[2022] UGCA 24

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram: Elizabeth Musoke, Barishaki Cheborion, & Hellen Obura JJA)

### CRIMINAL APPEAL NO. 387 OF 2017

#### FRENDO ABUBAKER LOLEM :::::::::::::::::::::::::::::::::::: $\mathsf{S}$

### **VERSUS**

UGANDA ::::::::::::::::::::::::::::::::::: [Appeal from the decision of the High Court of Uganda sitting at Moroto (Hon. Justice Stephen Mubiru) delivered on 30^th September 2017 in Criminal Session *Case No. HCT-CR-SC-123-2015*

### JUDGMENT OF THE COURT

The appellant was indicted with the offence of Aggravated Defilement contrary to section 129(3), (4) (a) and (b) of the Penal Code Act, convicted and sentenced to life imprisonment.

On 30^th day of October, 2014 at Kaabong hospital female ward, Kaabong Town 15 Council in Kaabong District, the appellant had unlawful sexual intercourse with Hamida Joan a girl under the age of 18 years while being HIV positive. To prove its case prosecution presented four witnesses and relied on documentary evidence which included police form 24A marked PEX1, police form 3A PEX 2 and police bond 20 form PEX3.

The appellant pleaded not guilty to the indictment and gave sworn statement. He relied on the victim's statement made to the police which was marked DEX1. The learned trial judge convicted the appellant and sentenced him to life imprisunment.

During the hearing ofthe appeal, the appellant abandoned the other grounds irr the supplementary memorandum of appeal and with leave of court granted under Section 132 (1) (b) of the Triar on Indictments Act, the appe ant now appeals to the Court ofAppeal against sentence only on the sole ground that:

The learned trial judge erred in laut and fact tuhen he sentenced. the appehant to a harsh and excessiue sentence in the circwmstances of the case.

# 30 Representations

At the hearing of the appeal, Ms. Amojong Kevin represented the appellant on state brief while Ms. Babra Masinde a chief State Attorney in the office of the Director of Public Prosecutions (Dpp), represented the respondent.

35 Due to the coVID- 19 pandemic restrictions, the appellant was not iir court physically but attended the proceedings via video link to prison. Both parties sought, and were granted leave to proceed by way of written submissions.

## Appellant's submissions

counsel for the appelrant faulted the trial judge for meting on the appelrant a very severe sentence. He submitted that the seriousness of the offence in the instant case

Poge 2 of 14

⁴⁰ was mitigated by a number of factors which didnot caI for a life sentence issued bv the trial Court.

counsel further submitted that the sentence passed by the learned trial judge didn,t conform to the consistency principle which requires sentences as much as circumstances may permit to be similar to those passed in previously decided cases having a resemblance of facts as the one in which sentence is being passed and the appellate court, may if called upon to do so, be justified in interfering with a sentence which contravene this principle. She cited Aharlkundira yustina vs uganda, scA No. 27 of 2015 where court held that "rt is the duty of this court ,\_thile d.eating with appeals regarding sentencing to ensure consistency raith cases that haue similar facts.

50 consistencg is auital pincipre of a sentencing regime. It is deeptg rooted. in the ruIe of Iaut and requires that the latus be applied taith equality and uithout unjustifiable differentiation".

According to counsel, the court of Appeal has time and again reduced sentences that have come close to the starting point of 35 years imprisonment suggested by the sentencing guidelines as being harsh and excessive. she cited Birungi Moses vs Uganda C. A Crlm. Appeal No. 1?Z of 2OI-4 to support her argument.

she further submitted that this court has jurisdiction under Section li of the Judicature Act, cap 13 to determine a fresh sentence where one of the trial court is set aside for being harsh and excessive and prayed that the sentence of imprisonment for life be substituted with 1 I years imprisonment.

### Respondent's reply

The respondent opposed the appeal and submitted that the trialjudge arrived at the sentence basing on the facts and evidence before him. on the consistency of sentences, counsel cited Katureebe Boaz & another vs uganda sccA No.o66 of 2o1l for the proposition that consistency in sentencing is neither a mitigating nor an aggravating factor to render a sentence passed illegal after considering the mitigating and aggravating factors. That sentencing lies in the discretion of Court which may consider sentences imposed in cases of a similar nature.

