[2018] UGCA 107

## THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO 216 OF 2015

BYAMUKAMA JOSEPH}....................................

#### **VERSUS**

UGANDA}................................... 10

(Appeal from the decision of the High Court of Uganda at Rukungiri before His Lordship Mr. Justice Michael Elubu in High Court Criminal Session No. HCT – 011 – CR – CSC – 033 of 2015 delivered on the $3^{rd}$ June 2015)

### CORAM: HON. JUSTICE ELIZABETH MUSOKE, JA

# HON. JUSTICE CHEBORION BARISHAKI, JA

## HON. JUSTICE CHRISTOPHER IZAMA MADRAMA, JA

## JUDGMENT OF THE COURT

The Appellant was charged with the offence of aggravated defilement contrary to Section 129 (1), 3 and (4) (b) of the Penal Code Act Cap 120 Laws of Uganda, before Hon. Justice Michael Elubu at the High Court of Uganda Holden at Rukungiri. He was convicted on his own plea of guilty and sentenced to 30 years imprisonment. He now appeals to this court against sentence only.

At the hearing, the appellant was represented by Counsel Specioza Kentaro while the respondent was represented by Counsel Ndamurani Ateenyi, Senior Assistant Director of Public Prosecutions.

With leave of court sought and granted under Section 132 (1) (b) of the Trial on Indictments Act, Cap 23, we heard the appeal on one ground against sentence only. The sole ground of appeal is that:

The Learned trial Judge erred in fact to sentence the appellant to 30 years imprisonment which was a harsh sentence. 30

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It was submitted by learned counsel for the appellant that a sentence of 30 years $\mathsf{S}$ imprisonment imposed on the appellant was harsh.

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The brief facts of the case are that the appellant defiled his daughter of 10 years. He pleaded guilty to the offence. Before the incident in 2008, he had been in prison for attempted defilement for a period of 3 years imprisonment.

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- Counsel submitted that the appellant's act of pleading guilty to the offence exhibited $10$ remorse and the trial court ought to have imposed a lesser sentence in the circumstances. She relied on the case of **Ogarm Iddi v Uganda Criminal Appeal No.** 0182 of 2009. In that case, the victim was aged 13 years. The Court of Appeal upheld a sentence of 15 years' imprisonment. The Court of Appeal relied on the decision of the - Supreme Court in Kizito Senkula v Uganda Criminal Appeal No. 24 of 2001 where $15$ the victim was 11 years and the sentence of 15 years was held to be appropriate. She further cited Ninsiima Gilbert v Uganda Criminal Appeal No. 0180 of 2010 where the victim was 8 years old and the trial court sentence was reduced from 30 years imprisonment to 15 years imprisonment. - The appellant's counsel submitted that much as the victim is the child of the appellant, $20$ the sentence of 30 years imprisonment is harsh and excessive. She prayed that the sentence of 30 years imprisonment is reduced to 15 years imprisonment.

In reply, Counsel for the respondent opposed the appeal. He argued that the trial Judge took into account the fact that the appellant is a biological father of the victim and therefore there existed a relationship of trust, care and protection that the appellant $25$ breached. He noted that the appellant was a second time offender who had just served a sentence of 3 years' imprisonment for attempted defilement before defiling his own daughter of 10 years after chasing her mother away.

The respondent's counsel submitted that the case of **Ogarm Idi v Uganda** (supra) was distinguishable from the instant case because it did not have exceptionally aggravating 30 factors. In **Ogarm Iddi v Uganda** (supra) there is no evidence to show that the appellant was the biological father of the victim or a serial offender. At page 2 of the judgment in

**Ogarm Iddi v Uganda** (supra), it is stated that it is trite that an appellate court cannot interfere with the sentence of a trial court unless the sentence is illegal or based on a wrong principle or principles of the law. He submitted that the sentence of the trial court is legal, it was not based on a wrong principle of law and the learned trial judge did not misdirect himself on any principle of law neither did he overlook any material

fact. Counsel submitted that the sentence of the trial court is not harsh or excessive in 5 the circumstances of the appellant's case and in light of the aggravating factors referred to.

The Respondent's counsel further argued that the cases of Kizito Senkula v Uganda (supra) and Ninsiima Gilbert v Uganda (supra) relied upon by the Court of Appeal before arriving at its decision in Ogarm are distinguishable from the instant case. 10 Counsel further submitted that in light of the facts of this case and the offence for which the appellant was convicted, which carries a maximum sentence of death, the sentence of 30 years imprisonment was lenient in the circumstances. He invited this court to find the sentence of 30 appropriate and uphold the same.

