Mutashobya v Uganda (Criminal Appeal 50 of 2017) [2024] UGCA 168 (17 July 2024)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MASAKA

(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)

## CRIMINAL APPEAL NO. COA-00-CR-CN-0050- 2017

MUTASHOBYA ANODI ::::::::::::::::::: **::::::::::::::APPELLANT**

#### **VERSUS**

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

[Appeal from the sentence arising from the decision of the High Court of Uganda at Masaka (Hon. Justice Dr. Flavian Zeija) dated 3<sup>rd</sup> November 2016 in Criminal Session Case No. 114 of 20161

## **JUDGMENT OF THE COURT**

#### **Introduction**

11 The Appellant was, on his own plea of guilty, convicted of the offence of Aggravated defilement contrary to Section 129(3)(4)(a) and (b) of the Penal Code Act and sentenced to 20 years' imprisonment.

#### **Background Facts**

$21$ At the time of commission of the offence, the victim was 5 years old while the appellant was 18 years and living in the same homestead with the victim as a Shamba boy of the victim's parents. On the 16<sup>th</sup> of March 2016, at around 2.00 p.m. the victim's mother was seeking for the whereabouts of the appellant when she met the appellant and the victim exiting a nearby coffee plantation, while the victim was crying. Upon meeting the victim in a distressed mood, the mother checked the victim's private parts and found the victim was not putting on her knickers and blood trickled out of her. The victim disclosed that it is the

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appellant who removed her knickers and inserted his penis into her vagina while in the coffee plantation.

- The mother of the victim solicited the assistance of persons nearby to arrest the appellant $3$ and handed him over to the police station. The appellant admitted having defiled the victim but stated that his penis could not enter the vagina as it was tinny. A charge and caution statement was recorded. On examination of the appellant, he was found to be in a good mental state. The victim was found to be 5 years and her hymen was inflamed but intact and also bleeding from her private parts. - The Appellant was subsequently indicted and on his own plea of guilty convicted and $4]$ sentenced as above. - The appellant was dissatisfied with the sentence only and, with leave of court, lodged an 51 appeal before this Court

## **Grounds of appeal**

- In the Memorandum of Appeal filed in court on 01<sup>st</sup> July, 2024, the appellant erroneously set 6] forth two grounds of appeal, namely: - $i)$ The trial Judge erred in law and in fact in sentencing the appellant to 43 (sic!) years' imprisonment which was a manifestly, harsh and excessive sentence in the circumstances thereby occasioning a miscarriage of justice. - The trial Judge erred in law and in fact in sentencing the appellant to 20 years' ii) imprisonment without considering the period spend on remand thereby rendering the sentence illegal. - However, in the appellant's written submissions, the grounds of Appeal were stated thus: $7]$ - $i$ The trial Judge erred in law and in fact in sentencing the appellant to 20 years' imprisonment which was a manifestly harsh and excessive sentence in the

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circumstances of the case and [without] considering the mitigating factors thereby occasioning a miscarriage of justice.

- The trial Judge erred in law and in fact in sentencing the appellant to 20 years' ii) imprisonment without considering the period spend on remand thereby rendering the sentence illegal - 81 In the interest of justice, we shall consider the grounds as set out in the Written submissions.

#### **Representation**

- 9] At the hearing of the appeal, Mr. Innocent Kaliba, learned Counsel, appeared for the Appellant on State brief; while Mr. Simon Peter Semalemba, learned Assistant Director of Public Prosecutions (DPP), appeared for the Respondent. The Appellant was present in court. - $101$ The parties, with leave of the Court, relied on their written submissions as their legal arguments in support of their respective cases. As such, the resolution of the appeal is based on the written submissions.

#### Determination of the appeal

- $11]$ We have considered the submissions of both parties and reviewed the Record of Appeal. In our view, ground two is sufficient to dispose of this appeal. - $12]$ From the appellant's submissions on ground two, the trial Judge is faulted for failing to take into account the remand period by arithmetically deducting the 8 months spent by the appellant on remand in accordance with the Supreme Court decision in the case of **Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014** - 13] The respondent conceded that the trial Judge did not specifically take into account the period spent by the appellant on remand.