Counsel submitted for the respondent that the learned trial judge considered both 7o the mitigating and aggravating factors. That he specifically noted that despite the mitigation, the circumstances of the case were sufficiently grave to warrant ^a deterrent custodial sentence. That one of the aggravating factors highlighted was that the appellant well knowing that he was HIV positive decided to have unprotected sex with the victim, manifesting a callous disregard for life. She contended that the 75 aggravating factors far outweighed the mitigating factors and that the learneri trial judge was justified to impose that sentence.

It was further submitted for the respondent that all the ingredients of the rercvant offence were proved beyond reasonabre doubt and that the trial court properly directed its mind to the facts, the evidence and the law and reached the correct conclusion. counsel prayed that the appeal be dismissed, and the appellant,s sentence of life imprisonment be confirmed.

In rejoinder, it was submitted for the appellant that although sentencing is at the discretion of court, the discretion ought to be exercised judiciously and should be guided by the Constitution sentencing guidelines.

85 counsel further submitted that the learned trial judge focused only on aggravating factors and totally ignored the mitigating factors which included the appellant being a first time offender and a young man of 39 years

counsel further submitted that paragraph 6(g) ofthe sentencing guiderines provides that court must take into account the circumstances prevailing at the time the offence was committed up to the time of sentencing. To the appellants counser, the trial court never considered that the victim had dropped out of school for 3 years, that the prosecution was not certain ofher age, that the yictim was painted as being innocent yet she admitted to watching pornography and had capacity to lure any man into sexual acts and that at the time she testified, she had settled with the father of her child yet she was 17 years old.

counsel further submitted that court is mandated to consider, before imposing ^a custodial sentence, the values, norms and aspirations of the people within the community per paragraph 9(b) of the guidelines. That marriage in Kaabong District at the age of 1o is an acceptabre way of life among the people. She referred to the National population and Housing Census 2014 on Kaabong District.

### Resolution

105 110 we have carefully read the submissions of both counsel and the authorities cited. we have also perused the record orappeal. As the 1"r appelrate court, it is our duty to reconsider all evidence that was adduced before the triar court and come to our own conclusions of fact and law while making allowance for the fact that we neither saw nor heard the witnesses. See Rure so(l) (a) of the Judicature (court or Appeal Rules) Directlons, Baguma Fred. Vs llganda SCCA ,lVo. Z oJ 2OO4, K{umante Henry Vs Ugand.a SCC:. A jVo. 70 o! 7992, and D. R pandga Vs R [195fl EA 3O6.

The complaint of the appellant was that the triat court ignored the principle of consistency and as a result passed a harsh and manifestly excessive sentence of rife imprisonment for the offence of aggravated defilement. For that reason counsel prayed that the sentence be substituted with 1 1 years imprisonment.

115 120 It is now settled that for the court of Appear, as a first appelrate court, to interfere with the sentence imposed by the trial court which exercised its discretion, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law; or that the trial court failed to take into account an important matter or circumstance; or made an error in principle; or imposed a sentence which is harsh and manifestly excessive in the circumstances. see Kamga Johnson waus,,,.uno

Vs Uganda, Supreme Court Crlnlnat Appeal No,76 of 2OOO (Unreported); Klroalabge Bernard. Vs Ilganda, Supreme Court Crlmlnal Appeal No. 143 oJ 2OO7 (unreported); Wamutabaneue Jdmlru Vs llganda, Supreme Court

## 'J.25 Criminal Appeal No. Z4 oJ 2OO7 and Rwabugande Moses Vs llgand.a, Supreme Court Criminal Appeat No. 25 oJ 2014,

It is trite that no two crimes are identical however court should try as much as possible to have consistency in sentencing for the ends ofjustice to be met and as often said, for justice to be seen to have been done it is the duty of this court wh ^e dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. consistency is a vital principle of sentencing regime. It is deeply

rooted in the rule of law and requires that the laws be appried with equality and without unjustifiable differentiation See: Aharrkundrra yustrn vs. uganda (supral,

