Ogwang v Uganda (Criminal Appeal No. 127 of 2017) [2023] UGCA 109 (24 March 2023)

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA CRIMINAL APPEAL NO. 0127 OF 2017 Coram: Obura, Bamugemereire & Madrama JA)

MOSES OGWANG :::::::::::::::::::::::::::::::::::: $\mathsf{S}$

#### **VERSUS**

## UGANDA:::::::::::::::::::::::::::::::::::

(Appeal from the decision of Suzan Okalany J, in High Court Criminal Session Case No. .206 of 201 dated 1/8/2018 at Mbale)

Criminal Law $-\text{Aggravated Defilement C/s }129(3)$ , (4) of The Penal Code Act-10 Alibi - Harsh and Excessive Sentence. Evidence Law: Corroboration; unsworn evidence of children of tender years Identification; whether evidence of minors is sufficient for identification.

#### JUDGMENT OF THE COURT 15

#### Introduction

The facts of the case are that the Appellant Moses Ogwang was charged with the offence of Aggravated Defilement contrary to section 129(3) and (4) of the Penal Code Act. He was convicted and sentenced

to 15 years and 9 months' imprisonment. The reason for this appeal was 20 that the appellant was dissatisfied with both the conviction and sentence.

#### Background

- The facts in this case as ascertained from the record of the lower court 25 are that on 10<sup>th</sup> September 2014 at Bison "B" western Division in Tororo District the appellant entered the victim's house and performed a sexual act on NS a girl aged 8 years. It is alleged that when NS was asleep, the appellant inserted his finger into her vagina, which - resulted into injuries that led to vaginal bleeding. 30

The appellant denied the charge and in his defence, raised an alibi. The trial Judge sided with the prosecution's evidence and convicted the appellant and sentenced him to a term of 15 years and 9 month's imprisonment after deducting the period spent on remand of 3 years

- and 9 months. The appellant being aggrieved with the conviction of $\mathsf{S}$ the High Court, lodged an appeal to this court premised on the following grounds. - 1. The Learned Trial Judge erred in law and fact when she convicted the appellant based on the uncorroborated unsworn evidence of children of tender years. - 2. The Learned Trial Judge erred in law and fact when she disregarded the defence of alibi put by the appellant. - 3. The Learned Trial Judge erred in law and fact when she passed a manifestly harsh and excessive sentence of 19 years to the appellant.

#### Representation

At the hearing, the appellant was in court, and he was represented by Geoffrey Nappa while the respondent was represented by Senior Asst.

DPP Sam Oola. Counsel relied on written submissions that were 20 adopted by this court.

#### Appellant's Submissions

Counsel for the appellant made submissions on all 3 grounds separately. On the 1<sup>st</sup> ground, counsel faulted the Learned Trial Judge 25 relying on uncorroborated the evidence of PW3 and PW4, children of tender years in proving the appellant's participation in the offence. He relied on the authority of Ssenyondo Vinan v Uganda CACA No. 267 of 2002 where this court emphasized the need to be cautious on

$10$

$\overline{2}$

convictions based solely on the unsworn evidence of a single identifying witness of tender years. Counsel contended that the corroboration in the Judgement was in relation to the sexual act and not the participation of the appellant which was an issue in the case.

- Counsel averred that the conviction of the appellant was wrongfully $\mathsf{S}$ reached. On the 2<sup>nd</sup> ground, Counsel was critical of the Learned Trial Judge for not considering the alibi put up by the appellant that he was with PW5, the victim's father on the fateful day, yet PW5 did not dispute alibi in question. Counsel also submitted that the - identification evidence that the Learned Trial Judge relied on was not $10$ sufficient to enable positive identification. On Ground No.3, Counsel disagreed with the sentence of the Learned Trial Judge. He argued that the trial Judge passed a total of 19 years of imprisonment against the appellant. In his view the sentence did not take into consideration the

appellants mitigating factors and the time spent on remand. 15

#### **Respondent's Submission**

Counsel for the respondent opposed the appeal and approached all grounds separately. On the 1st ground, counsel contended that the evidence of PW3 and PW4 was sufficiently corroborated by the 20 evidence of PW5 and PW6. Counsel averred that the conditions of identification which enabled a positive identification included proper lighting, long duration, familiarity, and proximity. On Ground No.2, Counsel contended that the appellant's alibi was considered by the

Learned Trial Judge. She correctly rejected it on the ground that it had 25 been discredited by the prosecution evidence. On ground 3, counsel contended that the appellant got a lesser sentence in comparison to other cases of a similar nature. Counsel contended that at the very least, thc scntcncc is appropriate and should be left undisrurbed Counscl praycd thar thc appcal should fail.

