Nabaya v Uganda (Criminal Appeal 60 of 2012)

Court of Appeal · [2023] UGCA 350 · 2023 Sentence Reduced ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against sentence only from High Court conviction for aggravated defilement

Decision

Appeal against sentence succeeded; original sentence set aside and appellant resentenced to 18 years and 4 months' imprisonment running from date of conviction

The full judgment

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Holding

The Court of Appeal held that, under the sentencing regime applicable in 2011, the trial court was not bound to arithmetically deduct remand time but only to take it into account, since Rwabugande Moses v Uganda does not apply retrospectively. However, the trial Judge's statement that remand time would 'be taken into account' was ambiguous and futuristic, and did not effect an actual deduction. A sentence not accounting for remand time is illegal. Invoking section 11 of the Judicature Act, the Court set aside the sentence, found 20 years appropriate, and after deducting 1 year and 8 months on remand, sentenced the appellant to 18 years and 4 months' imprisonment.

Facts

On 19 May 2010 at Bunasomi village in Sironko District, the appellant performed a sexual act on his own daughter, a child of 10 years. He was indicted for aggravated defilement contrary to sections 129(3)(4)(a) and (c) of the Penal Code Act, convicted, and sentenced by the High Court at Mbale on 27 February 2012 to 20 years' imprisonment. The appellant had been arrested and remanded following his arrest in May 2010, and by the time of sentence had spent 1 year and 8 months in custody on remand. The trial Judge stated that the years spent on remand were 'to be taken into account' but did not arithmetically deduct any specific period from the sentence. The appellant, with leave of court, appealed against sentence only, contending it was manifestly excessive and that the remand period had not been properly deducted as required by Article 23(8) of the Constitution.

Issues

Whether the sentencing regime in force in 2011 required the trial court to arithmetically deduct the years spent on remand.
Whether the trial Judge in fact deducted the time the appellant spent on remand when imposing sentence.
Whether the sentence of 20 years' imprisonment was manifestly excessive.

Orders

The appeal succeeds on the above terms.
The sentence of the trial Court is set aside.
The Appellant shall serve 18 years and 4 months having deducted the 1 year and 8 months spent on remand.
The sentence shall run from the date of conviction.

Key headnotes

Sentencing — Time Spent on Remand — Article 23(8) — Non-retrospective Application of Rwabugande

The requirement in Rwabugande Moses v Uganda for arithmetic deduction of time spent on remand does not apply retrospectively; for sentences passed before that decision, it sufficed that the sentencing court took the remand period into account without performing an arithmetic deduction.

Sentencing — Account of Remand Time — Requirement of Clarity

A sentencing court must be clear and unambiguous in stating how the period spent on remand is accounted for; an ambiguous or futuristic statement that remand time is 'to be taken into account', without identifying the period, does not amount to taking remand time into account.

Sentencing — Illegal Sentence — Failure to Account for Remand Time

Any sentence that does not take into account the time spent on remand is illegal and may be set aside by an appellate court under section 11 of the Judicature Act, which then sentences afresh.

Sentencing — Appellate Interference with Sentencing Discretion

An appellate court will not interfere with a sentence imposed in the exercise of the trial court's discretion unless the sentence is manifestly excessive or so low as to amount to a miscarriage of justice, the court ignored a material consideration, or the sentence is wrong in principle.

Sentencing — Aggravated Defilement — Deterrent Sentences for Defilement by a Father

A father or guardian who defiles his own daughter deserves a deterrent sentence; guided by the principle of consistency, a sentence of 20 years' imprisonment is appropriate for aggravated defilement of a 10-year-old daughter.

Legislation cited (5)

Penal Code Act s.129(3)(4)(a) and (c)
Constitution of Uganda 1995 Article 23(8)
Judicature Act s.11
Court of Appeal Rules r.30(1)(a)
Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 para 6

Cases cited (18)

Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
Tindifa Moses v Uganda (Criminal Appeal No. 256 of 2011)
Musabuli Sedu v Uganda (Criminal Appeal No. 111 of 2011)
Mugerwa Paul v Uganda (Criminal Appeal No. 461 of 2018)
Mbazira Siragi and Another v Uganda (Criminal Appeal No. 7 of 2004)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Wamutabaniwe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
Sebunya Robert and Another v Uganda (Criminal Appeal No. 58 of 2016)
Bachwa Benon v Uganda (Criminal Appeal No. 896 of 2014)
Bonyo Abdul v Uganda (Criminal Appeal No. 7 of 2011)
Kaserebanyi James vs. Uganda, [2014] UGCA 89
Mutebi Ronald v Uganda (Criminal Appeal No. 38 of 2019)

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.