Wabuna v Uganda (Criminal Appeal 181 of 2012) [2025] UGCA 73 (11 March 2025)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBALE

### Coram: Mulyagonja, Tibulya & Kazibwe Kawuffii, JJA)

### CRIMINAL APPEAL NO.181 OF 2OI2

### BETWEEN

## 10 WABUNA NATOLO JAMES APPELLANT

### AND

# UGANDA RESPONDENT

.-

(An appeal against the decision of Mugamba, J delivered on 26th June 2O,,2tn Mbale Criminal Session Case No.115 of 2010)

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### JUDGMENT OF THE COURT

The appellant was indicted with the offence of aggravated defilement contrary to section 129(3) and (a) of the Penal Code Act. He was on 26th June 20L2 sentenced to 25 years' imprisonment after a full trial.

### 20 Background

The facts admitted by the tria! Judge were that on 3Lst July 2009 and Lst August 2009 at Namugogo village, Bungokho subcounty in Mbale District, the appellant performed a sexual act with a girl aged L1 years old we have chosen to refer to as "SRN". The appellant had gone to the victim's home to attend a funeral.

The victim who was asleep near the appellant woke up her mother who had slept with a group of other people in the next room. The appellant fled from the house but was seen by the mother of the victim and he was found hiding in a bush close to the house the fo!lowing day. Both the appellant and SRN were taken to Police where medical examinations were carried out in preparation for the trial which resulted into the sentence of 25 years. t/\

- s Being dissatisfied with the sentence, he appealed to this court on one ground: - 1. That the learned trial Judge erred in law and fact when he sentenced the appellant to an illegal sentence of 25 years which was harsh, excessive and without consideration of the pre-trial 10 remand period hence causing a miscarriage of justice to the appellant.

Counsel for the appellant sought that the appeal be allowed, the sentence set aside and substituted with a more appropriate one.

### Representation

rs At the hearing of the appeal on l-Oth Ma rch 2025, Mr. Eddy Nangulu appeared for the appellant while Ms. Happiness Ainebyona, a Chief State Attorney in the Office of the Director, Public Prosecutions appeared for the Respondent.

Counsel filed submissions which on application were adopted as their 20 final arguments in the determination of the appeal.

## Submissions of Counsel

It was submitted for the appellant that the trial Judge did not comply with the requirement of Article 23(8) of the Constitution to take into account the period the appellant had spent on remand at the time he 2s was sentenced to 25 years. Counsel cited Suzan Kigula & 417 Others <sup>v</sup> Attorney General [2005] UGCC 8 for the proposition that the sentence was illegal on account of the period spent on remand not having been taken into account by the trial Judge.

!t was further argued that in Bukenya Joseph v Uganda, SCCA No. 17 of 30 2O2O and in Bashir Ssali v Uganda, [2005] UGSC l the same position of the law was espoused by the Supreme Court. lt was finally argued that the sentence of 25 years imposed bythe trial court was excessive since the appellant was a first offender and regretted his actions. The court was urged to re-sentence the appellant. g\

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s For the Respondent, it was argued that the sentencing Judge took into account the period the appellant had spent on remand and the wording used sufficiently met the requirements of Article 23(8) of the Constitution. The Court was referred to Kizito Ssenkula v Uganda [2002] UGSC 35 for the proposition that taking into account did not mean an 10 arithmeticexercise.

Counsel argued that it was sufficient for the sentencing Judge to indicate or mention that he had taken into account the remand period when imposing the sentence and it had been done in the instant case.

Regarding the severity of the imposed sentence, it was submitted that 1s the trialJudge considered all mitigating factors. The court was also urged to consider that the appellant was 34 years old at the time he commltted the offence while the victim was L1 years old.

It was further argued that sentence is a discretion of the trial Judge and an appellate court would not interfere with the sentence imposed save 20 where it was illegal or harsh and manifestly excessive. See Kyatimpa Edward v Uganda, SCCA No.10 of 1995.

Counsel submitted that while the principle of consistency in sentencing should be applied as set out in Mbunya Godfreyv Uganda, SCCA No.4 of ?. OLL, the court should consider that sentences higher than what was 2s imposed by the sentencing Judge in this appeal have been handed out by the courts where the aggravating factors outweigh the mitigating ones.