#### Cons ideration by Court

5 Wc havc carcfully studicd thc court rccord' considered the submissions for cithcr sidc, and the lalv and authorities cited therein' <sup>A</sup>first appcal from a dccision of thc High Court rcquircs this Court to rcvicw the cvidencc and makc its ou'n infcrenccs of lar'l'and fact See: Rule 30 (f) (r) of the Judicature (Court of Appeal Rules) Directions S.ll3- 10. 10

Wc do agrcc with and follorv thc dccision of the Supreme Court in Kifamunte Hen ryvUsanda SCCA No. l0 of 1997, u'hcrc it rvas hcld that on a first appcal, an appcllant is cntitlcd to this court's review the cvidrncc oIthc casc and to rcconsidcr thc matcrials bcfore the Learned

TrialJudgc. Thc appcllatc court must thcn makc up its orvn mind not disrcgarding thc judgcmcnt appcalcd from but carcfully weighing and considcring it. 15

Alivc to thc abovc-statcd duty, wc shall procccd to resolve this appcal onc ground irt a timc.

#### Ground No.l

The Learned Trial Judge errcd in law and fact when she convicted the appellant based on the uncorroborated unsworn evidence o[ the children of tender years.

Counscl for thc appcllant submitted that thc Learned Trial Judge for convicting thc appcllant bascd on thc uncorroborated unsworn cvidcncc of P\V3 and PW4, childrcn of ttnder years. Hou'evcr'

counsel for the respondent contends that the evidence of PW3 and PW4 was corroborated by PW5 and PW6 whom they informed what the appellant had done to PW3.

It is trite that no conviction of an accused can be based on evidence $\mathsf{S}$ which in law requires corroboration. The law regarding evidence of a child of tender years is provided for in section 40(3) of the Trial On Indictments Act which stipulates as follows:-

"Where in any proceedings any child of tender years called as a witness does not, in the opinion of the court, understand the $10$ nature of an oath, his or her evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth; but where evidence admitted by virtue of this sub section is 15 given on behalf of the prosecution, the accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating him or her."

- On the issue of corroboration of the evidence of PW3 and PW4, we 20 have perceived from testimony on the record that PW5 and PW6 corroborated the evidence of PW3 and PW4 respectively. It was the testimony of PW6 that PW3 informed her that Moses (appellant) pushed his fingers into her genitals and injured her. - It is the law that where the victim or witnesses report the offence 25 committed to a person of authority in a timely manner, the evidence

of such a wirncss is regarded as corroborativc cvidcncc. Scction 156 of the Evldence Act providcs that;

"in order to corroboratc thc tcstimony o[ a witncss, irny ft-rrmcr statcmcnt madc by such ir r','itncss rclating to rhc samc fact, at or about the timc whcn thc fact took plircc, or hcforc authority lcgally compctcnt to invcstigatc, thc fact may bc provcd."

It was the testimony of PW4 (lsaac) that whcn his fathcr (PW5) returned, hc contemporaneously reported what hc had sccn. Hc told PW5 that Moses (the appcllant) had comc to thcir housc rvith thc intention to rape Sophia Nambozo. PW5 tcstificd that PW4 had informed him that when Moses Ogwang, camc to thc homc' hc lay on the bed between rhc two childrcn, fondlcd Sophia Nambozo and inserted his fingers in her vagina. Whcn Isaac protcstcd that hc was assaulting Sophia. Hc then got up and left. 10

In vierv of thc abovc tcstimony and pro'r'isions of thc lau', rvc can safcly concludc rhat by contcmPorancously rcporting thc appcllant's offending, the cvidcnce of PWI and PW4 u'as corroboratcd by thc evidence of PW5 their fathcr and PW6, thcir mothcr. 15

