The Court of Appeal has affirmed that it is the duty of the trial judge and not the prison authorities’, to deduct the period an accused person has spent on remand during sentencing.
The pronouncement was made in the case of Fulugensio Ssegirinya (appellant) v. Uganda, where the Court of Appeal upheld Ssegirinya’s conviction by the High Court for the aggravated defilement of a two-year-old girl but revised his sentence from 43 years to 40 years and 4 months after finding the trial Judge did not properly sentence him as he did not explicitly state and deduct the 2 years and 4 months period the accused had spent on remand.
The Court of Appeal Bench comprised of Deputy Chief Justice Richard Buteera, Justice Eva K. Luswata and Justice Oscar Kihika found that the trial judge had rightly convicted Ssegirinya based on circumstantial evidence, which included the testimonies of the victim’s mother and the Investigating Officer, as well as medical evidence. The Appellant’s claim that the trial Judge had convicted him on the basis of hearsay evidence was rejected.
The Court of Appeal then addressed the issue of sentencing.
While the original sentence of 43 years was found to be appropriate being within the range of sentences meted out in previous similar cases, the apex Court noted a procedural flaw in how the sentence was calculated.
The Court of Appeal found that the trial judge (Justice Dr. Flavian Zeija) while aware of the necessity for deducting the time the appellant spent on remand had omitted to expressly deduct the period thereby issuing a vague or ambigous sentence that left it to the prison authorities to make the necessary deduction.
The sentecing part of the trial Judge’s decision read:
“Court appreciates that the convict is a first offender and a young man. However, offences of the defilement are on the increase. The victim performed a monstrous act of defiling a girl of 2 years. The age of the victim is telling about the nature of the person before this court. He needs to be taken out of circulation in order to protect the innocent victims out there that may fall prey to his lustrous activities. In the result, I sentence him to 43 years in prison. The time he has been on remand shall be deducted from this period. I so order. The accused has a right of appeal within 14 days.“
The Court of Appeal found this part of the trial Judge’s decision “peculiar” in so far as it appeared to express his intention to deduct the period the accused spent on remand but he ended up not making the actual deduction.
Citing its previous decisions in the cases of Omundanihare Godwin vs. Uganda [C.A. Criminal Appeal No. 0176 of 2017] and Kabogere Patrick v. Uganda [C.A. Criminal Appeal No.083 of 2021] which relied on the case of Naturinda Tamson vs. Uganda [C.A. Criminal Appeal No. 13 of 2011], the Court of Appeal affirmed that;
“It is the duty of the sentencing judge and not the prison authorities to deduct the period spent on remand and give a clear unambiguous sentence that can then be lawfully executed.”
“It is not for the prison authorities to figure out what the sentencing Judge meant or intended to do. In this case, we find that the learned trial Judge issued an ambiguous sentence when he failed to deduct the remand period himself. The sentence is accordingly set aside.” the Court of Appeal ruled.
Parties: Fulugensio Ssegirinya v. Uganda Counsel: Henry Kunya (for the Appellant) and Hajjat Fatinah Nakafeero (for the DPP).
Benjamin Ahikiiriza is a legal writer and publisher of the Legal Reports Digital Media.