Nyesiga v Uganda (Criminal Appeal 275 of 2021) [2025] UGCA 110 (24 April 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

# [Coram: Chrlstopher Gashlrabake, Dr. Asa Mugenyl and John Mlke Musisi' JJAJ CRIMINAL APPEAL NO. 0275 0F 2021

[Appeal from the judgement of the High Court of Uganda at Kampala (Joyce Kavuma J.) in Criminal Case 615 of 2018 delivered on Sth November 20211

# NYESIGA JORAM : : : : : : : : : : : : : : : : : : : : : : r : r : : 3 : : : : : : 3 : : : : : : : : : : : APPELLANT VERSUS

UGANDA 3:3::3::::3:::::i:::::3\*:r:!:::::::::::3::::::::::::::::::::::::: RESPONDENT

#### JUDGMENT OF THE COURT

# 1. II{TRODUCTION

20 This is an appeal against the sentence of the appellant to 25 years of imprisonment for the offence of aggravated defilement contrary to Sections 129(3) and (a)(a) of the Penal Code by Joyce Kavuma J. The appellant allegedly defiled, a girl of 3 years.

## 2. BACKGROUND

30 On 21st April 2018, at around 11. O0 pm, in Nansana, the mother of Fatuma Nakito (the victim), one Namuju Mariam left her in the sitting room with the appellant who was watching television. When the mother came back to the sitting room, she noticed that the zip of the appellant's trouser was unzipped. She checked the victim's private parts and found that they had sperms. The victim revealed to the mother what the accused had done in her absence. The mother called the father, one Iddi Kibirige who made a complaint to the Police. The victim was examined and found to have bruises on her genital and the hymen had tears. The injuries were found to be caused by an erect penis.

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5 The appellant was charged with aggravated defilement. On a plea of guilty, the appellant was convicted of the offence of aggravated defilement. He was sentenced to 25 years of imprisonment.

## 3. GROUNDS OF APPEAL

The appellant was dissatisfied with the sentence and appealed on the following grounds.

- 1. The learned trial Judge erred in law and fact when she imposed on the appellant a harsh and manifestly excessive sentence leading to a miscarriage - ofjustice. - 2. The learned trial Judge erred in law and in fact when she failed to offset the period spent on remald thereby passing an illegal sentence occasioning a miscarriage of justice.

## 20 Representation

At the hearing on 2nd Aptrl 2025, the appellant was represented by Mr. Mohammad Mbalile on State brief while the respondent was represented by Mr. Joseph Kyomuhendo, Chief State Attorney, holding brief for Ms. Anna Kiiza,

25 Chief Senior State Attorney.

#### SUBMISSIONS OF PARTIES

30 Ground 1. The learned trlal Judge erred ln law and fact when she lmposed on the appellant a harsh and manlfestly excessive sentence leadlng to a mlscarrlage of Justice.

#### 4. COUNSEL FOR THE APPELLANT'S SUBMISSIONS.

35 On ground 1, the counsel for the appellant submitted that the trial Judge while sentencing the appellant failed to evaluate both the mitigating arrd aggravating 2lPage

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5 factors hence passing a harsh and excessive sentence. The counsel cited Kgalimpa Edulord u Uganda, Criminal Appeal No. l0 of 1995 where the Supreme Court referred to R u Hauiland, (1983) 5 Cr. App R(S) i09 where it was held that:

> "An appropriate sentence is a matter of the discretion of the sentencing judge. Each case presents its own facts upon which the judge exercises his discretion.

It is the practice that an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal and unless the sentence is illegal and unless court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice."

Counsel also cited Ahaikundiro Yustina u Uganda, Crimina-l Case No. 27 of 2OI5 where it was held that: 15

> "Before a convict can be sentenced, the trial court is obliged to exercise its discretion by considering meticulously all the mitigating factors and other presentencing requirements as eiucidated in the Constitution, statutes, Practice Directions together with general principles of sentencing."

The counsel for the appellant submitted that the trial Judge did not consider the mitigating factors vis-a vis the aggravating factors. The mitigating factors were that: the appellant was a first time offender he pleaded guilty and saved the court's time and resources. He was youthful and remorseful.