The appellant was placed at thc sccnc of thc crimc by thc tu'o children, PWI and PW4. 20

PW3 and PW4 tcsrificd to having idcntificd thc assailant. Whilc dealing with identification cvidcncc, \ /c arc awarc of thc ncccssity to subject such prool to cxhaustivc scrutiny. Thc Suprcmc Court in Bogere Moses {g Anor v Usanda SCCA No.l of 1997 citcd n'ith 25 approval, thc casc of Abdalla Nabulere [s anor v Uganda SCCA No. 9 of 1978 r,r,herc it rvas hcld that,

"Thc rcason for thc spccial caution is that thcrc is a possibility that a mistakcn rvitncss can bc a convincing onc, and thtlt cvcn a numbcr of such witncsscs cau all bc mistirkcn. Thc Judgc should thcn cxaminc closcly thc circumstanccs in which thc ide ntification camc to bc madc particularly the length of time, the distance, the light, the familiarity of the witness with the accused. AII thcsc factors go to thc quality of thc idcntificarion cvidcncc. If thc quality is good thc dangcr of mistakcn idcntity is rcduccd but thc poorcr rhc quality thc grcarcr rhc dangcr...

When the quality is good, as for cxamplc, whcn thc identification is madc after a long pcriod of obscrvation or in satisfactory conditions by a person who kncw thc accuscd before, a Court can safcly convict cvcn though thcrc is no othcr evidence to support the identification cvidcncc, providcd thc Court adequately warns itself o[ thc spccial nccd for caution."

We note the lower court conducted voi direhcarings on both PW3 and PW4 and ruled as follows:

#### COURT

Having examined Kiganga Isaac as rcquircd under s.40 (3) of the TIA I find as follou,s: 20

I. ...is possessed of sufficicnt intelligcnce to justify thc reception of his evidence.

2. ...understands thc duty of spcaking thc truth.

3. ...does not appreciate the narurc of thc oath. Therefore...evidencc should be takcn not on oath

PWI and PW4 arc said to havc givcn cvidcncc, not on oath and counsel for thc appcllant did not cross-cxaminc thcm. Wc horvcvcr note u,ith concern that thc appcllant u,as allorvcd to cross-cx.rminc 30

them and PW3, who had shown signs of trauma throughout her testimony, was cross-examined by the appellant whom he accuses of sexually molesting her by inserting his fingers into her vagina and breaking her virginity by serrating or partially rapturing her hymen and bruising her fourchette.

A trial court must always caution itself before depending solely on the unsworn evidence of children of tender years. More importantly where children of tender years are also the eye witnesses, the court must exhaustively review their evidence to ensure that it meets the required standard. In Bogere Moses & anor v Uganda SCCA No. 1

$\mathsf{S}$

of 1997 the approach to be taken in dealing with evidence of identification by eyewitnesses in criminal cases was laid down. The Supreme Court held that,

- "The starting point is that the court ought to satisfy itself from the evidence whether conditions under which the 15 identification is claimed to have been were or were not difficult, and to warn itself of the possibility of mistaken identity. The court then should proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is 20 ruled out. In so doing the court must consider the evidence as a whole, namely the evidence of any factors favouring correct identification together with those rendering it difficult". - In this case we note that the Learned Trial Judge then cautioned 25 herself before relying on the evidence of children of tender years; PW3 and PW4. In her judgment, the Learned Trial Judge considered the

fact that both rvitnesses kntrv thc appcllant as their fathcr's fricnd u,ho rcgularly visitcd thcm at homc, thc fact that the appellant spcnt somc time in the room cating thc lcftovcr food that PW5 had left, thcrc n,as candlelight burning, evcn rvhcn thc candlc \^tas Put off, thcrc rvas

- 5 bright moon light coming frcrm outsidc through the door that thc assailant had left open. Shc also considcrcd thc fact that u'hcn thc appcllant joined the witncsscs on thcir bcd, PW4 sat up on thc bcd watching how he attackcd PW3 which conduct he describcd in court, that r,r,hcn PW4 alarmcd. thc assailant rvcnt and stood at thc dooru'ay - looking at the witncsscs. Thcrc rvas bright moonlight coming in and thc u,itnesscs had anothcr opportunity to rccognize him further at thc point. 10

