THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA (COA) AT KAMPALA
CRIMINAL APPEAL NUMBER 0228 OF 2009
KAWESI JOHN :::::::::::::::::::::::::::::::::::::::::::APPELLANT
VS
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
CORAM:
HON. MR JUSTICE S.B.K KAVUMA, JA
HON. MR JUSTICE ELDAD MWANGUSYA, JA
HON. JUSTICE PROF. LILLIAN EKIRIKUBINZA TIBATEMWA, JA
(Arising from the conviction and sentence of the Learned Judge of the High Court of Uganda at Luwero, the Hon Justice Atwoki Rugadya, in his Judgment dated 30.10.2008, in Criminal Session Case No.0216/2006)
THE JUDGMENT OF COURT
The Appellant was represented by Mr. Edson Ruyondo. The Respondent was represented by Principal State Attorney Fred Kakooza.
The appeal was only against sentence. Counsel for the appellant applied for Leave to proceed with this one ground under the provisions of Section 132 1(b) of the Trial on Indictments Act and Rule 43 (3) (a) of the Rules of this Honorable Court which enjoin an appellant to seek leave of court to appeal against sentence only. Leave was accordingly granted by Court.
Facts of the Case.
The brief facts of the case as found by the trial court were that on 10th December 2005 at Bugambakimu village in Nakaseke District, the appellant defiled a young girl aged 7 years.
The appellant denied the charges and decided to remain silent during the trial. He did not call any witness. The trial court convicted him of the offence of aggravated defilement C/S 129 (3) of the Penal Code Act and sentenced him to a prison term of 16 years.
The appeal was only against sentence and it was argued that a 16 year term was harsh and manifestly excessive.
Counsel for the appellant supported his submissions first by pointing out what he considered an error apparent on the record of proceedings. It was submitted that in arriving at the sentence of 16 years the trial Judge did not properly calculate the period the appellant spent on remand. Counsel stated that it was on record that the appellant was arrested and remanded in prison in December 2005 and he was convicted on 30th October 2008. Consequently, the period spent on remand was approximately 3 years. But on page 19 of the record of trial proceedings, the Trial Judge stated that the appellant had spent one year and ten months on remand. The judge then went on to state that he had taken the period spent on remand into account in arriving at the sentence of 16 years imprisonment.
In essence, Counsel for the appellant argued that had the trial judge correctly computed the period of pre-trial detention, he would have arrived at a lesser prison sentence than 16 years. Counsel referred Court to 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 the completion of his or her trial shall be taken into account in imposing the term of imprisonment.
He also relied on the case of Kabwiso Issa Vs. Uganda [2001- 2005] HCB 20 where the Supreme Court held, interalia, that:
Clause (8) of Article 23 of the Constitution of Uganda is construed to mean in effect that the period which an accused person spends in lawful custody before completion of the trial should be taken into account specifically along with other relevant factors before the Court pronounces the term to be served.
Appellant’s Counsel argued further that although on pg 18 of the trial proceedings the Prosecuting State Attorney submitted that the appellant had no previous criminal record and furthermore, the defence counsel mentioned several factors which should have been used in mitigation of punishment, the trial judge seems not to have taken the factors into account in arriving at the sentence. For example, the defence counsel mentioned the fact that the appellant had 8 children between 15 and 6 years, and also that the victim had not, as a result of the defilement, been infected with any venereal disease. Further still, the appellant himself had prayed for lenience on the ground that he had children for whom he was sole care taker since the children’s mother had died.
In essence Counsel argued that had the Trial Judge taken into account these various factors, he would have arrived at a lesser sentence.
Counsel prayed that this Honourable Court varies the sentence since under Section 132(1e) of the TIA, the court has powers to confirm or vary the sentence.
Counsel prayed that basing on the mitigating factors, this Court substitutes the sentence of 16 years with a sentence of 10 years.
He prayed further that in line with the constitutional provision on pre-trial detention, the period of 3 years (and not 1 year and 10 months) which the appellant spent on remand be taken into account with the effect of court reducing the 10 year prison period proposed above to a sentence of 7 years.
Counsel submitted that reduction of the sentence by the period spent on remand was in line with the decision of this Court in Nyasio Bumali vs. Uganada [2006] HCB Vol. 1 pg. 8.
On the other hand, Counsel for the State opposed the appeal and argued that sentencing is a matter of the trial court and the Court of Appeal will not interfere in a sentence unless it is illegal or excessively low or excessively so high as to occasion a miscarriage of justice.
He submitted that the sentence by the Trial Court in this case was neither illegal nor excessive in the circumstances. Counsel however conceded that mention by the State Attorney at the time of sentencing in the Trial Court, that the accused had spent 1 year and 10 months on remand, a period which was later mentioned by the Trial Judge on sentencing was indeed a matter of concern.
Counsel nevertheless submitted that the error was not fatal to the sentence which was passed by the trial Judge and that this Court should confirm the sentence of imprisonment for 16 years and dismiss the appeal.
Court Resolution.
The appeal is in respect of sentence. We have to consider whether as an appellate Court we should interfere with the sentence imposed by the learned trial judge.
The principles upon which an appellate court should interfere with a sentence were considered by the Supreme Court in the case of Kyalimpa Edward versus Uganda, Criminal Appeal No. 10 of 1995 .The Supreme Court referred to Rvs Haviland (1983) 5 Cr. App. R(s) 109 and held as follows:
“An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owoura Vs R. (1954) 21 E.A.C.A 126.” 21 EAC.A.270 And R.V Mohamedali Jamal (1948) 15 E.A.C.A 126.”
The offence for which the appellant was convicted was aggravated defilement as defined by Section 129 (3) and (4) (a) of the Penal Code Act,as follows:
Any person who performs a sexual act with another person who is below the age of fourteen years commits a felony called aggravated defilement and is on conviction by the High Court liable to suffer death.
As seen above the maximum sentence for that offence is death. We note that before the sentencing by the trial court, counsel for the accused then submitted on matters in favor of the appellant. The matters were repeated by counsel for the appellant before this Court. The Trial judge elaborately considered the matters that were in mitigation and those that were aggravating the case against the appellant. The Trial judge gave convincing justification for the sentence imposed on the appellant. There is nothing to show that based on both the aggravating and mitigating factors, the sentence imposed by the trial judge was manifestly excessive, harsh or mistaken in law to call for our interference.
However after careful perusal of the original file, we note that whereas the appellant was arrested and remanded in prison on 17th December 2005, his trial did not commence until 2008 and he was sentenced on 30 October 2008. Consequently, as observed by his counsel, the appellant spent close to 2 years and 10 months on remand, and not 1 year and 10 months as submitted by the prosecuting Attorney and as recorded by the Trial Judge when sentencing. For this reason, we substitute the sentence of 16 years imprisonment to 15 years.
Order of Court
The appeal having partially succeeded, it is ordered that the appellant is to serve a prison sentence of 15 years calculated from 30/10/2008, the date of sentencing.
Dated at Kampala, this 16 Day of JULY.2014
……………………………………………………………………………………..
HON. MR JUSTICE S.B.K KAVUMA, JA
………………………………………………………………………………………
HON. MR JUSTICE ELDAD MWANGUSYA, JA
………………………………………………………………………………………
HON. JUSTICE PROF. LILLIAN EKIRIKUBINZA TIBATEMWA, JA
16/07/14
