[2023] UGCA 388

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA CRIMINAL APPEAL NO. 0284 OF 2016

(*Coram: R. Buteera, DCJ; C. Bamugemereire & E. Luswata, JJA*)

### ABINGOMA DEFONZI :::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA ::::::::::::::::::::::::::::::::::: (Appeal from the decision of John Eudes Keitirima, J, in Criminal Session Case No. 89 of 2014 delivered on 16^th September 2016 at *Masaka High Court)*

### JUDGMENT OF COURT

## **Introduction**

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The appellant was convicted of the offence of Aggravated Defilement contrary to Sections 129 (3) & (4) (a) (b) & (c) of the Penal Code Act, **Cap 120, and sentenced to 40 years' imprisonment.**

#### **Background**

It was the prosecution case that the appellant had since the month of July 2013 had sexual intercourse with the victim, N. E. aged 10 years on different occasions. She was his stepdaughter. That on the $6^th$ day of January 2014, the appellant had sexual intercourse with the victim once again and on that occasion, the victim decided to tell her mother who in turn reported the matter to the Local Council leadership of the area. The matter was reported to Kalangala Police Post and the appellant was arrested and charged with aggravated defilement.

The victim was medically examined and found with semen-like discharge, reddish vulva and bruises. The appellant was medically examined and found to be HIV positive.

The appellant was tried, convicted and sentenced to 40 years' imprisonment. Being dissatisfied with that decision, he sought the leave of this court to appeal against sentence only on the following sole ground of appeal;

That the learned trial Judge erred in law and fact when he sentenced the appellant to 4o years' imprisonment, which was manifestly harsh and excessive in the circumstances.

## Representation

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At the hearing of the appeal, the appellant was represented by Mr. Andrew Tusingwire, on state brief, while the respondent was represented by Mr. Sam oola, Senior Assistant Dpp, from the Office of the Director of Public Prosecutions. The appellant was present in court. Both counsel filed written submissions, which were adopted by this court upon their application.

# Case for the appellant

Counsel for the appellant submitted that paragraph 19 (2) of the Constitution (sentencing Guidelines for courts of Judicature) (practice Directions) 2013, enjoins a sentencing court in an offence whose maximum punishment is death, to consider the aggravating and mitigating factors in paragraphs 20 and 21 in order to determine the appropriate sentence in accordance with the sentencing range.

Counsel submitted on the duty of this court to ensure consistency while sentencing in cases with similar facts. He cited Oumo Ben alias Ofwono v uganda; sccA No. 20 of zol-0, where a sentence of 26 years' imprisonment was upheld for the appellant who had defiled his daughter of 3 and half years.

Counsel referred to Tiboruhanga v Uganda; CACA No. 655 of ZOl4, where this court imposed a sentence of 22 years' imprisonment where the appellant was HIV positive and had defiled a l3-year-old girl. He prayed for a sentence of 15 years'imprisonment to be considered in this instant case.

# Case for the respondent

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Counsel for the respondent submitted that the appellant committed ^a very serious offence which carries a maximum sentence of death and that the appellant would have been sentenced to death or life imprisonment but the trial Judge spared him.

It was counsel's submission that the appellant subjected the victim who was only 10 years old to a very painful and sordid act of sexual intercourse and habitually had sex with her. Counsel added that the appellant breached the trust the victim had in him as a parent.

counsel cited Bonyo Abdul v Uganda; sccA No. o7 of 2011, where the Supreme Court upheld a sentence of life imprisonment where the appellant who was HIV positive had sexual intercourse with a girl aged 14 years.

He also cited Bacwa Benon v uganda; court of Appeal criminal Appeal No. 869 of 2O14, where the appellant who was aged 38 years, had sexual intercourse with a girl aged 10 years. He was at the time cohabiting with the victim's mother. That on the day in question, the appellant returned home and found the victim alone as her mother had gone to the garden. The appellant lured the victim inside the house where he forcefully removed her knickers, lifted her, placed her on the bed and had sexual intercourse with her and that this was not the first time he was doing it. The victim's mother immediately reported to the LCI Chairperson of the village and the appellant was arrested. The appellant was found to be HIV positive, so was the victim. He was tried, convicted and sentenced to life imprisonment. His appeal to this Court against sentence was dismissed.

counsel contended that the facts of the instant case compared favorably with those of Bacwa (supra) and that they were almost on all

fours. He submitted that no compelling reason had been advanced to warrant interfering with the sentence of 40 years' imprisonment against the appellant. To him, the sentence was deserving and he urged the Court to leave it undisturbed.

