[2024] UGCA 328

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT GULU

## CRIMINAL APPEAL NO.34O OF 2OI4

# ADRIKO GEOFREY::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT Versus

UGANDA RESPONDENT

(Appeal from the decision of the High Court of Uganda at Lira before the Honorable Justice Yasin Nyanzi delivered on the 4th day of March 2013 in Criminal Session case No. 0037-2012)

# CORAM: HON. JUSTICE FREDRICK EGONDA NTENDE,JA HON. JUSTICE MARGARET TIBULYA, JA HON. JUSTICE MOSES KAWUMI KAZIBWE, JA

## JUDGMENT OF THE COURT

l. The appettant Adriko Geofrey was indicted with aggravated defilement contrary to section 129 (3) and ( ) (a) (c) ofthe Penal Code Act.

#### Backgrou nd.

2. The facts as accepted by the lower court were that the appellant on the 25tr'of September 2011 at Malisa Village in Yumbe District, had unlawful sexual intercourse with Ojaku Lilian who at that time was below 14 years of age. The victim who was a close relative of the appellant was sent to fetch water for him. She obliged but when she took the water to the appellant, he forcefully


dragged her into the house and inserted his male sexual organ into her. The victim made an alarm, but the appeltant covered her rnouth with his right hand. Nobody answered the alarm. He defiled her, but the victim later revealed what had happened. The case was reported to LC l, and later to the Police. The Appellant was subsequently charged, tried and convicted with Aggravated Defilement. He was sentenced to 20 years' imprisonment, hence this appeal.

3. The appeal is premised on one ground, that the Learned Trial Judge erred in law and fact by imposing a manifestly harsh excessive sentence of 20 years against the appellant and failed to subtract from the sentence the period spent on remand which led a serious miscarriage of justice to the prejudice of the Appellant.

### Representation.

4. The Appellant was represented by Mr Douglus Okot Odiek, while the Respondent was represented by M/s Marion Acio Caroline (Chief State Attorney) together with M/s Esther Zawedde (State Attorney).

#### Considerations.

5. We are alive to the principles that an appropriate sentence is a matter for the discretion of the sentencing judge, and that each case presents its own facts upon which a judge exercises his discretion. Further that the appellate court can only interfere with the sentence of the trial court if there is an illegality, that is, if the trial court acted contrary to the law or upon a wrong principle or overlooked a material factor. The appellate Court will also interfere if the said sentence is harsh and/or manifestly excessive. (See; Kyalimpa Edward versus Uganda Criminal Appeal No. l0 of 1995; Jackson Zita vs Uganda, Criminal Appeal No. 19 of 1995 (SC); Nalongo Nazziwa Josephine vs

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Uganda, Criminal Appeal No, 088 of 2009 (COA), and Kiwalabye vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

- 6. Bearing in mind the above principle, we shall proceed to re-evaluate the sentencing proceedings and the reasons given for the sentence imposed to determine whether there is any reason to interfere with the same. - 7. For the appellant, it was argued that the sentence of 20 years imprisonment for aggravated defilement was excessive and amounted to a miscarriage of Justice. Counsel invited the court to consider the mitigating factors which had been brought to the trial court's attention, and those laid down under Guideline 21 of the Sentencing Guidelines. These are; - a. the fact that the offender is a first offender with no previous conviction or relevant or recent conviction. - b. remorsefulness of the offender, - c. whether the offender pleaded guilty, - d. advanced or useful age ofthe offender, and - e. family responsibilities. - 8. Counsel submitted that the trial Judge did not put adequate weight on the fact that the accused was aged 23 years at the time of conviction, and that he was capable of reform. It was pointed out that the convict is older than the victim by 10 years. He was 22 years old and married with one child. Further that he cares for 6 defendant orphans of his deceased elder brothers. He had been on remand for I year and 6 months. The appellant is sorry for what he did and regrets it. - 9. The judge was also faulted for having failed to consider the principle of uniformity of sentences. - l0. We note that the sentencing record contradicts counsel's submissions that the Trial Judge did not consider the mitigating factors in issue. It is on record that

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during the sentencing proceedings the Trial judge stated that she had heard the mitigation prayers and submissions by the accused person and his advocate.

