Osilon v Uganda (Criminal Appeal 59 of 2010) [2025] UGCA 68 (11 March 2025)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Mulyagonja, Tibulya & Kazibwe Kawumi, JJAJ

## CRIMINAL APPEAL NO. OO59 OF 2O1O

OSILON PETER ............. APPELLANT

### VERSUS

UGANDA ......... RESPONDENT

(An appeal arising fro\* the decision of the High Court of Uganda 'at Mbale in Criminal Case No. 0056 of 2009 before Musota, J dated l3'h May, 2010)

## JUDGMENT OF THE COURT.

l. This is an appeal against sentence only. The appellant was indicted with the offence of aggravated defilement contrary to sections 129 (3) (4) (a) & (c) of the Penal Code Act. The particulars of the offence were that on 2l't of May 2OOg at Onokora Village in Pallisa District, the appellant performed an unlawful sexual act on A. S. E a girl aged 4 years.

#### Background.

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- 2. The facts of this appeal as accepted by the learned trial Judge are that on the day in question, the appellant (father to the victim), PW2 (Apolot Margaret) who was the mother to the victim, and the victim were at their home. The victim was sleeping. - 3. While PW.2 was preparing supper in the kitchen, she heard the victim crying. She went to find out why the child was crying. She found the appellant whom

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she asked why the child was crying, but the Appellant kept quiet. Pw2 asked the victim what had happened to her. The victim told her that her father had put something in her private parts. Pw2 examined the victim and saw a fluid which was mixed with blood coming from her private parts.

- 4. The appellant threatened P. W.2 telling her that if she reported the matter to the authorities he would come back and kill her. - 5. PW.2, however, reported the incident to the chairperson LC.1. The LC chairperson took the appellant to the police. When PW.2 reported the appellant's action to the authorities, the relatives of the appellant mistreated her and demolished her house, alleging that she was one Mustafa Mwanika's girlfriend, which she denied. - 6. The victim was medically examined and found to have been 4 years old at the time of the offence. It was also established that there was penetration, and that the victim's hymen had been raptured less than a week before examination. There were injuries and inflammation around the private parts which were consistent with force having been used. - 7. The appellant was subsequently charged and convicted of the offence of aggravated defilement. He was sentenced to 25 years' imprisonment. Dissatisfied with the sentence, he appealed to this court on the sole ground that the learned trial judge erred in law and fact when he sentenced him to twenty-five years' imprisonment without deducting the time spent on remand

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#### Representation.

8. At the hearing, the appellant was represented by Miss Agnes Kanyago while the respondent was represented by Mis Fatina Nakafeero, Chief State Attorney and Mr. Edwin Amanya, a State Attorney.

### Submissions by Counsel.

- 9. It was submitted for the appellant that the sentence of 25 years meted out to him was illegal since the leamed judge failed to take into account the period of I year, which the Appellant had spent on remand. This, it was argued, offended Article 23(8) of the Constitution and Guideline l5 of the Sentencing Guidelines 2013. Counsel asked the court to set the sentence aside and impose a sentence of 24 years' imprisonment. - l0. The respondent opposed the appeal and asked the court to uphold the sentence. It was contended that the learned judge cannot be faulted for not abiding by the 2013 guidelines which were not in place when the appellant was sentenced in 2010.

### Consideration of the appeal.

ll.lt is trite law that an appellate court cannot interfere with the sentencing discretion ofthe trial court unless the trial court actecl on some wrong principle or it overlooked some material facts or imposed a sentence that is manifestly high or low as to cause a miscarriage ofjustice. See: Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001. the court held: -

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"The appellate court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle."

- 12. The appellant's complaint in this appeal is that the learned trial Judge erred in law and fact when he sentenced him to 25 years' imprisonment, a sentence he deemed illegal for failure to consider the period on remand. - 13. Consideration of the remand period is a constitutional requirement provided for under Article 23(8) of the Constitution. It provides:

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

- 14. We note that the appellant was sentenced on 13/5/2010 before the 2013 Guidelines came into force. The sentencing Guidelines cannot be applied retrospectively and are irrelevant to this case. - 15. While sentencing the appellant on the $13/5/2010$ , the learned judge stated as follows:

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"Although the convict is a first offender, I will out rightly dismiss the prayer for a caution. This is a grave offence where the real father of a child turns on her and molests her yet his duty was to protect the child. As submitted by the learned Resident State Attorney, the duty of the father was to protect the innocence of the child. The convict breached the trust which the family held in him. He acted in a savage manner. The object of the punishment will be considered as well as time spent on remand. Although the maximum sentence for this offence is death. The state did not ask for and defend it. I will not give it. In the circumstances of this case, and given that society expects this character to be out of for some time. The convict will serve 25 years' circulation **imprisonment."** (see page 208 and 209 of the record of appeal)

- 16. Turning to the Constitutional requirement that a sentencing judge should take into account the period which a defendant will have stayed on remand, under Article 23 (8) of the Constitution, we note the learned judge's statement that "the object of the punishment will be considered as well as time spent on *remand*". This statement indicates that the trial judge was alive to his duty to consider the constitutional imperative regarding the remand period in sentencing the appellant. - 17. The import of Article 23 (8) was discussed in Kizito Senkula v Uganda, SCCA No. 24 of 2001 (unreported), in which the court held as follows:

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"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

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take into account the period which the person spent on remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise."

- 18. Drawing on the foregoing, we think that the learned judge complied with Article $23(8)$ of the Constitution when he sentenced the appellant. - 19. Accordingly, we find no merit in this appeal, and it is hereby dismissed. The sentence of 25 years imprisonment is upheld.

$\frac{1}{2025}$ Dated at Mbale this .........

Dem

Irene Mulyagonja **Justice of Appeal**

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**Margaret Tibulya Justice of Appeal**

Moses Kazibwe Kawumi **Justice of Appeal**