Mulyowa v Uganda (Criminal Appeal No. 43 of 2012) [2022] UGCA 235 (16 September 2022)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 043 OF 2012

#### MULYOWA JOHN::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA::::::::::::::: **:::::::::::::::::::::::::::::::RESPONDENT**

(Appeal from the decision of the High Court of Uganda at Nakawa before Mwondha, J. (as she then was) delivered on 24<sup>th</sup> February, 2012 in Criminal Session Case No. 017 of $2011)$

#### HON. LADY JUSTICE ELIZABETH MUSOKE, JA CORAM: HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. LADY JUSTICE EVA K. LUSWATA, JA

#### JUDGMENT OF THE COURT

On 24<sup>th</sup> February, 2012 the High Court (Mwondha, J (as she then was)) convicted the appellant, following his own plea of guilty, of the offence of Aggravated Defilement contrary to Section 129 (3) and (4) (a) and (c) of the Penal Code Act, Cap. 120. On the same day, the High Court sentenced the appellant to 15 years imprisonment.

The appellant was taken to the High Court for trial on an indictment that alleged that he had, in the month of September, 2009, at Kings Foundation School in Bugabo Village, Katabi Sub-County in Wakiso District had unlawful sexual intercourse with (N. E, a minor) a girl under the age of 18 years. The victim was aged 13 years.

The facts of the case, as read by the prosecution and accepted by the appellant, are briefly as follows. The victim lived in Bugabo Village in Wakiso District and attended Kings Foundation School, located in the same village. The appellant was a teacher at the said school and taught the victim's class. In the month of September, 2009, the appellant started seducing the victim to cause her to have sexual intercourse with him. One evening, he asked the victim to go back to the school and have sexual intercourse with him, and the victim did so. The victim found the appellant waiting for her at the school

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and removed her knickers and had sexual intercourse with her. Thereafter, the appellant told the victim not to tell anyone about the incident.

In the month of November, 2009, several other pupils at the school made allegations that the appellant had seduced them into having sexual intercourse with them, and investigations were made into the allegations. The investigations confirmed the allegations and revealed that the victim was one of the school girls the appellant had had sexual intercourse with. The appellant was subsequently arrested and charged with aggravated defilement of the victim. On the basis of the appellant's acceptance of these facts, the High Court convicted him as charged and sentenced him as mentioned earlier.

Being dissatisfied with the sentence imposed by the High Court, the appellant, with leave of this Court, now appeals to this Court on the following grounds:

- $"1.$ That the learned trial Judge erred in law and fact when she passed a sentence of 15 years' imprisonment upon the appellant which is manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice. - That the learned trial Judge erred in law and fact when she $\overline{2}$ . sentenced the appellant to 15 years' imprisonment without making an arithmetic deduction of the 2 years spent on remand."

The respondent opposes the appeal.

#### **Representation**

At the hearing, Mr. Kenneth Ssebabi, learned counsel, represented the appellant on State Brief. Ms. Nabaasa Caroline, learned Principal Assistant Director Public Prosecutions, represented the respondent. The appellant followed the hearing via Zoom Video Technology, while he remained at the prison facility where he was incarcerated.

The Court, at the hearing, adopted written submissions filed in support of the respective cases for either side, and those submissions have been considered in this judgment.

## Appellant's submissions

Counsel for the appellant argued the grounds of appeal in ascending order.

## Ground 1

Counsel submitted that the sentence that the trial Court imposed on the appellant was harsh and manifestly excessive in the circumstances of the case. He referred to the authority of Kyalimpa vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1995 (unreported) for the proposition that an appellate Court can set aside a sentence passed by the trial Court if the sentence is harsh and manifestly excessive in the circumstances of the case. Counsel contended that the sentence of 15 years imprisonment, in addition to the 2 years the appellant had already spent on remand at the time of sentencing, was harsh and excessive. Furthermore, that the sentence was harsh and excessive considering that the appellant had been repentant and had pleaded guilty and not wasted Court's time. In addition, counsel submitted that the trial Court leant too heavily on punishing the appellant and ignored the aspect of rehabilitating him when it sentenced the appellant to serve 15 years imprisonment, yet he was already serving an earlier sentence of 13 years imprisonment. Counsel submitted that a sentence of 10 years imprisonment was sufficient for the appellant to reform and become a better citizen.

Counsel prayed that this Court sets aside the sentence imposed by the trial Court for being harsh and excessive and substitutes a shorter sentence.