The counsel for the appellant further submitted that there is need to maintain consistency in sentencing convicts of similar offences committed in similar circumstances. He cited Paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions. The counsel cited Tiborulnnga Emmanuel u Uganda, Criminal Appeal No. 655 of 2Ol4 where the appellant was HIV positive which was considered as an aggravating factor. The

# 5. COUNSEL FORTHE RESPONDENT'S SUBMISSION

court imposed a sentence of 22 years of imprisonment

In reply, counsel for the respondent submitted that the appellant did not demonstrate how a sentence of 25 years of imprisonment is excessive in light of 3lPage

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- 5 the fact that the maximum sentence for aggravated defilement is death. Counsel submitted that for a sentence to be excessive it should be over and above the prescribed sentence. The counsel submitted that the trial Judge gave the respondent a lenient sentence. She considered that the victim was 3 years old. The appellant breached the trust the family of the victim had in him. Counsel - 10 submitted that sentencing is at the discretion of a trial Judge and an appellate court can only interfere with the sentence where in the exercise of its discretion, the court awards a sentence which is manifestly excessive or so low to amount to a miscarriage of justice or where the court ignores to consider an important matter or the sentence imposed is wrong in principle. See Kiutalabge Bernand u - 15 Uganda, Criminal Appeal No. 143 of 2001. The appellant aiso cited James s/o Yorom u R, (1950) 18 EACA 147 , where the Court of Appeal held that:

"lt may be that this court in trying the appellant it might have imposed a less sentence but that by itself is not a ground for interference and this court will not ordinarily interfere with the discretion exercised by the trial judge in the matter of sentence. Unless it is evident the that trial judge acted on some wrong principle or overlooked some wrong principle or overlooked some material factor.'

25 Counsel for the respondent cited the Constitution (Sentencing for the Court of Judicature) (Practice) Directions Legal Notice 8 of 2013. He submitted that Guideline 6(a) provides that every court shall when sentencing an offender take into account the gravity of the offence, including the degree of culpability of the offender. Guideline 35(d) and (i) point to the fact that the tender age of the victim and the offender's knowledge of the tender age of the victim are aggravating factors. Counsel submitted th.at rn Bgera Denis u Ugando, CACA 99 of 2072 tl:,e

victim was 3 years. The court reduced the sentence from 3O years to 20 years. ln Makuba Alimaks u Uganda, CACA 0384 of 2079 the victim was 4 and L/z years. The court upheld the sentence of 20 years. Counsel submitted that the sentence of 25 years will reduce to 21 years and 4 months when the period on remand is considered. 30

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## 5 6. DETERMINATION OF COURT

The appellant was convicted of the offence of aggravated defilement contrary to Sections 129(3) and (4)(a) ofthe Penal Code. Section 129 (3) and (4) provide that Any person tuho perforrns a sental oct u.tith onother person who is belou the oge

10 of eighteen years in any of the circumstances specified in subsection (4) commits a felong called aggrauated defilement and is, on conuiction bg the High Court, liable to suf[er death.

The appellant was aggrieved by the sentence of 25 years of imprisonment imposed on him. He submitted that it was harsh and excessive. \n Kiutalabge Bernard u Uganda SCCA 143 of 2001, it was held that it is trite law that the appellant court is not to interfere with the sentence imposed by a trial court which has exercised its discretion unless the discretion is such that it results in the sentence imposed being manifestly excessive or low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence is imposed on wrong principle. 15 20

30 The appellant has to show that the trial Judge did not exercise her discretion properly in arriving at a sentence. At the trial the counsel for the appellant stated the mitigating factors. The appellant was a first time offender. He saved the court's resources by not going through trial. The appellant was youthful and remorseful. He had been on remand for the iast 3 years and 6 months. The counsel stated that aggravating factors were that the offence of sexual assault is on the increase and the court should send a clear message. The appellant was employed in the house of the victim. He stated that it was traumatizing that the appellant would turn against a child of 3 years under his care by virtue of his employment. The appellant acted recklessly. He needs to act responsibly. The trial Judge stated that "l have considered mitigating and aggravating factors. Court will sentence you to 25 years less the period spent on remand." We do not think that it was necessary for the trial Judge to repeat the mitigating and 5lPage