We have carefully considered the facts and circumstances from which this appeal arises, 15 the submissions of counsel for the appellant and the respondent, the law and authorities cited.

The duty of Court of Appeal as a first appellate court under Rule 30 (1) of the Judicature (Court of Appeal Rules) Directions on any appeal from a decision of the High Court in the exercise of its original jurisdiction, is to reappraise the evidence and 20 draw inferences of fact. In the reappraisal of evidence, the court warns itself that it has neither seen nor heard the witnesses so as to draw inferences of fact from that. According to the East African Court of Appeal decision in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123, and the judgment of court read by Sir Clement De Lestang V-P, the conduct of an appeal from the High 25 Court in the exercise of original jurisdiction to the Court of Appeal may be by way of a retrial on matters of fact. In this regard, the Court of Appeal is not bound to follow the findings of fact of the trial judge but will review the evidence and may reach its own conclusion:

"Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally"

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The case of Selle and another v Associated Motor Boat Company Ltd and others $\mathsf{S}$ (supra) echoes an earlier decision of the East African Court of Appeal in Peters v Sunday Post Limited [1958] 1 EA 424, where Sir Kenneth O'Connor P cautions not to easily depart from findings of fact of the trial court when he said:

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"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing $10$ and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion." $15$

In this appeal we have carefully considered evidence the submissions of both counsel in that regard and there are no factual controversies worthy of determination. The appellant pleaded guilty and facts which included facts in aggravation of the offence were read out and the appellant agreed they were true. Unfortunately, for the appellant

- he did not mitigate the sentence by giving additional mitigating factors as we shall $20$ examine hereunder. This left a situation of scanty facts on the part of the appellant where the aggravating and mitigating circumstances presented were not subjected to serious trial process. The learned trial judge accepted the facts as true and that is the end of the matter. - Learned counsel for the appellant argued that the trial Judge erred in fact to sentence $25$ the appellant to 30 years imprisonment which was a harsh sentence. In passing sentence the learned trial judge observed as follows:

"The convict has on his own plea moved court to accept a plea of guilty. This however is a most appalling case calling for the condemnation of the court and society at large. The victim is an infant of 10 years old (and a) daughter of the convict and he repeatedly molested her. She has obviously suffered a severe trauma considering the repeated nature of the offence and the fact that it was her father, a person who she should trust would always protect her, who committed it. The victim also suffered physical trauma. The medical report shows she had lacerations. It is the duty of this court to protect these vulnerable children. I have noted from this and other sessions that offences of defilement by fathers of their daughters are rampant in this district. This calls for a special signal. The legal order must be restored. What is even more aggravating is that

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the convict is a repeat offender. He had served a sentence of three years for attempted defilement when he started defiling his daughter. The court has taken into account the 8 months that the convict has already spent on remand into consideration. This offence carries a maximum sentence of death and starting point of 35 years. In spite of the plea of quilt and because of the aggravated nature of the offence here, the convict is sentenced to 30 years imprisonment."

It was the argument of the counsel for the appellant that the appellant pleaded guilty to the charge of defilement of his biological daughter who was aged 10 years at the time. She stated that the fact that the appellant pleaded guilty was a sign of remorse and as such, the appellant ought to have been given a term of imprisonment less than 30 years. She cited the case of **Ogarm Iddi** (supra). In that case, the appellant defiled a 13 year old and was sentenced to 15 years imprisonment. On appeal, this court upheld the sentence and dismissed the appeal. We agree with counsel for the respondent that the authorities cited by counsel for the appellant are distinguishable from the instant case. The appellants in those authorities were first offenders as opposed to the appellant who had previously been convicted and served sentenced for attempted defilement. The jail

term did not reform him. The fact of his having been in prison for attempted defilement was not challenged. Secondly as a father he had a duty to protect and take care of the victim as contrasted to the other cases which did not involve biological daughters.

