Sebaduka Umar v Uganda (Criminal Appeal No.O227 of 2016) [2025] UGCA 137 (14 May 2025)

### THE REPUBLIC OF UGANDA

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

[Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi & Oscar J. Kihika, JJAI

### CRIMINAL APPEAL NO. O227 OF 2016

# (Arising from High Court Criminal Session Case No. 15 of 2O16 at Mukono)

#### BETWEEN

SSEBADUKA UMAR APPELLANT

AND

UGANDA RESPONDENT

(Appeal from the Judgment of the High Court of Uganda Hon. Justice Margaret Mutonyi J delivered on 3.d September 2016)

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#### JUDGMENT OF THE COURT

#### **Introduction**

The Appellant was indicted and convicted of the offence of Aggravated Defilement contrary to **Sections 129(3) and** $(4)(a)$ and (b) of the Penal Code Act Cap 120.

### **The Facts**

The evidence presented at trial showed that the Appellant, on the 23<sup>rd</sup> day of May 2015 at Dungu village in Buikwe District had sexual intercourse with the victim, a girl aged 14 years. The Appellant was medically examined on police form 24A and found to be 20 years old and HIV positive. The Appellant opted to plead guilty under the Plea Bargaining procedure.

### Decision of the Trial Court

It was agreed under the Plea Bargaining agreement, and addendum thereto dated 11<sup>th</sup> June 2016 and 3<sup>rd</sup> September 2016 respectively, that the Appellant be sentenced to 13 years' imprisonment.

The Trial Judge consequently sentenced the Appellant to 13 years' imprisonment. Dissatisfied, that the Trial Judge did not consider the 1 year and 3 months the Appellant had spent on remand, the Appellant appealed against conviction and sentence on the following ground: -

That the learned trial Judge erred in law and fact when she passed an illegal sentence of 13 years without subtracting the period the Appellant spent on remand thereby occasioning a miscarriage of justice.

#### **Representations**

At the hearing, the Appellant was represented by Counsel Shamim Nalule and the Respondent by Counsel Joseph Kyomuhendo Chief State Attorney.

### **Leave to Appeal on Sentence only**

At the hearing the Appellant sought leave under Section $132(1)(b)$ of the Trial on Indictment Act Cap 25.

The parties sought leave of Court to adopt their written submissions as their legal arguments in this Appeal which leave was granted.

### **Power of the Appellate Court**

We are alive to the duty of this court as a first appellate court as decided in the case of **Kifamunte Henry v Uganda SCCA No. 10 of 1997** to reappraise all the evidence at trial and come up with our own inferences of law and fact.

The grounds for setting aside a sentence imposed by a trial court were generally set out in **Ogalo s/o Owoura v R (1954) 21 EACA** $270$ . In the appeal, the Appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. On the relevant principles to interfere with sentence, the East African Court of Appeal in that appeal held that: -

"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different

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sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James $v$ R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon a wrong principle or overlooked dome material factor." To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstance of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe *penalties and lesser offences in terms of aggravation attracting* less severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant *guiding actor..."*

We shall apply the above principles in determining this Appeal.

Ground: That the learned trial Judge erred in law and fact when she passed an illegal sentence of 13 years without subtracting the period the Appellant spent on remand thereby occasioning a miscarriage of justice.

# Appellants' submissions:

Counsel for the Appellant argued that the Appellant was convicted of Aggravated Defilement and sentenced to 13 years' imprisonment. However, he submitted that a critical legal error occurred when the trial Judge failed to deduct the period the Appellant spent on remand from his sentence.

This oversight directly contravened the provisions of **Article 23(8)** of the Constitution, Guideline 15(1) and (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) **Directions 2003.** In this regard, Counsel relied on the Supreme Court decision in **Rwabugande Moses V Uganda** SCCA 25 of 2014. He argued that despite the Appellant explicitly requesting the court to consider the time he had spent on remand during the sentencing hearing, the trial Judge inexplicably disregarded this critical factor.

Counsel for the Appellant further argued that the trial Judge's reasoning, which alluded to the "impropriety" of the Appellant's actions (the sexual act occurring "behind a toilet"), was no for **Article** the Constitution which justification $23(8)$ $\quad\text{of}\quad$ unequivocally mandated the deduction of all periods spent in lawful custody from the final sentence, regardless of the nature of the offense or the circumstances surrounding it.

Counsel submitted that. the Appellant, having been remanded in June 2015, had already served a significant portion of his sentence and it was necessary that this Court rectify this legal error by allowing the appeal, declaring the original sentence illegal, and ordering the deduction of the 1 year and 3 months spent on remand from the 13-year sentence imposed.

# **Respondents' submissions**

Counsel for the Respondent submitted that the plea bargain agreement was meticulously documented and encompassing both the initial agreement and subsequent addendums, explicitly stipulated a 13-year prison sentence. The Appellant, through his legal counsel, freely and voluntarily entered into this agreement, acknowledging its terms and accepting the proposed sentence.

the Respondent further argued that while Counsel for acknowledging the importance of adhering to **Article 23(8)** of the $\frac{1}{2}$ Constitution, the Court should uphold the spirit of the plea bargain agreement and only modify the sentence to reflect the 13-year term, less the time spent on remand. This approach would ensure justice

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was served while respecting the integrity of the plea bargain process.

# Findings by the Court

We have addressed our minds to the arguments of both Counsel and agree with the Respondent's concession regarding the violation of **Article 23(8).** The Article provides that determining a sentence, the time spent on remand shall be deducted.

Furthermore, Constitution, Guideline 15(1) and (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2003 which provides that: -

"...15. Remand period to be taken into account.

(1) *The court shall 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."

The omission of the remand period from the sentence was indeed a clear violation of the Constitution. The sentence meted is therefore illegal and is set aside.

We accordingly resolve this ground in the affirmative.

However, before we fully take leave of this ground, we have also considered the integrity of the plea bargain process and agreement. To completely disregard the terms of this agreement would undermine the integrity of the plea bargaining process and potentially discourage future defendants from entering into such agreements.

We find that in these circumstances, that a balanced approach is necessary. We accordingly invoke our powers under Section 11 of the Judicature Act Cap 13, and resentence the Appellant on his own plea of guilty and agreement to serve a sentence of 13 years' imprisonment. To this period, we deduct the period spent on remand 1 year and 3 months at the time of sentencing at the trial Court thereby giving a final sentence period of 12 years and <sup>3</sup> months. ')/)

### Final Decision

Having held as we have on the above issues, we decide and order that:

- 1. The Appeal is upheld. - 2. The Appellant shall serve a term of 11 years and 9 months commencing from the 03.d of September 2Ot6 the date of conviction at the trial Court.

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### We So Order.

Dated at $\mathcal{M}$ day of $\mathcal{M}$ . 2025.

**......**

Hon. Mr. Justice Geoffrey Kiryabwire, JA

$200$

Hon. Mr. Justice Muzamiru M. Kibeedi, JA

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Hon. Mr. Justice Oscar John Kihika, JA

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