Rwabwera v Uganda (Criminal Appeal 303 of 2014) [2024] UGCA 247 (3 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA [Coram: Eva Luswata, Oscar Klhlka, and Asa Mugenyl' JJA] CRIMINAL APPEAL O3O3 OF 2014

[Appeal from the Judgement of High Court sitting at Rukungiri in Criminal Case HCT-14-CR-SC-59 of 2Ol2 by Justice John Wilson Kwesiga delivered on 7tt December 20 l2l

# RWABWERA ROBERT ::::::::::::::::::::::::::::::::::::3:3:::::::: APPELLANT

#### VERSUS

UGANDA :::::::3::!:::::::::::::3::::::::::3::3::333:::::::::::::::::::::: RESPONDENT 15

### JUDGMENT OF THE COURT

## 1. INTRODUCTION

This is an appeal against the conviction and sentence of the appellant to 20 years of imprisonment for the offence of aggravated defilement contrary to S' 129 of the Penal Code by Justice Wilson Kwesiga. The appellant allegedly defiled a girl of 4 years.

## 2. BACKGROUND

On 26th July 20 10, the appellant defiled one Mercy Nabaasa at Murumba village, Kanugu district. The appellant took the victim to a bush where he defiled her' The appellant was convicted of aggravated defilement and was sentenced to 20

years of imprisonment.

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## 5 3. GROUNDSOFAPPEAL

- 1. The learned judge erred in law and fact when he imposed a sentences of 20 years of imprisonment, a sentence which is manifestly harsh and excessive in the circumstances thus causing a miscarriage of justice. - 10 - 2. That the trial judge erred in law and fact when he failed to consider the appellant's time on remand thus imposing an illegal sentence. - -t5 3. The learned judge erred in raw and fact when he relied on contradictory and inconsistent evidence of the prosecution witness against the appelrant thus occasioning a miscarriage of justice.

At the hearing of the appeal on 3'd September 2024, the appellant abandoned Ground 3 of the memorandum of appeal.

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## 4. ISSUES

- 1. Whether the judge imposed an illegal sentence? - 25 2' whether the sentence meted on the accused was manifestry harsh and excessive?

### Representation

30 The appellant was represented by Ms. caroline Ninsiima on state brief while the respondent was represented by Mr. Simon peter Semalemba, Assistant Director of Public Prosecutions.

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### **SUBMISSIONS OF PARTIES**

5. APPELLANT'S SUBMISSIONS.

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The appellant submitted that it is the duty of the first appellate court to reappraise all the material evidence adduced before the trial court and come to its conclusion of the fact and the law taking into consideration that it did not hear the witnesses. He cited Kifamunte Henry v Uganda Criminal Appeal 10 of 1997 (unreported).

On ground 1, the appellant submitted that judge erred in law and fact when he imposed a sentences of 20 years of imprisonment, a sentence which is manifestly harsh and excessive in the circumstances thus causing a miscarriage of justice. He submitted that the judge did not take into consideration mitigating factors. The appellant was 20 years at the time of sentencing. The appellant was a first offender and remorseful.

He submitted that the trial judge did not consider any decided cases of similar nature and circumstances which contravened that appellant's constitutional 25 right guaranteed under Article 21(1) of the Constitution which is to the effect that everyone is equal before the law.

The appellant further cited Guideline 6 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2003 which is to the 30 effect that every court when sentencing an offender shall consider the need for consistency with appropriate sentencing levels and other methods of dealing with offenders in respect of similar offences committed. The appellant cited German Benjamin v Uganda Criminal Appeal 142 of 2010 where the appellant defiled a 5-year-old girl. His sentence was reduced from 20 to 15 years. In Ninsiima Gilbert 35 $3$ | Page

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$\mathsf{S}$

- v Uganda Criminal Appeal 180 of 2010 the appellant was convicted of defiling an $\mathsf{S}$ 8-year-old girl. His sentence was reduced from 30 to 15 years. In Arinatiawe $v$ Uganda Criminal 0389 of 2015 the Court of Appeal reduced the sentence from 16 to 15 years. The appellant prayed that the Court reduces his sentence to 15 years. - 10

On ground 2, the appellant submitted that the trial judge erred in law and fact when he did not consider the time the appellant spent on remand. He submitted that the time he spent on remand was 2 years, 4 months and 12 days which was ignored. The appellant submitted that Article 23(8) of the Constitution makes it mandatory for any period an accused has spent in lawful custody to be deducted from the sentence. He cited Rwabuganda v Uganda [2017] UGSC 8, where the court stated that any sentence arrived without taking into consideration the time on remand was illegal. He invited the court to deduct the time on remand from the sentence.