The decisions in Bonyo Abdul v Uganda, SCCA No.07 of 2}l]. and Bachwa Benon v Uganda, CACA No.38 of 2Ol4 in which the court in both 30 cases upheld life sentences in aggravated defilement cases were cited by Counsel for the Respondent. Reference was also made to Seruyange Yuda Tadeo v Uganda, CACA No.80 of 2010 in which the court upheld 29 years' imprisonment in a case of aggravated defilement. Counsel urged h../ tu

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the court to dismiss the appeal and uphold the sentence imposed by the $\mathsf{S}$ trial court.

### **Analysis**

In the determination of this appeal, we are guided by the principle that the appellate court can only interfere with a sentence imposed by the trial court when it is illegal or based on a wrong principle of law or where the court did not consider material factors. The court can also interfere if it is evident that the sentence imposed was harsh and manifestly excessive in the circumstances. See Bashir Ssali v Uganda [2005] UGSC 21; Livingstone Kakooza v Uganda [1994] UGSC 17.

In order to determine whether the trial Judge did not take into account 15 the period the appellant had spent on remand before determining the sentence, we find it necessary to reproduce the sentencing notes. The Trial Judge stated as follows;

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"The convict is a first time offender. He is an old man who must have taken care of the victim. Instead, he acted as a predator to her. This is a matter that is rampant and must be controlled. The sentence imposed will control the society from this behaviour.

A maximum penalty is the death sentence in this case. Taking everything into account regarding the period the convict has spent on remand, I convict and sentence the convict to 25 years' imprisonment."

We noted from the excerpt above that the trial Judge did not mention the period the appellant had spent on remand before determining the sentence he imposed. The time spent on remand was stated to be 2 years and 9 months by the State Attorney while making submissions in aggravation of the sentence.

We believe that the failure to state the period on remand but referring

to it as having been taken into account created an ambiguity in the

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sentence imposed by the sentencing Judge.

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<sup>5</sup> The sentence is set aside and we invoke our powers under section i.1 of the Judicature Act to sentence the appellant afresh.

Section 1L of the Judicature Act provides as follows;

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"LL. Court of Appeal to have powers of the court of originaljurisdiction.

For the purpose of heoring and determining on oppeol, the Court of Appeol shall have all the powers, authority ond jurisdiction vested under ony written law in the court from the exercise of the originol jurisdiction of which the appeal originally emonated,,.

ln the determination of the appropriate sentence, we are guided by the principles of parity and consistency in sentencing. We are however alive to the fact that no two cases are exactly similar. The circumstances of each case are considered on their merits. The mitigating and aggravating factors embedded therein may yield a different sentence from that imposed in a case arising from an otherwise similar offence. L5

ln Turayomwe Moses v Uganda, CACA No.20 of 20L3, this court upheld a sentence of L5 years on appeal. !n Opio Francis v Ugandal2O2Ol UGCA 52 the court reduced a sentence of Life imprisonment to L7 years and <sup>9</sup> months while in Buga Majid v Uganda 12O241UGCA 329 this court resentenced the appellant to 18 years for defiling a t2 years old victim. 20

The appellant was 34 years old at the time he defiled SRN then aged 11. It was stated in submissions in mitigation that he was a first time offender with a family of four children and was the sole bread winner for them. ln aggravation of the sentence, it was submitted that he had spent 2 years,9 months on remand but had failed to protect the victim and instead acted as a predator. 25

The appellant was of the age to be a father of the victlm and should have protected her which he did not do. The Constitution (sentencing guidelines for courts of Judicature) (Practice) Directions, 2OL3 provide 30

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<sup>5</sup> for a sentencing range between 20 years' imprisonment to death for aggravated defilement.

We believe a sentence of 20 years is appropriate to the circumstances of the case.

The appellant is re-sentenced to 20 years imprisonment from which we deduct the 2 years, 9 months he spent on remand. The appellant will serve 17 years, 3 months' imprisonment from z6th June 2012, the date of sentencing. 10

Dated and delivered at Mbale this............day of Ma rch 2025.

lrene Mulyago Justice of Appeal ar 'r M Tibulya Justice of Appeal Moses Kazibwe Kawumi Justice of Appeal 15 20 25 (