be free because of such convicts. We live in fear of such convicts. The appellant pretended to be a Pastor and invaded the privacy of a girl. Counsel prayed for a serious signal to other would-be offenders. He prayed for 30-40 years and compensation for the psychological harm caused to the child. On the other hand, the mitigating factors that were advanced were that the convict was remorseful immediately after the offence when he confessed to the Pastor's wife, the convict's health is deteriorating, the convict has been on remand since 2011, he committed the offence in ignorance and prayed that he be sentenced to two years. - 431 Thus, taking into account the gravity of the offence, after weighing the aggravating and mitigating factors that have been identihed and similar decided cases, we maintain the sentence of 25 years' imprisonment as we did not find it excessive in the circumstances. 20 - 441 In addition, we are enjoined under Article 23 (8) of the Constitution to take into account the period of two years and 2 months the appellant spent on remand, which we therefore deduct from the 25 years' imprisonment. As a result, we sentence the appellant to 22 years and 1O months' imprisonment to be served with effect from the date of his conviction on 22"d February,2013. 25 30

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451 Consequently, this appeal is partially allowed.

Dated \q at Mbarara this day of Eog9.s:. \/\,tt(,^ MUZAMIRU M. KIBEEDI JUSTICE OF APPEAL 2023. 10 20 25 CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL EVA K. SWATA 1

JUSTICE OF APPEAL