## 6. RESPONDENT'S SUBMISSION

The respondent conceded that the trial judge did not consider the time spent on remand by the appellant before arriving at the sentence of 20 years of imprisonment. It cited Rwabuganda Moses v Uganda SCCA 25 of 2014 where it 25 was stated that a sentence arrived without taking into consideration of the period spent on remand is illegal since it contravenes Article 23(8) of the Constitution.

The respondent submitted that the trial judge when passing the sentence noticed that aggravated defilement had reached an alarming level. The court has a duty 30 to protect he weak and defenseless children. The court found no merit in the appellant's prayer for lenience. The court sentenced him to 20 years of imprisonment. The respondent conceded that the trial judge did not consider the mitigating factors in favour of the appellant.

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## 7. DETERMINATION

on 26ttt July 2010, the appellant performed a sexua-r act on one Mercy Nabasa a girl of 11 years. The appellant was convicted of aggravated defilement contrary to S. 129 of the Penal code. He was sentenced to 2o years of imprisonment. The appellant being aggrieved by the conviction and sentence of the trial judge has appealed to this court. At the hearing of the appeal, the appellant withdraw ground 3 which was on conviction. Therefore, we shall consider the remaining grounds on the sentence.

rn Kiualabye Bernard u IJganda sccA 143 of 2ooL 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 triar 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.

we shall address ground 2 frrst which is similar to issue r. The appellant 25 contended that the triat judge imposed an illega\_l sentence when he passed the sentence without subtracting the period the appelrant spent on remand thereby occasioning a miscarriage of justice. The respondent conceded that the trial judge did not consider the time spent on remand by the appellant before arriving at the sentence of 20 years of imprisonment. The need to subtract the period on 30 remand from the sentence of an accused is provided for in the constitution. Article 23(8) of the Constitution of Uganda which 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 triar shall be taken into account in imposing the 35term of imprisonment."

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5 The constitution (sentencing Guidelines for courts of Judicature) (practice) Directions also provide for subtracting of period in remand. Guideline 1s states

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

- (1) The court shall take into account any period spent on remand in determining an appropriate sentence.

10 (2) The court sha-ll deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account."

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

"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 15 certainty and precision, consideration of the remand period should therefore necessarily mean reducing as subtracting that period from the first sentence."

Therefore, if it is conceded that the trial court did not consider the period the appellant spent on remand before arriving at the sentence, then it is illegal.

20 Having stated that the sentence was illegal, it is set aside. It is not necessary for the court to consider ground 1 as to whether the sentence was harsh and excessive. Therefore, the court will impose a fresh sentence. Guideline 6 of the constitution (Sentencing Guidelines for courts of Judicature) (practice) Directions 2o03 is to the effect that every court when sentencing an offender 25 shall consider the need for consistency with appropriate sentencing levels and other methods of dealing with offenders in respect of similar offences committed.

The appellant cited German Benjamin u Ugand.a criminal Appeal 142 ot 2olo where the appellant defiled a s-year-old girl. His sentence was reduced from 20 to 15 years. In .lvlnsilma Gilbert u uganda criminal Appeal 1go of 2010 the

30 appellant was convicted of defiling an 8-year-old girl. His sentence was reduced from 30 to 15 years. ln Arinatianae u IJganda criminal 03g9 of 201s the court of Appeal reduced the sentence from 16 to 15 years.

we note that the appellant was a youth, 20 years of age, at the time of the crime. Benjamin odoki's Guide to criminal procedure 3.a Edition p. lT3.states that "The 35

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- fact than an accused person is a first offender and has had previous good record is a valid real mitigating factor." Guidelines 9(h) of the Sentencing Guidelines is to the effect that the court would consider age of the appellant. In Kabakera Steuen u Uganda CA 26 of 2016 the court held that the age of the convict is relevant factor and a young offender may be considered. The conviction was after - a full trial. Though, the appellant did not enter a plea of guilt, he was remorseful. Taking the said circumstances into consideration we shall pass a sentence of l8 years to run from the date of conviction. The period on remand is deducted. He spent two years, 4 months and 12 days on remand. Therefore, the appellant will serye a sentence of 15 years 7 months and 18 days from the date of conviction. We so order. 10 15

a Dated at Kampala this ..i. re Luswata Justlce eal \, },-n Dr. Aga Mugen5d Justlce of \*6

Justlce of Appeal

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