# Ground 2

Counsel submitted that the sentence imposed on the appellant was illegal as it was imposed without the trial Court complying with the provisions of Article 23 (8) of the 1995 Constitution which enjoins a trial Court to take into account any period spent by an accused person on remand. Counsel referred to the authority of Rwabugande vs. Uganda, Supreme Court Criminal Appeal No. 25 of 2014 (unreported) for the proposition that taking into account for purposes of Article 23 (8) of the 1995 Constitution requires ascertaining the exact period an accused person spent on remand and thereafter reducing or subtracting that period from the final sentence.

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Counsel also referred to the authority of Nashimolo vs. Uganda, Supreme Court Criminal Appeal No. 46 of 2OL7 (unreported) which stressed the principles in the Rwabugande case, Counsel acknowledged that the Rwabugande and Nashimolo cases (supra) were both decided after the decision of the trial Court in the present case, but he submitted that this Court should follow the principles in those cases and find that the learned trial Judge erred by failing to deduct the remand period of 2 years from the sentence she imposed on the appellant.

### Respondent's submissions

Counsel for the respondent argued the grounds of appeal in the same manner as her counterpart for the appellant had done.

# Ground 1

Counsel submitted that the sentence imposed on the appellant was appropriate and was neither harsh nor manifestly excessive in the circumstances of the case. The appellant was a teacher to the victim. He was also a serial offender having been found to have defiled several other pupils at the school he taught, thereby destroying their future. According to counsel, the appellant's conduct deserved a more severe deterrent sentence than that of 15 years imprisonment imposed by the trial Court.

As for the appellant's contentlon that the trial Court should have prioritized rehabilitation and not deterrence when sentencing him, counsel submitted that this contention was devoid of merit. Counsel submitted that the appellant deserved to be punished for going on a rampage and defiling young pupils placed under his care. Further, counsel submitted that the appellant pleaded guilty after the prosecution had lined up 3 witnesses against him and after he had earlier been convicted of defiling another pupil, and thus to counsel, the appellant's plea of guilty did not indicate that he had reformed, It was further the submission of counsel that the aggravating factors outweighed the mitigating factors and justified the sentence of <sup>15</sup> years that was imposed. Counsel stressed that, as held in the case of Ssekawooya vs. Uganda, Coult of Appeal Criminal Appeal No. 107 of 2009 quoting from Kiwatabye vs. Uganda, Supreme Couft Criminal

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Appeal No. 143 of 2OO1 (both unrepofted), an appellate Court can only interfere wlth the exercise of discretion by a trial Court to impose a particular sentence in limited circumstances, such as where the trial Court acted on a wrong principle or overlooked some material factor or where the sentence imposed was harsh and manifestly excessive. She submitted that in the present case, the learned trial Judge passed a lawful sentence which is lenient considering the offence of which the appellant was convicted, and urged this Couft to uphold the sentence.

## Ground 2

Counsel submitted that the trial Court complied with the provisions of Afticle 23 (8) of the 1995 Constitution, as it considered the period of 2 years that the appellant had spent on remand. She pointed out that at the time, taking into account did not require an arithmetic exercise, all that was required was for the trial Court to demonstrate that it was alive to the period the accused person had spent on remand. Counsel further pointed out that the requirement for an arithmetic exercise was articulated in the Rwabugande case (supra) which was decided in March 2017, 5 years after the trial Court had sentenced the appellant and therefore the authority we not binding on the trial Court as it had not been decided at the time of the trial. Counsel further referred to the Nashimolo case (supra) where the Supreme Court stated that the Rwabugande guidance was only applicable to cases decided after that case was decided. Counsel submitted that this Couft cannot apply the Rwabugande guidance retrospectively, as counsel for the appellant wants it to do. Counsel concluded by submitting that the trlal Court properly considered the period the appellant had spent on remand under the applicable law at the time, and passed a lawful sentence.

### Resolution of the Appeal

We have carefully studied the record, and considered the submissions of counsel for either side, and the law and authorities cited. Other relevant law and authorities not cited have also been considered. We shall begin by observing that this is a flrst appeal from a decision of the High Court, and it

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is now well-settled that when handling such appeals, this Court will reappraise all the materials on record and come up with its own conclusions on all issues raised. This duty derives from Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions S. I 13-10; and principles articulated in authorities such as Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997 (unreported).

We also note that this appeal is against sentence only, and therefore, we are mindful that this Court on appeal does not interfere with the sentence imposed by the trial Court unless existence of exceptional circumstances justify it to do so. The principles in this regard were usefully summarized in the authority of Rwabugande vs. Uganda, Supreme Court Criminal Appeal No. 25 of 2014 (unreported), where the Court stated:

"In Kyalimpa Edward vs. Uganda; Supreme Court Criminal Appeal No.10 of 1995, the principles upon which an appellate court should interfere with a sentence were considered. The Supreme Court referred to R vs. Haviland (1983) 5 Cr. App. R(s) 109 and held that:

An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing 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: Ogalo s/o Owoura vs. R (1954) 21 E. A. C. A 126 and R vs. Mohamedali Jamal (1948) 15 E. A. C. A 126. (Emphasis ours)

We are also guided by another decision of this court, Kamya Johnson Wavamuno vs. Uganda Criminal Appeal No.16 of 2000 in which it was stated:

It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently. (Emphasis Ours)

In Kiwalabye vs. Uganda, Supreme Court Criminal Appeal N0.143 of 2001 it was held:

The appellate couft is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentences unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence."

