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Murogowabu v Uganda (Crim. Appeal No. 212 of 2015 and No. 449 of 2015; Criminal Appeal 212 of 2015)

Court of Appeal · [2023] UGCA 226 · 2023 Appeal Allowed (Sentence Recomputed) ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only from a High Court conviction for aggravated defilement
Decision
Sentence set aside on account of the trial Judge's failure to clearly deduct the remand period; appellant re-sentenced to 15 years and 1 month with effect from the date of conviction.

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Holding

The Court of Appeal held that the sentence of 17 years and 6 months for aggravated defilement of a seven-year-old by a person standing in loco parentis was not excessive and was, if anything, lenient, and that advanced age (70 years, below the 75-year threshold in the Sentencing Guidelines) was not a mitigating factor in the circumstances. However, the trial Judge had mentioned the remand period without clearly deducting it from a stated figure, rendering the sentence vague contrary to Article 23(8). The Court set the sentence aside, re-imposed 17 years and 6 months, deducted 2 years and 4 months spent on remand, and substituted a term of 15 years and 1 month from the date of conviction.

Facts

The appellant, a labourer aged about 70 who cohabited with the seven-year-old victim's grandmother and was alone with the child while the grandmother attended a funeral, lured the victim into his home and had unlawful sexual intercourse with her on 5 October 2011 at Kachwamba 1 Village, Ntoroko District. He warned the victim not to tell anyone. The next day her teachers noticed she was unwell and sent her home; a neighbour observed her walking with difficulty and, on inquiry, she disclosed the assault, which was reported to police. The appellant denied the offence, claiming he had been framed by the grandmother after learning his wedded wife was returning. He was convicted of aggravated defilement and sentenced by the High Court to 17 years and 6 months' imprisonment, and appealed against sentence only.

Issues

  1. Whether the sentence of 17 years and 6 months' imprisonment imposed for aggravated defilement was harsh and manifestly excessive.
  2. Whether the trial Judge properly accounted for and deducted the period spent on remand as required by Article 23(8) of the Constitution.

Orders

  • The sentence of seventeen years and a half is set aside.
  • Pursuant to s.11 of the Judicature Act, the appellant is sentenced to seventeen years and a half.
  • The period of 2 years and 4 months spent on remand is deducted.
  • The appellant will serve a sentence of 15 years and 1 month imprisonment with effect from 17 February 2015, the date of conviction.
  • The appeal succeeds.

Key headnotes

Sentencing — Appellate Interference with Sentence
An appellate court will not interfere with the sentencing discretion of a trial judge merely because it would have imposed a different sentence; it may intervene only where the sentence is illegal, founded on a wrong principle of law, results from the trial judge's failure to consider a material factor, or is harsh or manifestly excessive in the circumstances.
Sentencing — Consistency and Comparison of Similar Cases
In exercising its sentencing discretion a court must bear in mind the need to maintain consistency and uniformity of sentence by comparing similarly situated appeals, while remaining cognizant that no two cases are alike and each presents its own peculiar circumstances.
Sentencing — Mitigation — Advanced Age
Advanced age is treated as 75 years under paragraph 4 of the Sentencing Guidelines; an offender aged 70 is not of advanced age, and where the offender stood in loco parentis to a young victim, age will not operate as a mitigating factor.
Sentencing — Deduction of Remand Period — Article 23(8) of the Constitution
Article 23(8) of the Constitution requires that the period spent on remand be taken into account and deducted from the sentence; a sentence that merely mentions the remand period without clearly deducting it from a stated figure is vague and liable to be set aside and re-imposed with an arithmetical deduction.

Legislation cited (6)

  • Penal Code Act Cap 120 s.129(3) and (4)(a)
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11
  • Judicature (Sentencing Guidelines for Courts of Judicature) (Practice) Directions regulation 9(4)
  • Judicature (Sentencing Guidelines for Courts of Judicature) (Practice) Directions paragraph 4
  • Judicature (Sentencing Guidelines for Courts of Judicature) (Practice) Directions paragraph 19

Cases cited (18)

  • Rugarwana Fred v Uganda (Criminal Appeal No. 39 of 1995)
  • German Benjamin v Uganda (Criminal Appeal No. 142 of 2010)
  • Taremwa Apollo v Uganda (Criminal Appeal No. 0193 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • David Chandi Jamwa v Attorney General (Constitutional Petition No. 26 of 2021)
  • Obwalatum Francis v Uganda (Criminal Appeal No. 30 of 2015)
  • Ntare Augustine v Uganda (Criminal Appeal No. 53 of 2011)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 222 of 2003)
  • Seruyange Yuda Tadeo v Uganda (Criminal Appeal No. 80 of 2010)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Bashir Ssali v Uganda (Criminal Appeal No. 40 of 2003)
  • Aharikundira v Uganda (Criminal Appeal No. 27 of 2015)
  • Othieno John v Uganda (Criminal Appeal No. 174 of 2010)
  • Musabuli Sedu v Uganda (Criminal Appeal No. 11 of 2011)
  • Geoffrey Okello v Uganda (Criminal Appeal No. 34 of 2014)
  • Mutebi Ronald v Uganda (Criminal Appeal No. 383 of 2019)
  • Tiborushange Emmanuella v Uganda (Criminal Appeal No. 655 of 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.