Wakilii

Kanakulya v Uganda (Criminal Appeal 238 of 2019)

Court of Appeal · [2023] UGCA 318 · 2023 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from a High Court conviction entered on a plea of guilty
Decision
Appeal partly allowed; 35-year sentence set aside and substituted with 25 years' imprisonment, less remand, leaving 23 years, 3 months and 10 days from the date of conviction.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a plea of guilty to aggravated defilement of a five-year-old by an HIV-positive offender, the Court of Appeal held the 35-year sentence was not illegal: it was passed in March 2015, before Rwabugande Moses v Uganda (11 March 2017), which has no retrospective effect, so the trial judge was not required to deduct the remand period arithmetically and correctly applied the Article 23(8) interpretation then in force. However, measured against comparable sentences and given the appellant was a first-time offender who pleaded guilty, 35 years was manifestly harsh and excessive. The sentence was set aside and substituted with 25 years, less the remand period, leaving 23 years, 3 months and 10 days. Appeal partly allowed.

Outcome

Appeal partly allowed; 35-year sentence set aside and substituted with 25 years' imprisonment, less remand, leaving 23 years, 3 months and 10 days from the date of conviction.

Facts

On 14 June 2012 at Namabwere Village, Iganga District, the appellant, who was HIV positive, performed a sexual act with N.A., a girl aged five years. He was charged with aggravated defilement, pleaded guilty, and on 30 March 2015 the High Court at Iganga convicted him and sentenced him to 35 years' imprisonment. The trial judge stated that the period the appellant had spent on remand (since 9 June 2012) was deducted from the sentence but did not carry out the arithmetic. The appellant appealed against sentence only, contending that the sentence was illegal for failure to deduct the remand period and was manifestly harsh and excessive.

Issues

  1. Whether the sentence of 35 years' imprisonment was illegal for failing to deduct the period the appellant spent on remand.
  2. Whether the sentence of 35 years' imprisonment was manifestly harsh and excessive and should be set aside.

Orders

  • The 35 years' imprisonment sentence found manifestly harsh and excessive and set aside.
  • A sentence of 25 years' imprisonment substituted under section 11 of the Judicature Act.
  • The period spent on remand deducted, leaving a term of 23 years, 3 months and 10 days running from the date of conviction on 30/05/2015.
  • The appeal partially succeeds.

Rules and key headnotes

Sentencing — Deduction of remand period — Retrospectivity of Rwabugande Moses v Uganda
The requirement to arithmetically deduct the period spent on remand laid down in Rwabugande Moses v Uganda has no retrospective effect and does not apply to sentences passed before it was delivered on 11 March 2017.
Sentencing — Article 23(8) of the Constitution — Taking remand period into account
For sentences passed before Rwabugande Moses v Uganda, the obligation under Article 23(8) of the Constitution to take into account the period spent on remand did not require the trial court to apply a mathematical formula deducting the exact period.
Sentencing — Appellate interference with sentencing discretion
An appellate court will not interfere with a trial court's sentencing discretion unless the sentence is illegal, the trial judge acted on a wrong principle or overlooked a material factor, or the sentence is manifestly harsh and excessive in the circumstances of the case.
Sentencing — Aggravated defilement — Manifestly harsh and excessive sentence
A sentence of 35 years' imprisonment for aggravated defilement imposed on a first-time offender who pleaded guilty is manifestly harsh and excessive when measured against comparable sentences, and may be reduced to 25 years before deduction of the remand period.
Sentencing — Plea of guilty as a mitigating factor
A plea of guilty is a recognised mitigating factor in sentencing under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013.

Legislation cited (7)

Cases cited (25)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 14 of 2015)
  • Ntambala Fred v Uganda (Criminal Appeal No. 34 of 2015)
  • Anguyo Robert v Uganda (Criminal Appeal No. 38 of 2014)
  • Aharikundira Yustina v Uganda (Supreme Court Criminal Appeal No. 27 of 2015)
  • Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
  • R v Haviland (1983) 5 Crim. App. R 109
  • Kizito Senkula v Uganda (Supreme Court Criminal Appeal No. 24 of 2001)
  • Kabuye ... Senvewo vs. Uganda SCCA No. 2 of 2002
  • Katende Ahamad v Uganda (Supreme Court Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Supreme Court Criminal Appeal No. 17 of 2010)
  • Asuman Abele v Uganda (Supreme Court Criminal Appeal No. 66 of 2016)
  • Karisa Moses v Uganda (Supreme Court Criminal Appeal No. 23 of 2016)
  • Sebunya Robert & Anor v Uganda (Supreme Court Criminal Appeal No. 58 of 2016)
  • Byamukama Herbert v Uganda (Supreme Court Criminal Appeal No. 21 of 2017)
  • Nashimolo Paul Kibolo v Uganda (Supreme Court Criminal Appeal No. 46 of 2017)
  • Ogalo s/o Owoura v R (Criminal Appeal No. 175 of 1954)
  • James v' R' (1950) 18 E'A'C'A' L47
  • R' V' Shershewsky' (1912) c.c'A. 28 T'L'R' 364
  • Anguyo Siliva v Uganda (Criminal Appeal No. 38 of 2014)
  • Musabuli Sedu v Uganda (Criminal Appeal No. 111 of 2011)
  • Nkurunziza Julius v Uganda (Criminal Appeal No. 12 of 2009)
  • Lubanga Emmanuel v Uganda (Criminal Appeal No. 124 of 2009)
  • Olara John Peter v Uganda (Criminal Appeal No. 30 of 2010)
  • Ederema Tom v Uganda (Criminal Appeal No. 554 of 2014)

Full judgment

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Kanakulya v Uganda (Criminal Appeal 238 of 2019) [2023] UGCA 318 (7 November 2023)
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.