This court has followcd closcly thc dccisions of thc suprcme court and its own dccisions. In Ntabala Frcd v Ucanda SCCA 34 of 2015 thc suprcmc court held tha! conscqucntly, a conviction can bc solcly bascd on the testimony of thc victim as ar singlc witness, providcd thc court finds her to bc truthful and rcliablc. As stated by this court in Sewanvana Livinsstone v Usanda SCCA No. 19 of 2006) "rr'hrrt matters is the quality and not quantiry of evidcnce." 15

- From thc above, rve agpce with thc Lcarned Trial Judge that from thc conditions highlighted in thc Judgcmcnt, the conditions rvcrc favourable to enable PW3 and PW4 to idcnrify the appellant. Considcring the fact thac chcrc was light from the 'tadoba' and rhc moon light and most importantly PW3 and PW4 werc familiar with 20 - thc appcllant as he was a fricnd to thcir fathcr and often l'isitcd thcir homc. We noted earlier that thc contcmporaneous rePorting of thc childrcn met the threshold of s.156 of thc Evidence Acr. We thercforc find that thls ground fails as it h:rs no merit. ?5

#### Ground No.2

# The Learned Trial Judge erred in law and fact when she disregarded the defence of alibi Put by the appellant'

Thc appcllant contcndcd that thc Lcarncd TrialJudge disrcgarded his dcfcncc of alibi on thc basis that his dcfcnct rvas contradictcd by the cvidcncc of PW5. Thc Lcarned TrialJudgc observcd in hcr.ludgcmcnt as follows;

"... the accused's statemcnt in his det'encc that hc was wirh PW5 in Bison trading centre thc whole eveningwas contradictedby PW5 who tcsti.fied in cross exdmination that he indeed met with the accused at Bison trading centrewhich is about 250 meters t'rom rhchome of PW5 and thcy cxchanged 8r-cctings and partcd ways since PW5 u'as going to buy .food t'or thc t'ollowing day. Thc rrial ludge t'ound PW 5 ro bc honesr and belicvcd him in the circumstance s o.f the case because he admittcd the t'acts that he had met with thc accuscd that cvcning." 10 15

Onc of thc u,ays of disproving an alibi is ro invcstigatc its gcnuincness as was statcd in thc casc of Androa Asenua {s Anor v Usanda SCCA

20 No I of 1998 r,vhcrc thc Suprcme Court of Uganda ciccd r,l'ith rpproval thc authority of <sup>R</sup>v Sukha Sinsh S/O Wazir Sinsh and Ors 1939 (6 EACA) 145 where thc Court of Appcal for East Africa obscn'cd that:-

> "lf a person is accuscd of anything and his defcncc is an alibi' he should bring fonl'ard the alibi as soon as he can bccirusc, firstly' if he docs not bring it forward unril months aftcru'ards thcrc is na[urally a doubt as to whether he has not bccn preparing it in the interval, and sccondly, if he brings it forward at thc c2lrlicst possiblc momcnt it will givc prosecution an opportunity of inquiring into that alibi and if they arc satisfied as to its gcnuineness proceedings will bc stoppcd."

Wc have observed rhat thc Lcarned Trial Judgc's o'aluation of evidcnce in respect Eo corroboration relatcd mostly on identification of the victim who had put up a defence of Alibi. We agrec entirely wlth 1o the findings of the Learned Trial Judge that thc victim's evidencc on identification was corroborated and as such the dlibi put up by thc appellant could not stand.

In additlon to the above, wc note from thc rccord that thc appellant and PW5 met on the night the offencc was committed, this does not cxoneratc the appellant in anyway. During his examination in chief, thc .rppcUant tcsrificd rhllt.

"... during the commission of the alleged oft'ence,I was with the t'ather of the alleged victim. I moved with him up to home... What 1 know is that during the commission of the alleged ot'fence ,I waswith the complaindnt in Bison tradingCentre fromB:00

20 pm to 9:30 pm. W elet't thc tradingCcntre together dnd took the samc direction sincc we are neighbour s..."