He prayed that the sentence against the appellant be upheld and the appeal be dismissed.

# Consideration of this court

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It is our duty as the first appellate court to re-appraise the evidence at the trial court and come to our own conclusion. See Rule 30 (1) (a) of the Judicature (Court of Appeal) Rules. However, we have to bear in mind that we did not have the opportunity to see and hear the witnesses as they testified. See Selle and Another v Associated Motor Boat Co; [19681 EA 123, Pandya v R; [19571 ne,336 and Kifamunte Henry v Uganda; Criminal Appeal No. 10 of 1997 (SC).

The appellant in this case faulted the trial Judge for meting out ^a sentence of 40 years' imprisonment that he alleged was harsh and excessive in the circumstances.

The circumstances under which an appellate court may interfere with the trial court's sentencing discretion are well settled. See Kyalimpa Edward v Uganda; S. C. Appeal No. LO of 1995.

As an appellate Court, we are constrained not to interfere with ^a sentence imposed by the trial Court, merely because we would have imposed a different sentence had we been the trial Court. We can only interfere with sentence where it is either illegal, or founded upon ^a wrong principle of the law, or a result of the trial Court's failure to consider a material factor, or harsh and manifestly excessive in the

circumstances of the case - (see Kizito Senkula v Uganda SCCA No.24 of 2001 and Bashir ssali v uganda -sccA No.40 of 2003).

We note that although this Court has the powers to interfere with ^a sentence imposed by the lower Court, the instances in which it may do so are limited.

We are also alive to the fact that in the exercise of its discretion during the sentencing of a convict, while being cognizant of the fact that no two cases are the same, Court must always have in mind the need to maintain consistency or uniformity of sentence. (See Aharikundira v Uganda SCCA No. 27 of 2015).

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In the instant case, the appellant was sentenced to 40 years' imprisonment on a count of Aggravated Defilement of his stepdaughter who was 10 years old.

In Bacwa Benon v Uganda; CACA No. 869 of 2014, this Court confirmed a sentence of life imprisonment upon the appellant who pleaded guilty to aggravated defilement of a lO-year-old girl while he was HIV positive.

similarly, in Bonyo Abdul v uganda; sccA No. 07 of 20tt the supreme Court confirmed a sentence of life imprisonment upon the appellant who was HIV positive and had defiled a l4-year-old girl.

In Anguyo siliva v Uganda GACA No. 38 of 2014 the appellant who was HIV positive was convicted of Aggravated Defilement and sentenced to 27 years' imprisonment.

Further, in Kaserabanyi James v Uganda SCCA No. 10 of 2014 the appellant was convicted on his own plea of guilty to the offence of aggravated defilement and sentenced to Life Imprisonment, which was confirmed by the Supreme Court.

In the instant case, the learned trial Judge considered both mitigating and aggravating factors and observed that the actions of the appellant were heinous to say the least. He observed further that the appellant had broken the trust of someone who regarded him as a father and he had also exposed the victim to the killer disease, rendering her future hopeless. He further pointed out that the offence was rampant in the region and there was need to pass a deterrent sentence. For those reasons, he found that the sentence of 40 years' imprisonment would be appropriate in the circumstances.

The appellant in this case was a stepfather to a 10-year-old girl and had on several occasions had sexual intercourse with her while threatening to kill her if she reported to anyone. We have also considered the fact that the appellant was HIV positive hence he exposed the victim to this incurable disease. We are therefore of the view that the learned trial Judge gave a justified sentence. The sentence of 40 years' imprisonment would serve the cause of justice in this case. We have no reason to interfere with the same.

We thus uphold the sentence of 40 years' imprisonment and dismiss the appeal.

We so order

Dated at Kampala this $\overbrace{0}^{\mathscr{F}}$ Dated at Kampala this $\overbrace{0}^{\mathscr{F}}$ ...............2023

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skitio

Richard Buteera<br>Deputy Chief Justice

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*toobeee*

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**Catherine Bamugemereire**<br>**Justice of Appeal**

Eva K. Luswata $\frac{1}{2}$