Counsel for the appellant argued that exceptional circumstances exist to justify this Court to interfere with the sentence imposed on the appellant, namely; 1) that the sentence imposed on the appellant was illegal; 2) that the sentence imposed on the appellant was manifestly harsh and excessive.

As regards illegality of sentence, counsel for the appellant submitted that the sentence imposed by the learned trial Judge offended the provisions of Afticle 23 (8) of the 1995 Constitution because she failed to properly take into account the period the appellant spent on remand in accordance with the principles articulated in the Rwabugande case (supra). Article 23 (8) provides as follows:

## "(8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in Iawful 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.,,

In Rwabugande, the Supreme Court held that taking into account of the remand period for purposes of Article 23 (8) of 1995 constitution requires a trial Court to ascertain the remand period and thereafter arithmetically deduct it from any sentence it will have deemed appropriate and imposed on the convict, and that sentences passed without following that formula are illegal for having been passed in contravention of the highlighted provision. However, it will be noted that the judgment in Rwabugande was rendered in March, 2017, meaning that the principles therein apply only to cases decided subsequent to the judgment. (See: Nashimolo vs. Uganda, Supreme Court No. 46 of 2OL7 (unrepofted)). It therefore follows that decisions rendered before Rwabugande cannot be overturned solely on grounds that they did not follow Rwabugande principles, as at the time the law was different, The challenged decision of the learned trial Judge, in the present case, was rendered on 24th February, 2OlZ, at least 5 years before Rwabugande. We therefore accept the submission of counsel for the

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respondent that the learned trial Judge could not have been expected to follow Rwabugande before the principles therein even came into existence. We only wish to add, for avoidance of doubt, that the prevailing interpretation of Article 23 (8), at the time of the trial Court's decision, was that given in Kizito Senkula vs. Uganda, Criminal Appeal No. 24 of **2001 (unreported)**, where the Supreme Court stated as follows:

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

In the present case, the learned trial Judge demonstrated that she was mindful of the period that the appellant spent on remand. She commented, while sentencing the appellant, that he had been in prison for over 2 years without trial. This clearly showed that she had complied with the Kizito Senkula guidance. We accordingly find that the sentence imposed by the learned trial Judge was legal.

Counsel for the appellant also urged this Court to interfere with the sentence imposed on the appellant on grounds that it was harsh and manifestly excessive. It was not suggested for the appellant that the learned trial Judge did not consider the mitigating factors advanced for him. The contention of counsel for the appellant is that trial Court prioritized the punitive aspect of sentencing over rehabilitation. The learned trial Judge, while sentencing the appellant, stated as follows:

"The convict was convicted on a similar offence in this very session. The offence he was convicted of is very rampant. Since he decided to plead guilty on this indictment he is remorseful and his (sic) capable of reform. He has been in Prison for over 2 years without trial and his right to a fair and speedy trial was infringed upon. Taking into account all the above he is sentenced to 15 years imprisonment."

It is clear from the above passage that the learned trial Judge considered the rehabilitation aspect of sentencing, contrary to the assertions of counsel for the appellant. We also wish to note that a sentence is arrived at after a trial Court has assessed various factors including; the level of harm caused

by the commission of the offence, the convict's degree of culpability, as well as any aggravating and mitigating factors. Basing on the aforementioned factors, the trial Court may consider which aspect of retribution, punishment, deterrence is most fitting in the circumstances of the case. We have considered all the relevant circumstances, and we do not believe that the learned trial Judge gave a sentence that prioritized the punitive over the rehabilitation aspect of sentencing as counsel for the appellant submitted. That contention must fail. Moreover, the learned trial Judge commented that the appellant had been convicted a similar offence during the same session. which means that the appellant was not a first offender. We find that the sentence imposed on the appellant was appropriate.

For the reasons given hereinabove, grounds 1 and 2 of the appeal must fail. Accordingly, we find no merit in the appeal and we dismiss it.

#### We so order.

Dated at Kampala this $\frac{16}{6}$ day of $\frac{16}{6}$ 2022.

# Elizabeth Musoke

Justice of Appeal

### **Christopher Gashirabake**

Justice of Appeal

Eva K. Luswata Justice of Appeal