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The learned trial Judge's sentencing record stated thus: $[14]$

> "This was a child of 5 years. The convict put her through a lot of pain. I sentence him to 20 years in prison. The period of remand shall be taken into consideration' Sgd. Dr. FlaviaZeija Judge 3.11.2016" (Emphasis added)

- $15]$ The wording of the trial Judge to the effect that "I sentence [the convict] to 20 years in prison. The period of remand shall be taken into consideration" does not meet the constitutional requirement set out in Article 23(8) of the Constitution for court to take into account the remand period when sentencing a convict. In Kabwiso Issa Vs Uganda, Supreme Court Criminal Appeal No.7 of 2002, the Supreme Court considered the sentencing order where the trial Judge in sentencing the appellant stated "....he is sentenced to 15 years imprisonment. The period he has been on remand shall be taken into account against the whole sentence." - The Supreme Court found the sentence to be illega in that it contravened Article 23(8) of the $16]$ Constitution. In allowing the appeal the Supreme Court stated thus:

"This court has on a number of occasions construed [Article 23(8) of the Constitution] to mean in effect that the period which an accused person spends in lawful custody before completion of the trial should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. In the appeal before us it is not clear how the period from 9/12/95 to 29/09/2000 (5 years) spent on remand 'will be taken into account against the whole sentence' of 15 years. It appears the judge meant that the sentence commenced from 9/12/1995. This would be absurd because a trial court cannot sentence a person before conviction."

We thank the Respondent's counsel for taking the professional decision to concede. We $17$ accordingly uphold ground two of the appeal and find that the sentence complained about was illegal. This ground alone is sufficient to dispose of the appeal. The sentence of the trial court is hereby set aside. We shall now proceed to sentence the Appellant afresh pursuant

to **Section 11** of the **Judicature Act** which provides as follows:

Wash

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#### *'11. Court of Appeal to have powers of the court of original jurisdiction.*

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'

- In our exercise of the above mandate, we consider the following mitigating factors: the 18] appellant was a first offender, pleaded guilty, appeared repentant and a young man of the approximate age of 18 years at the time of commission of the offence. He is, as such capable of reform. This court also considers the aggravating factors being: the age of the victim at the time of commission of the offence of 5 years; the appellant was living in the same homestead with the victim's family; sexual offences being rampant in the area; and the gravity of the offence whose maximum sentence is death. This court also considered the trauma suffered by the victim and loss of her innocence at such an early age at the behest of the appellant. - 191 We have also considered some of the decided cases of this court and the Supreme Court in similar matters. In **Moses Hoke alias Champion Vs Uganda, Court of Appeal Criminal Appeal No. 107 of 2019**, the sentence of 22 years and 6 months' imprisonment was upheld by this court. The victim was a girl aged 5 years. - $20]$ In Kabagambe Yoweri vs Uganda Court of Appeal Criminal Appeal No. 659 Of 2015. the appellant, who was 20 years old while the victim was 11 years, pleaded guilty of aggravated defilement and on appeal this Court did not interfere with the sentence of 22 years' imprisonment that was imposed by the trial court. - $21$ In Nshemeire Denis Vs Uganda, Court of Appeal Criminal Appeal No. 131 of 2014 this **court** (Egonda-Ntende, Catherine Bamugemereire and Christopher Madrama, JJA) found the sentence of 18 years' imprisonment to be appropriate in the circumstances. The appellant in the said appeal was 30 years at the time he defiled the child aged 5 years.


- In Abale Muzamil Vs Uganda, Court of Appeal Criminal Appeal No.0039 of 2014, this $22]$ court confirmed a sentence of 19 years' imprisonment for the offence of aggravated defilement. In that case, a neighbour defiled the victim who was aged 9 years at the time of the offence. - $23]$ We find that the sentence of 20 years' imprisonment term meets the ends of justice in the circumstances of this case. From that sentence, we deduct the 8 months the appellant spent in pre-trial remand and order that he shall serve a period of 19 years and 4 months in prison starting from 3<sup>rd</sup> November 2016, the date of his conviction.

#### $24]$ **Disposition**

- 1. The appeal against sentence is allowed. - 2. The sentence imposed by the High Court against the appellant for the offence of aggravated defilement is hereby set aside. - 3. The appellant shall serve a term of 19 years and 4 months' imprisonment commencing from the $3<sup>rd</sup>$ November 2016, the date of conviction.

## We so order.

Delivered at Masaka and dated this 17<sup>th</sup> day of July 2024.

EN OBURA **Justice of Appeal MUZAMIRU MUTANGULA KIBEEDI**

**Justice of Appeal**


# **MOSES KAWUMI KAZIBWE Justice of Appeal**

Max

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