Howevcr, PW5 on rhc other hand testificd that,

"he .f ound thc accused in the tradingcentre where they grceted each other like t'riends and parted w ay. He went to shop t'ood and that hc did not hnow wherc the acosed 25 wcnt..."

Thc o,idcncc of thc rppcllant was contradictcd by that of PW5 rvho rcstificd that hc indccd hc siru,thc appcllant on his rvay to market but rhcy partcd n,irys and did not kno'w, wherc thc appellant tvcnt thcrcaftcr. Thc dcfcncc of thc appcllant docs not rulc out the fact that

- 5 hc may havc bricfly bccn u,ith the fathcr of thc victim and thcrcafter callously procccdcd to his homc and committed the offencc of dcfilcmcnt. His othcr dcfcnccs such as sharing or fighting ovcr girlfricnds u,irh thc fathcr of thc victim bccome a side-shou' mcant to mislcad thc court. Thc o'idcncc of identification by PW3 and PW4 - vvas found to bc positivc idcntification. The trvo sufficiently placcd thc appcllant at thc sccnc of crimc. Hc lay bctu,ecn thc tr,vo childrcn as hc carcsscd PWl. Thc tlvo r.vitnesscs put him righr at the centrc of this crimc. Wepukhulu Nvuneuli v SCCA No. 2l of 2001 the court rccognizcd that in scxual offcnccs, thc victim s o'idence is thc bcst 10 - proof of idcntification of thc accuscd. Givcn the totality of thc cvidcncc adduccd lvc find that thc 1-rial Judgr: was corrcct in disbclicving thc dcfcncc of alibi put up by thc appcllant. The childrcn put thc appcllant squirrcly rrt thc sccnc of crimc. Wc thereforc find no rcason ro intcrfcrc u,ith thc dccision of thc lcarncd trial Courr. 15 - 20 Ground No.2 of appcal fails for lack of mcrit

## Ground No.3

## The Lcarncd Trial Judge erred in law and fact when she passed a manifestly harsh and excessive sentence of <sup>19</sup> years to thc appellant.

Thc Appcllant challcngcd thc sentence of 19 year's imprisonmcnt in this ground as he found it harsh and manifestly excessive. He prayed that thc scntcncc bc sct asidc and substiruted "l,ith an appropriate scntcncc. Bcforc wc look carefully into the law regarding sentencing, wc would likc to corrcct thc imprcssion creatcd by the appellant. He was not scn[cnccd to imPrisonmcnt for ]9 years. Rathcr he was imprisoncd for 15 ycars and 9 months.

Thc Iaw rcgarding to whcn an Appcllatc court may intcrfcrc with thc scntencing powcrs of a trial court is wcll cstablished in the case of

- s Kvalimpa Edward v Usanda SCCA No. l0 of 1995, u'hcrc thc court considcrcd thc principlcs upon u'hich an appcllatc court should intcrfcrc n ith a scntcncc. Ctrurt rcfcrrccl to R v Haviland l98l <sup>5</sup>Cr. Anrr. R(s) I09 irnd hcld thirt - 10 "an appropriatc scntcncc is a mattcr for thc discrction of rhc scntcncing Judgc. Each casc prcscnts its orvn facts upon rvhich <sup>a</sup>judgr: cxcrciscd his discrction. It is thc Practice that as an appcllatc court will not normally intcrfcrc r,r'ith thc discrction of thc scnrcncing judgc unlcss thc scntcncc is illcgal or unless thc court is satisficd that thc scntcncc imposcd by thc trial <sup>15</sup> judgc was manifcstly so cxccssivc as to amount to an injustice."

Whilc scntcncing thc Appcllant in this calsc, thc Lcarncd Triirl Judge hcld that;

"... Convict scntcnccd to imprisonmcnt for 15 ycars elnd <sup>3</sup> months from thc dirtc of conviction thc pcriod spcnt on rcmtrnd of 3 ycirrs and 9 months having bccn dcductcd. Right ofAppeal cxplaincd..."

Wc havc carcfully rc-cvaluatcd thc ruling of thc trial ,)udgc on scntcncing. Wc obscrvcd that shc did not considcr thc mitigating and

25 aggravating firctors bcforc impt-rsing thc scntcncc. Wc hou'tvcr notc rhat shc considcrcd thc pcriod spcnt on rcmand. In ordcr for this court to asscss rvhcthcr thc scntcncc was harsh it is guidcd by thc principlcs Iaid dorvn in thc scntcncing guidclincs.

