Rusongwa Medard v Uganda (Criminal Appeal No. 0282 of 2019)

Observed later treatment

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

On an appeal against sentence only, the Court of Appeal held that a custodial sentence which merely states in general terms that the remand period was considered, without arithmetically deducting the specific time spent on remand, is ambiguous and illegal under Article 23(8) of the Constitution and must be set aside. Following Rwabugande Moses v Uganda, the court found the trial judge's 40-year sentence for aggravated defilement defective on this ground alone, and also faulted the failure to weigh the appellant's advanced age as a mitigating factor. Invoking section 11 of the Judicature Act, the court set aside the sentence and substituted 30 years' imprisonment, less the remand period.

Outcome

Appeal allowed; 40-year sentence set aside and substituted with 30 years' imprisonment less remand, the appellant to serve 27 years, 9 months and 27 days from 11 July 2019.

Facts

The appellant, an elderly man of about 60 to 70 years residing at Kyebitaka village, Hoima District, was indicted for aggravated defilement. On 3 April 2016 the victim's mother, working in her garden, heard her baby crying in a nearby tobacco store and, on investigating, found the appellant naked and on top of the victim, a girl aged about five years, having sexual intercourse. She raised an alarm and neighbours responded. The appellant was arrested, examined and found to be an adult of sound mind; the victim was examined and found to have a minor slit on the hymen. The appellant pleaded not guilty, was tried, convicted and sentenced to 40 years' imprisonment. The trial court's sentencing order acknowledged the appellant's advanced age but expressed the sentence in general terms regarding the remand period, without specifically deducting it.

Issues

1. Whether the sentence of 40 years' imprisonment imposed by the trial court was manifestly harsh and excessive.
2. Whether the trial judge erred by failing to arithmetically deduct the period spent on remand as required by Article 23(8) of the Constitution.
3. Whether the trial judge erred by failing to consider the mitigating factor of the appellant's advanced age.

Orders

• The appeal is allowed.
• The sentence of 40 years' imprisonment imposed by the trial court is set aside.
• The appellant is sentenced to 30 years' imprisonment.
• The pre-trial remand period of 3 years, 3 months and 3 days is deducted, the appellant to serve 27 years, 9 months and 27 days from the date of conviction, 11 July 2019.

Rules and key headnotes

Legislation cited (7)

• Penal Code Act s.129(3)(4)(a)
• Judicature Act s.11
• Trial on Indictments Act s.132
• Judicature (Court of Appeal) Rules r.43(3)(a)
• Judicature (Court of Appeal) Rules r.30(1)
• Constitution of Uganda art.23(8)
• Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, Guideline 15

Cases cited (14)

• Ssekandi Muhammed v Uganda (Criminal Appeal No. 364 of 2016)
• Kagoro v Uganda (Criminal Appeal No. 82 of 2011)
• Babua Ronald v Uganda (Criminal Appeal No. 303 of 2010)
• Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
• Lukwago Henry v Uganda (Criminal Appeal No. 0036 of 2010)
• Mutebi Ronald v Uganda (Criminal Appeal No. 0383 of 2019)
• Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
• Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
• Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
• Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
• Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
• Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
• Kabuye Senvewo v Uganda (Criminal Appeal No. 2 of 2002)
• Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Mulera Milton v Uganda (Criminal Appeal 421 of 2015)

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