Twesigye v Uganda (Criminal Appeal 709 of 2014) [2024] UGCA 256 (4 September 2024)

Full Case Text

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA Coram: Luswata Oscar Kihlka and Asa Mu en JJA CRIMINAL APPEAL COA-oo-cR-cN-o 709 0? 20L4 (Arising from High Court Criminal Case 076 of 2Ol4 at Mbarara')

#### TWTSIGYE MICHAEL ALIAS MUHOORA VERSUS APPELLANT

UGANDA :::::3::::::::::::::::::::::::::::::::::::::::::3::::::::::::::::: RESPONDENT

#### JUDGMENT OF THE COURT

# 1. INTRODUCTION

20 This is an appeal against the sentence for the offence ofrape contraly to Sections 123 and. 124 of the Penal code and aggravated robbery contrary to sections 285 and 286 ofthe Penal code whereby the appellant was given sentences of 11 years and 18 years of imprisonment respectively to run concurrently by Duncan Gaswaga J..

## 25 2. BACKGROUND

On 27 th November 2013 at around 9 pm, the appellant raped one Syson Kyomuhendo at Kyeizooba sub county, Bushenyi district. Thereafter he robbed bread, a cloth, a pair of shoes and Shs. 2o,000 from the victim. He threatened the victim with a knife.

The victim was going to visit a patient when she met the accused. She was ordered to stop but she ran away. The accused chased her and caught up with her. He had a knife and took the Kitenge which the victim had. She was dragged to nearby bush where they stayed till 2 am. He had sexual intercourse with her.

He then led her to his home where they had sex until morning before letting her llPage 35

off. He returned the Kitenge and bread. The victim reported to authorities and her grandmother. The appellant was arrested. On examination, the victim had sustained injuries on her body including private parts. The accused was found to be 25 years and HIV Positive. He was charged and convicted for the offences of rape and aggravated robbery. He was sentenced to 11 years for the offence of rape and 18 years for the offence of aggravated robbery. The sentences were to run concurrently. 10 5

# 3. GROUNDS OF APPEAL

- 1. The learned judge erred in law and fact when he convicted the appellant for the offences of rape and aggravated robbery basing on a plea of guilty record without following the legally established procedure of recording a plea of guilty hence occasioning a miscarriage of justice. 15 - 2. The learned trial judge erred in law when he sentenced and convicted the appellant based on an irregular plea hence occasioning a miscarriage of justice. 20 - 3. The tria-l judge erred in law and fact when he imposed a harsh and excessive sentence on the appellalt, yet he pleaded guilty hence occasioning a miscarriage of justice. 25 - 4. The trial judge erred in law and fact when he did not deduct the period on remand hence occasioning a miscarriage of justice. - 30

At the hearing on 4th September 2024, the appellant abandoned grounds 1,2 and 3. It was only ground 4 that remained. Leave was granted to the appellant to appeal against sentence only. The respondent conceded that the judge did not deduct the period on remand hence the sentence was not proper.

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4 b.f LPy.-

## 4, ISSUES

1. Whether the sentence meted on the accused by the trial court was illegal?

## 10 Representation

The appellants were represented by Mr. Chan Geoffrey Masereka on state brief while the respondent by Ms. Fatinah Nakafeero, Chief State Attorney and Ms. Sheba Byakutaga, Senior State Attorney.

#### SUBMISSIONS OF PARTIES

## 5. APPELLANT'S SUBMISSIONS.

20 On ground 3, the appellant submitted that it is trite law that an appellant court will only interfere with the sentence of the trial court if there is al illegality such as where the trial court acted contrary to the law or upon a wrong principle or overlooked a material fact. The appellant cited Jockson Zita u tlganda Supreme Court (SC) Criminal Appeal 9 of 1998 and Liuingstone Kakooza u tlganda SC

25 Criminal Appeal 17 of 1993.

> The appellant submitted that he was a hrst offender. He has spent 1 year and 5 months on remand prior to his conviction. He was 25 years of age. The court never deducted the period spent on remand.

On ground 4, the appellant submitted that the period spent on remand should be deducted from the sentence. He cited Guideline 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 20 13 which state

"(1) The Court shall tal<e into account any period spent on remand in determining the appropriate sentence

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(2) The Court shall deduct the period spent on remand from the sentence considered appropriate after all the factors have been taken into account,"

The appellant submitted that the trial judge in arriving at his sentence never deducted the period spent on remand. He cited Rwabuganda Moses u Uganda SC Criminal Appeal 25 of 2Ol4 where the Court stated that

"lt is our view that the taking into account of the period spent on remand by a court is necessarily arithmetica-I. 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 from the final sentence. That period spent in lawful custody prior to the trial must be specihcally credited to the accused." 15 10

The appellant also cited Nashimolo Paul Kibolo u Uganda Supreme Court Criminal Appeal 46 of 2017 where the court stated that

"a sentencingjudge is under a duty to consider the exact period spent on remand in upholding the provisions of the supreme law of the land. For avoidance of imposing ambiguous sentences, we hold that the period spent on remand must be arithmetically deducted. This renders justice to a convict."

The appellant prayed that this court finds that the trial judge erred in not deducting the period spent on remand.

## 25 6. RESPONDENT'S SUBMISSION

At the hearing of the appeal on 4th September 2024, counsel for the respondent conceded that the trial judge did not consider the period on remand.

## 30 7. DETERMINATION

The appellant abandoned grounds l, 2 and 3 of his memorandum of appeal. The sole ground 4, that was remaining, was that the trial judge erred in law and fact when he did not deduct the period spent on remand hence occasioning a miscarriage ofjustice. The respondent conceded that trial judge did not deduct the period on remand. The appellant was not disturbed by the severity of the sentence of the trial judge. 4lPage

tA/

The need to subtract the period on remand from the sentence of an accused is provided for in the Constitution. 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 la\*{ul 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 l5 states

#### "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.' - In Ru.nbuganda u Uganda SCCA 25 of 2Ol4 the court stated; 20

"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.

Therefore, the omission to deduct the period on remand by the trial judge means that the sentence passed by the trial judge was illegal. Having stated that it was illegal, we sha.ll set it aside and issue a fresh one. 25

30 In order to reach a proper sentence, we shall at the aggravating and mitigating factors. The appellant admitted that he committed the offences of rape and aggravated robbery. The appellant waylaid his victim. He dragged the victim to the bush until 2.0O pm and thereafter to his house where he had sexual intercourse with her throughout the night. He therea-fter robbed her of bread, a cloth and pair of shoes. He threatened to use a knife on her. These are heinous crimes. The accused is HIV positive, He exposed his victim to HIV. The mitigating facts is that the appellant was a first offender. He pleaded guilty. He is remorseful. He left behind two children. He was 25 years of age. Taking the 5lPage 35

- above into consideration we shall sentence the appellant to 11 years for the $\mathsf{S}$ offence of rape and 18 years for the offence of aggravated robbery. The sentences to run concurrently. The appellant was charged for the said offences before the Magistrate's Court on 10th December 2013. He was convicted on 28th May 2014. He spent 169 days on remand i.e. 5 months 19 days. The said period should be - deducted from the appellant's sentence. The appellant will serve 10 years 7 10 months and 11 days for rape. The appellant shall serve a sentence of 17 years 6 months and 11 days from the date of conviction for aggravated robbery. The sentences are to run concurrently.

Dated at Kampala this ....... day ... Sept ............2024 15

Eva Luswata

Justice of Appeal

Dr. Asa Mugenyi **Justice of Appeal**