Under Paragraph l9(l) of the sentencing guidelines, thc court shall be guided by the scntencing range specified in Part I of thc Third Schedule in determining the appropriate custodial sentence in <sup>a</sup> capitai offcnce. Furthermore, Paragraph l9(2) of thc same guidelines

5 provides that in a casc where a sentcnce of death is prescribcd as thc maximum sentcnce for an offence, the court shall, considering the factors in paragraphs 20 and 2I determinc the sentcnce in accordancc wich the sentencing range.

According to the third Schedule thc scntcncing range for app5ravatcd

10 dcfilement after considcring both thc aggravating and mitigating factors is 30 years to Death as the maximum scntcncc.

Wc have further observed that thc Lcarncd Trial Judgc did not demonstrate thc need for consistency with offenders in respcct of similar offences committcd in similar circumstances as required by

- 15 Paragraph 6(c) of the Sentencing guidelines which providcs that court should be guided by thc principie of consistency whiie passing a sentcnce to a convict. Additionally, Aharikundira Yustina v Uganda SCCA No. 27 of 2015 emphasised thc nccd ft'rr consistency whcn dealing with appeals regarding sentencing that havc similar - 20 facts. Consistcncy is a vital principle of a scntencing regime. It is dccply roorcd in the Rule of Law and requires that laws be applied wich equality and without unjustifiable differentiation.

In mitigation, defence counsel submittcd thrrt thc ;rppcllant u'as <sup>a</sup> first-timc offcndcr aged 25 ycars rvith Potcntial to rcform ln aggravation, counsel for the Statc submittcd that the agc differencc

- 5 bctwccn thc appellant and the victim was rvidc, thc victim rvas only <sup>8</sup> and thc appcllanr was 2l ycars by thc timc of commission of the offcncc. Dcfcncc Counsel further avcrrcd thar thc victim suffered injurics in hcr genitalia and was traumatiscd. Four ycars down the road, thc mcmories werc still frcsh making thc victim was cry - throughout hcr testimony. Counsel also submittcd that the appellant traumatiscd trvo children whcn hc dcfilcd PWI in thc presence of PW4. Wc note rhat the respondcnt did not cross irppcal This mcans that in spitc of the aggravating circumstanccs, thc scntcnce of thc trial Judgc is only challenged by thc appcllant for scvcrity. 10

In Ninsiima Gilbert v Usanda CAC. A No. 1080 of 2010 this Court found that thc range of sentenccs for similar offcnccs of Aggravated Dcfilcmcnt is 15-18 years. In that casc, this Court rcduced a scntence o[ 30 ycars to 15 years imprisonmcnt for thc offcncc of Aggravated

Dcfilcmcnt. 20

> Similarly, in Tiboruhanga Emmanuel v Uganda CACA No' 0655 of 2014, this Court found that a sentcncing rangc of ll ycars to 15 ycars in aggravatcd dcfilement cases rvithout additional aggravating factors rvas suitablc. In this case, thc Court considcrcd thc fact that che

appcllant u,as HIV positive as an additional aggravating factor in that hc had, by committing a scxual act on thc victim u'hilc HIV positivc, cxposcd hcr to the risk of contracting HIV/AIDS. Thc Court imposcd a scntcncc of 25 years imprisonmcnt. 25

In Gcrman Bcniamin v Usanda CACA No. 142 of 2010 this Ctrurt sct aside a sentence of 20 years imprisonmen! for the offence of aggravatcd defilement and substitutcd it with a scntencc of 15 years imprisonment.

- 5 In Asanasio Weitire v Usanda CACA No.46 of 2006 this court substirutcd a l2-year sentencc with lifc imprisonmcnt in an aggravatcd dcfilcment case. In this casc, thc appcllanr a 63-ycar-o1d man dcfilcd two defenceless childrcn in a crucl and barbaric manner. Hc would tic one on a tree whilc dcflling thc othcr. Thcrcafter, he - would tic on a rree rhe defiled girl whilc dcfiling thc othcr. The above casc is applicable to the matter beforc us as thc appcllant in this case dcfilcd Pw3 in the presence of PW4 anothcr child, he traumalized trvo siblings of tender years. This farct also aggravatcs the matter bcforc us. 10 - During scntencing the trialJudge rulcd as follorvs: 15

ttl7l20t8.