The record does not show, that the learned trial judge took into consideration the principle of consistency. In our view, had the sentencing judge taken into account

- 135 the uniformity principle probably would not have sentenced him to imprisonment for the rest of his life. The sentence of life imprisonment passed against the appelrant was not a result of proper exercise of discretion because it failed to take into account decisions of the courts ofjudicature for similar offences. This resulted in the imposed sentences falling out of range with sentences imposed in cases of similar nature. - 140 In rejoinder counsel for the appelant introduced new aspects in her submission which were not raised by the respondent in reply. she submitted that the trial court never considered the mitigating factors, circumstances prevailing at the time the offence was committed up to the time of sentencing and varues, norms and aspirations of the people within the communitv. - ¹⁴⁵ Page 42 of the record shows that the, defence counsel submitted in a ocutus. In sentencing the appelrant, the rearned trial Judge stated that; ,,r haue taken into a.ccount the mitigating factors as erucidated bg the conuict and his counser. Despite that mitigation, the circumstance of the case are sulftcientry graue to warrant ^a deterrent custodial sentence.... " - ¹⁵⁰It is clear that the rearned trial judge took into consideration the appe ant-s mitigating factors and noted that the aggravating factors outweighed the mitigating factors.

155 counsel submitted that the trial judge did not alrow a reasonable period not exceeding seven days to determine the appropriate sentence for the offender as stipulated in paragraph 12 of the sentencing guidelines. In our view, sentencing the appellant on the same day he was convicted of the offence neither prejudiced the appellant nor occasioned a miscarriage ofjustice.

160 Regarding the non-consideration of circumstances prevailing at the time the offence was committed up to the time of sentencing as stipulated in paragraph 6 (g) of the constitutional sentencing Guiderines, the record shows that while sentencing the appellant the judge took into consideration the said circumstances when he stated that; "... she as resurt rost her auntie's schorarship and d.ropped out of schoor. Hauing been rejected and aband.oned bg her famitg, she took a d.esperate decision to engage in a sexual relationship uith another man for sustenance and. as a result she is nou; a child mother at the tender age of 17 years..." ¹⁶⁵

we find the appellant counsel's submission at this stage that the age of the victim was not ascertained and that the man who impregnated the victim was not prosecuted as afterthoughts. Be that as it may, we will re-evaluate the relevant evidence on record so as to ascertain the age of the victim.

1,70 The PW4 Hamida Joan, the victim gave oral evidence that she was 17 years at the time she was testifying which was in 2orz , this means at the time the offence was committed she was l4 years.

PW2 Dr. Kenneth Nyombi who examined the victim on 15rh october 2014 stated in his lindings that the victim was estimated to be aged l s years based on her dentition.

1,7 5 The assessors who saw the victim testify in court were ofthe view that she was aged ¹⁵years at the time of commission of the offence and thus rg years old at the time she testified.

PW3, Joyce Ilukori an Auntie to the victim testilled that she was born in the year 1999. This placed her at the age of r5 years at the time the offence was committed.

180 while analyzing the ingredient of the age of the victim after referring to the above evidence the learned trial judge stated as follows:

"l find that this ingredient has been proued begond. reasonable doubt. Hamida Joan uas a girl under 1B Aears as at 13th October 2014."

185 The learned trial observed the victim and was also in proper position to assess her age and he stated that the victim was below the age of 1g years at the time the offence was committed.