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- 5 aggravating factors as they were already on the record of proceedings. The maximum sentence for aggravated defilement is death. Therefore, where a convict has been sentenced to 25 years one cannot say it is excessive. Where one has defiled a girl of 3 years and the mother states that there was repeated defilements a sentence of 25 years cannot be said to be harsh. The appellant has - not shown that the trial Judge did not exercise her discretion judiciously. We are satisfied that the sentence imposed by the trial Judge was not excessive and harsh. 10

GROUND 2 The learned trial Judge erred in law and ln fact when she falled to offset the perlod spent on remand thereby passlng an lllegal sentence occasloning a mlscarrlage of Justlce. 15

#### 7. COUNSEL FOR THE APPELLANT'S SUBMISSIONS

- On ground 2, the counsel for the appellant submitted that the trial Judge failed to make a deduction of the period spent on remand. The counsel cited Rtuabugande Moses u Uganda, Criminal Appeal 25 of 2Ol4 where the court stated 20 - "lt is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period form the final sentence. That period spent in lau'ful custody prior to the triai must be specifically credited to an accused." 25 - Counsel also cited Nashimolo Kibolo u Uganda Criminal Appeal No' 46 of 2017 where the Supreme Court held: 30

"After the court's decision in the Rwabuganda case this court and the courts below have to follow the position of the law as stated in Rwabugande. This is in accordance with the principle of precedent."

Counsel submitted that the trial Judge on sentencing the appellant stated: 35

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5 "l have considered mitigating and aggravating factors, court will sentence you to 25 years less the period spent on remand."

The counsel concluded that the trial Judge failed to offset the 3 years and 6 months spent on remand. Therefore, the sentence was illegal.

## 10 8. COUNSEL FOR THE RESPONDENT'S SUBMISSION

On ground 2, the counsel for the respondent submitted that the trial Judge considered the time the appellant spent on remand. Counsel submitted that the court stated "court will sentence you to 25 years less the period spent on remand." The counsel for the appellant computed it to be 21 years and 6 months. This was recorded by court. The respondent submitted that if the court was to find to the contrary it may exercise it powers under Section l1 ofthe Judicature Act and re-sentence the appellant to 21 years and 6 months.

## 20 9. DETERTUINATION OF COURT

The appeilant contended that the trial Judge did not when sentencing him consider the period he spent on remand. Article 23(8) of the Constitution of Uganda provides that

"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 completion of his or her trial shall be taken into account in imposing the term of imprisonment."

The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions also provide for subtracting of period in remand. Guideline 15 states 30

#### "15. Remand period to be taken lnto account.

- (1) The court sha,ll take into account any period spent on remand in determining an appropriate sentence. - (2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account."

ln Ruabugande u Uganda, SCCA 25 of 2Ol4 the court stated;

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- "lt is our view that the taking into account of the period spent on remand by a court is necessary arithmetical. This is because the period is known with certainty and precision, consideration of the remand period should therefore necessarily mean reducing as subtracting that period from the first sentence." 5 - 10 When sentencing the appellant, the trial Judge stated that "I have considered mitigating and aggravating factors. Court will sentence you to 25 years less the period spent on remand." The appellant is perturbed that the trial Judge did not clearly state that actual period he should serve after deducting the time spent on remand. The period the appellant spent on remand is known. It is 3 and % years. As the respondent properly calculated it, the sentence would be 21 years and 6 months from the date of sentencing. Therefore, in order to repeat it for 15 - clarity purposes, the appellant should serve 21 years and 6 months from the date of sentencing. In light of the above, this appeal is dismissed.

20 Dated at Kampala tfri"...#ry hr,J 2025

c ristopher Gashirabake

J ofAppeal

u n Asa

Justlce of Appeal

Jo Mike u

Justi e of Appeal