Mr. Nicholas Kawooya (State Attorncy) for thc Statc.

Mr David Musolwa for the accuscd on Statc bricf.

Thc accused is in Court.

Mr. ObothJadwong - Court clerk 20

Mr. Joscph Obuan - intcrprctcr.

COURT:

Scntcncc delivered.

Convict scntenced to imprisonmcnt for 15 ycars and 3 months

from the datc of conviction thc pcriod spcnt on rcmand of <sup>3</sup> ycars and 9 months having bccn dcductcd. 25

It u,as lhc submission for the appellant that thc scntencc pronounced abovc amounEcd to 19 years of imprisonmcnt. His argumcnt therefore was that thc trialJudge aggpegated thc timc spcnt on rcmand together

appellatc court to consider if thc scntcncc mct the criteria sct down in Rwabusandc Moses v Usanda SCCA 14 of 2015. In u'hich thc suprcmc court hcld as follows:

"Wc must cmphasizc that a scntcncc couched in gcncral tcrms that court has taken into account thc timc thc accuscd has spcn! on rcmand is ambiguous. In such circumstanccs, it c:rnnot bc uncquivocally asccrtaincd that thc court accountcd fttr thc rcmand pcriod in arriving at thc final scntencc. Article 23 (8) of the Constitution (supra) makcs it mandatory and not discrctional that a sentcncing judicial officer accounts for thc rcmand pcriod."

Upon making an o,aluation o[ thc abovc scntence wc find that in this particular casc, thc mind of thc trialJudgc can be disccrncd. Although the trial judgc d'id not mcntion thc aggrcgatc scntencc of 19 ycars, shc

- clearly spclt out two things. In r,lvcrsc, thc first was that shc had considcrcd dcductcd the 3 years and 9 months rvhich thc appcllant had spcnt on rcmand. The operativc rvords hcrc u,crc "having deductcd". This mcans the dcduction, although donc by implicirtion, was indccd carricd out. In our vicrv, hcr asscrtion thcrcforc mccts the 15 - 20 Rwabugandc tcst. It u,as absurd irncl illt'rgical to introducc r l9 ycirrs' imprisonmcnt into this case. In any czlsc rhe worst that could havc happencd was for this court to dcduct thc 3 ycars and 9 months from che 15 ycars and 3 months. This vvould be uncalled for sincc the wording of thc scntence, although passivc, was clear cnough. It is - always best to statc what the starting point of the sentcncc is and thcn to set off clcar]y, the period spent on rcmand and finally !o pronounce the timc which an appellant is cxpcctcd to spend.in prison. This way any doubts arc cast out. 25

Despite not strictly applying the conditions, as sct, under Rwabugande, the lcarncd trialJudge clearly stipulatcd thc scntcnce. The appellant was scntcnccd to 15 years and J months' imprisonment. The trial Judge considcrcd thc apgravating circumstanccs of this case

- 5 which includcd thc bctrayal of a family friend, intruding on and compromising of thc safcty of a friend's childrcn, dcfiling the underage-child of somconc hc called a friend and traumatising two children o[ tcndcr agc. Wc find rhat in arriving at a lcnicnt scntcnce of 15 years and 9 months, thc trialJudge appears ro havc bccn su,ayed - by the mirigating fators which included thc agc of rhc appcllant, hc was 25 years of agc, and capablc of reform, had a brokcn and contritc <sup>n</sup>ilturc. 10

We have no reason to disrurb the sentence and thcrcforc wc uphold the same. In the result, thc appellant shall serve the scntence of <sup>15</sup>

years and 9 months' imprisonmcnt with effect from thc 20'h of July 2018, being thc date of conviction. 15

Consequently, this appcal fails.

We so order.

DatedatKampala \*ikfrnt )021.

30H NOBURA

. JUSTICE OF APPEAI-


CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL

CHRISTOPHER MADRAMA . JUSTICE OF APPEAL