- I 1. He noted, however, that the offence of aggravated defilement had become a cycle of life in Arua Region. The judge noted that "there is need to protect society from the vice. This court has a duty to play its role by providing deterrent sentences to prevent further crimes. Light sentences like the one sought by the accused and his advocate would be interpreted [sicJ by society and take the dangerous act of defiling lightly. I have considered all the mitigating factors offered by the period of that time I year on remand, [sic] the family and society obligation on her, his future to be a reformed citizen. I however hold the view that such factors would have guided the accused into a better person. his temptation him to obey his emotion more than reason. fsic] I have not found him to be having reasonable mitigating factors from long custodial sentence. He breached the blood trust the victim had in him knew she would not be harmed by her own relative. She expected protection instead of harm. He is not kind to his own close relatives. Those were reasons for a long custodial sentence. he is sentenced to 20 years imprisonment ". [sicJ - l2. Clearly, the Judge considered the mitigating factors which were brought to his attention, but he determined that those factors were not reasonable. He also considered the period which the appellant had been on remand. - 13. As far as the aggravating factors are concerned, the sentencing judge considered the fact that aggravated defilement was a prevalent offence in Arua, and that there was a need for deterrent sentences. He also considered the fact that the appellant was the victim's relative, and that the appellant breached the blood trust she had in him.

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- l4. Based on the sentencing record therefore, the assertion that the sentencing judge did not give adequate weight to the mitigating factors which were brought to his attention is incorrect. It is only that in the judge's view, the aggravating factors outweighed the mitigating ones. - 15. The complaint that the learnedjudge did not deduct the 1 year and 6 months which the appellant had been on remand is without basis as well, since the learned judge considered that period. - l6.ln 2012 when the Appellant was sentenced, the Rwabugande Mosesl principles which require that the remand period should have been arithmetically deducted from the sentence which the court will have set, had not been laid down. It is therefore sufficient that the judge indicated that he had considered the Appellant's remand period. The Trial judge therefore acted within his prerogative. - 17. We, however, accept the submission that the leamed judge did not address his mind to the principle of uniformity of sentences. The record does not bear any evidence that he did. - lS. One of the principles of sentencing is that sentences must be consistent'?. In Baruku Asuman vs. Uganda, Court of Appeal Criminal Appeal No' 387 of 2014, this court, underscored the importance of consistency of sentences. - I 9. We have looked at the range of sentences for similar offences in order to determine whether the sentence of 20 years imprisonment for aggravated defilement was harsh and excessive as alleged by counsel for the appellant.

rRwabugande Moses Vs Uganda; Supreme Court Criminal Appeal 2512014.

²see Guideline 6, para c of the Constitution (sentencing Guidelines for courts ofjudicature) (Practice) Directions 2013.

- 20. In Candia Akim vs Uganda, Court of Appeal Criminal Appeal No.0l81 of 2009, this Court upheld a sentence of 17 years' imprisonment for the offence of aggravated defilement. The appellant was a stepfather of the l3-year-old victim. - 21. In Rugarwana Fred vs Uganda, SCCA No.39 of 1995 the Supreme Court upheld the appellant's sentence of l5 years for aggravated defilement ofa 5 year-old girl. - 22. We note that the sentencing range in the above similar cases is between 15 and l7 years. - 23. Based on the foregoing, we find the sentence of 20 years imposed on the appellant in this case harsh and excessive on account of its being out of range with sentences in similar cases. We therefore set it aside. - 24. Having taken into account both the aggravating and mitigating factors set out above and the range of sentences for the offence of aggravated defilement in the above cited authorities, we find a sentence of 18 years imprisonment appropriate in the circumstances of this case, - 25. However, since the appellant had spent a period of I year and 6 months on remand prior to his conviction, we deduct that period from the 18 years and sentence him to 16 years and 6 months imprisonment from the date of his conviction, that is,7'h March 2012.

ln conclusion, we allow the appeal against sentence in the above stated terms

We so order.

6 t Dated at Kampala this 27 day of November $\cdots \cdots 2024$

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**Fredrick Egonda-Ntende Justice of Appeal**

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**Margaret Tibulya Justice of Appeal**

Moses Kawumi Kazibwe **Justice of Appeal**