In our view, owing to the evidence analyzed. on record, we find the evidence of the Auntie Joyce Pw3, Pw2 Dr. Kenneth Nyombi more believable. coupled with the observation of the assessors, we are of the strong view that the victim was 15 years at the time the offence was committed. However, in as much as the victim was aged ¹⁵years, what was of essence in the instant case was that the victim was belcw the age of 18 years and the appellant was HIV positive which factor aggravated the offence from simple defilement to aggravated defilement as stipulated in section ¹²⁹ (3) of the Penal Code Act which provides;

## ¹⁹⁵ Sectlon 129 (31 ofthe Penal Code Act provldes;

## Defilement of persons under eighteen years ofage

(3) Any person who performs a sexual act with another person who is ^below the aee of eishteen years ln anv of the circu mstances specified in subsection (41 conlmlts ^afelonv called assravated defil ent and is, on conviction by the High Court, liable 200 to suffer death

4) The circumstances referred to in subsection (3) are as follows\_

(alwhere the person against whom the offence is committed is below the age of fourteen years;

# (bl uthere the ollender is inJected with the Human rmmuno defi.ciency virus 2os Erv;

(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed;

(d) where the victim of the offence is a person with a disability; or

(e) where the offender is a serial offender.

- ²¹⁰ In light of the above provision, the rearned triar judge was not required to ascertain whether the victim was below 14 years. what was sufficient was that she was below ¹⁸years of age and there existed a factor that aggravated the case from simple defilement to aggravated defilement which was the fact that the appellant was HIV positive. - 21,5 on the submission that the learned trial judge did not take into consideratiorr the values, norms and aspirations of the people within the community of Kaabong while sentencing the appellant based on the Nationar popuration and Housing census ²⁰¹⁴Kaabong District, counsel for the appellant contended that marriage at the age of 10 is an acceptable way of life among the people of Kaabong. - ²²⁰ In Uganda, the majority age for a man or woman to get married is rg years and ztbove as set forth in article 31 of the constitution. In addition, under article 157 (1) (c), ^achild means a person under the age of 1g years. These constitutional stipulations cannot be watered down by varues, norms and aspirations of the people within ^a

,') ( given community. Instead, communities should aspire to put into effect the aforementioned provisions so as to fight and bring to an end child marriages for the sake of the life, wellbeing and the future of the girl child. This court cannot therefore condone or give effect to such values, norms and aspirations which are contrar.y to what the Constitution stipulates.

Relying on the principre of uniformity and consistency, in Trboruhanga Emmanuer

230 235 vs uganda, court of Appeal crimlnal Appeal No. o6ss of\_2o1^4, this court stated that the sentences approved by this court in previous aggravated defilement cases, without additional aggravating factors, range between 11 years to 15 years. The court considered the fact that the appellant was HIV positive as an additional aggravating factor because by committing a sexual act on the victim while HIV positive, the appellant exposed her to the risk of contracting HIV/AIDS. The court imposed a sentence of 2Syears imprisonment.

In Anguyo siliva v. uganda, court pf Appeal criminar Appear No.o38 of 2or4, the appellant was 32 years old at the time he committed the offence of aggravated defilement of a girl aged 14 years. The appellant knew that he was HIV positive when he committed the offence. Having taken into account the period of 2 years, ereven months and 2 days that the appellant had been in lawful custody before sentence, this court sentenced him to serve 21 years and 2g days in prison.

In olara John Peter v. uganda, court ofAppear crrminal Appeal No.3o of2oro, the appellant was convicted of aggravated defilement of a girl aged 14 years on his own plea of guilty. He was 29 years old and knew that he was HIV positive. He ²⁴⁵

appealed against a sentence of 16 years complaining that it was manifestly excessive in view of the fact that he pleaded guilty. This court considered that the victim was exposed to the danger of contracting HIV and confirmed that the sentence of 16 years' imprisonment was neither manifestly excessive nor harsh in the circumstance of the case.

#### Decision:

In view of the foregoing, the appeal against sentence succeeds. The sentence of the High Court of life imprisonment upon conviction for aggravated defilement is set aside. After taking into consideration all the aggravating and mitigating factors on record, the period which the appellant spent on remand and to ensure consistency in sentences. We substitute the sentence of life imprisonment with 20 years imprisonment to run from the date of conviction.

We so order.

Dated at Jinja...... ......... this .. $\ldots$ 2022.

$\mathcal{O}$

Elizabeth Musoke

#### **JUSTICE OF APPEAL**

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Cheborion Barishaki

## JUSTICE OF APPEAL

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Hellen Obura

### JUSTICE OF APPEAL