Lukwago v Uganda (Crim Appeal No. 165 of 2009)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that a trial judge is bound by Article 23(8) of the Constitution to take into account the period an accused spent on remand when sentencing, and to state so unequivocally per the Supreme Court guidelines in Katende Ahamad v Uganda. The trial judge erred by omitting any reference to the appellant's remand period of 1 year and 8 months, regardless of whether counsel raised it. The appeal succeeded on that ground. However, absent a cross-appeal by the State, the court could not enhance the sentence despite the seriousness of the aggravated defilement offence, and maintained the nine-year sentence while accounting for the remand period.

Outcome

Appeal allowed on the ground concerning the remand period; sentence maintained at nine years' imprisonment with the remand period taken into account.

Facts

The appellant, Lukwago Ivan, was convicted on his own plea of guilty in the High Court on an indictment of aggravated defilement of a 9-year-old girl, contrary to sections 129(3) and (4)(a) of the Penal Code Act. The trial judge sentenced him to nine years' imprisonment, stating only that such a sentence would suffice without referring to the period the appellant had spent on remand. The appellant had spent 1 year and 8 months in custody before conviction. He appealed against sentence, contending that the trial judge failed to take the remand period into account as required by Article 23(8) of the Constitution. The State opposed, noting that the appellant's trial counsel had not raised the remand period and that the sentence was already lenient, but conceded the court could review and account for the remand period.

Issues

1. Whether the trial judge erred by failing to take into account the period the appellant had spent on remand prior to conviction when imposing sentence, contrary to Article 23(8) of the Constitution.
2. Whether the appellate court could enhance the sentence in the absence of a cross-appeal by the State.

Orders

• The appeal succeeds on the ground that the trial judge failed to consider the remand period.
• Taking into account the 1 year and 8 months spent on remand, the appellant is sentenced to nine (9) years' imprisonment.

Rules and key headnotes

Legislation cited (4)

• Constitution of Uganda 1995 art.23(8)
• Penal Code Act s.129(3)
• Penal Code Act s.129(4)(a)
• Penal Code Act s.123(1)

Cases cited (1)

• Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)

The original judgment as reported. Read the original PDF before relying on any passage.