Wangusi v Uganda (Criminal Appeal 292 of 2017) [2025] UGCA 108 (24 April 2025)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT Kampala

## [Coram: Chrlstopher Gashirabake, Dr. Asa Mugenyl & John Mike Musisl JJAI CRIMINAL APPEAL NO. 0292 OF 2OI7

[Appeal from the Judgment of High Court at Mukono by Margaret Mutonyi J. in Criminal Case 492 of 2077 delivered on 2"d August 20171

# WANGUSI RONALD ::::::::::::::3r:::i:::::::::!::::r::!::::::::: APPELLANT VERSUS

UGANDA :i3:::::::::::::::::::r:::::::::::i::::::::i3i::::::r3:::::::::::: RESPONDENT

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#### JUDGMENT OF THE COURT

## 1. INTRODUCTION

This is an appeal against the conviction and sentence ofthe appellant to 15 years of imprisonment for the offence of aggravated defilement contrary to Sections 129(3) and (a)(a) of the Penal Code by Margaret Mutonyi J. The appellant allegedly del-rled a girl of 13 years. 20

## 2. BACKGROUND

On 4th September 2015 at around 5.30 pm, the father of the victim, one Fred Mutyabule sent her with her sister, one Agnes Nanfuka to Magala trading centre to buy medicine. On their way home two people on a motor cycle at a terrible speed passed them. After a short distance, the motor cycle stopped. The persons on the cycle chased the victim and her sister. The persons were identified as the appellant and one Tonny. The appellant and Tony caught up with the victim, put her on the motor cycle and took her to a nearby play ground where both of them performed sexual intercourse on her. The appellant attempted to strangle the victim but she escaped and ran back home and informed the father. The father reported the incident to the Police. 30

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5 The appellant was arrested and charged with defilement. The appellant was convicted on his own plea of guilty of the offence of aggravated defilement. He was sentenced to 15 years. The period on remand inclusive.

## 3. GROUNDS OFAPPEAL

- 10 - 1. The learned Judge erred in 1aw and fact when she sentenced the appellant to amanifestly harsh sentence of 15 years without removing the period spent on remand.

#### 15 Representation

Atthehearingon3l=tMarch2025,theappellantwasrepresentedbyMr. Brian Alfred Serunjoji on State brief while the respondent was represented by Mr. Simon Semalemba, Assistant Director of Public Prosecutions'

## SUBMISSIONS OF PARTIES

## 4. APPELLANT'S SUBMISSIONS.

25 The counsel for the appellant cited Nsimbi Paul u tlgando Appeal Case 0187 of 2077and Kamga u IJganda criminal case 16 of 2O00 where it was stated that an appellate court will not interfere with a sentence imposed by the trial court which has exercised its discretion unless the exercise of the discretion is such that it resulted in a sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where the court ignored to consider an important matter or circumstances which ought to have been considered' 30

counsel for the appellant argued that instead of deducting the period spent on remand, the trial Judge included it. The counsel cited Guideline 15 of the Sentencing Guidelines which states that the court needs to talce into consideration the period the convict had spent on remand. Guideline 51(2) states 2lPage

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5 the court shall deduct the period spent on remand from the sentence considered appropriate after taking all matters into consideration. Counsel prayed the period spent on remand of 1 year 9 months be deducted from the sentence.

#### 5. RESPONDENT'S SUBMISSION

The counsel for the respondent in reply, conceded that the trial Judge when passing the sentence of 15 years did not specifically take into account the period the appellant spent on remand. He prayed that the court invokes its power under Section 11 and resentence the appellant to an appropriate sentence.

## DETERMINATION

Since the counsel for the respondent has conceded that the trial Judge erred when sentencing the appellant by not deducting the period spent on remand, we shall set aside the sentence. The need to subtract the period spent on remand is provided for in Article 23(8) of the Constitution of Uganda which states that:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lau{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 spent in remand. Guideline 15 states

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

- 30 - (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 remald from the sentence considered appropriate after ail factors have been taken into account."

In Rutabugande u Uganda, SCCA 25 of 2Ol4 the court stated;

"It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with

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- 5 certainty and precision, consideration of the remand period should therefore necessarily mean reducing as subtracting that period from the first sentence." Therefore, the failure to deduct the period spent on remand made the sentencing illegal. After re-sentencing, we still need to consider the period spent on remald' - 10 Having set aside the sentence we shall consider the mitigating and aggravating factors afresh. The appellant was 29 years at the time of the offence. He was convicted on his own plea of guilt. The offence committed is punishable by death. He attempted to strangle the victim who was traumatized by the heinous acts of the appellant. The appellant deserves a deterrent sentence. The appellant is sentenced to 15 years of imprisonment. 15

we shall deduct the period spent on remand. The appella]lt was charged on lsth september 2015 and was sentenced on the 2"d August2ol7. The appellant spent 1years 10 months and 17 days on remand. we shall deduct the period spent on remand. Therefore, the appellant will serve a sentence of 13 years 1 month 13 days from the date of the sentence by the trial court' We so order'

Dated at KamPala this ?i1^, lh0^:/ 2025

Christopher Gashlrabake

Justlce of APPeal

ugen Dr. Asa

Justice of ApPeal

J o Appeal

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