There are established principles of law that this court will not interfere with a sentence imposed by a trial court on the mere ground that the members of the court might have 25 passed a different sentence if they had tried the appellant. The court will only interfere firstly, where there is clear evidence that the trial judge acted upon wrong principle or secondly, where the trial judge overlooked some material factor. Thirdly, the Court of Appeal will interfere with the sentence where the sentence is manifestly excessive in view of the circumstances of the case. These principles were summarized by the East 30 African Court of Appeal in the case of Ogalo s/o Owoura v Reginam Criminal Appeal No. 175 of 1954. In that case, the appellant appealed against a sentence of 10 years imprisonment with hard labour for the offence of manslaughter and this is what the Court held:

"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not

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ordinarily interfere with the discretion exercised by a trial judge unless as was $\mathsf{S}$ said in *James v. R.* (1950) 18 EACA 147, "it is evident that the judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case:"

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Last but not least we have reappraised the evidence relied on by the learned trial judge. $10$ The facts read to the appellant after a plea of guilty was entered and as recorded are as follows:

The victim was 10 years old and a biological daughter. The accused had been married to the mother of the victim. During the year 2008, the accused served a three-year sentence on charges of defilement. In this period, his wife stayed in the marital home 15 taking care of the children as the appellant was in prison. On release from prison, the appellant developed a misunderstanding with his wife, the mother of the victim, assaulted her and sent her away. The wife left with other children and left the victim with her grandmother. In September 2014, the accused removed the victim from her grandmother and took her to stay with him where they were living in different rooms. $20$ After three weeks, the accused person went to the victim's bedroom, removed her

- knickers and performed a sexual act on her. The victim felt a lot of pain in the process and was threatened by the appellant not to reveal it to anyone. The appellant repeatedly had sexual intercourse with the victim until the victim narrated the ordeal to her aunt - who kept quiet about the matter. The victim then told her mother who checked her $25$ private parts and found that the victim had injuries. The appellant was reported to the police, arrested whereupon he denied having committed the offence. The victim was examined and found with a ruptured hymen, vulva and vaginal vault lacerations. The recorded evidence does not indicate how many times the victim was defiled in terms of - the number of days or occasions. The conclusion of the trial judge was that this offence $30$ had gone on for more than one occasion. We find not basis to defer from this finding.

The appellant was established to be 23 years old with a normal mental status. In aggravation of sentence, the fact that the appellant was a former convict who had served sentence for attempted defilement was supported by a warrant of committal of the Magistrates Court which had convicted and sentenced him. The appellant agreed with the above facts.

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The above facts were also presented in the aggravation of the offence whereupon the state attorney inter alia submitted that the offence of defilement was rampant and

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prayed for a deterrent sentence to send a clear message to the community. In $\mathsf{S}$ mitigation of sentence, this is what the appellant only said:

> "I request court for help so that I can serve and go back and help the children. I will ably serve that sentence".

We note that the sentence of 30 years is a lawful sentence and the maximum penalty for the offence of aggravated defilement is death. On whether the sentence is excessive in 10 the circumstances the learned trial judge took into account the unique facts of the case which we have noted above. These include the fact that the appellant is the biological father of the victim. Secondly, he had already served a 3 year term of imprisonment for attempted defilement before defiling his own daughter. The manner of commission of the offence by repeated sexual acts and the nature of injuries the victim suffered. He is 15 not a first offender. All these factors were taken into account before passing sentence and the learned trial judge clearly intended to pass a deterrent sentence.

Nonetheless, we have considered precedents in similar cases and taken into account the need to maintain similar sentences for similar cases.

According to the medical report, the appellant was 23 years at the material time. The 20 trial court did not take into account the age of the appellant which is a material factor to consider before sentencing (see Kabatera Steven v Uganda C. A. C. A No.123 of **2001**(unreported)).

In the Supreme Court case of Katende Ahamad v Uganda, Criminal Appeal No. 6 of

**2004**, the appellant defiled his biological daughter who was 9 years at the material time. 25 The appellant was sentenced to 10 years imprisonment after deducting the period of 2 and a half years spent on remand.

In the case of Babua Roland v Uganda Criminal Appeal No.303 of 2010, the appellant was married to the victim's aunt. The victim was under the care of the appellant and her aunt. The appellant was indicted and convicted of aggravated defilement and sentenced to life imprisonment. On appeal, this court found a sentence of life imprisonment too harsh and excessive and substituted the sentence for a term of 18 years' imprisonment.

Having considered the sentence of 30 years imprisonment imposed by the trial court, and taking into account that the trial court intended the sentence to be a deterrent 35 sentence, the range of sentences for offences of this nature in the precedents, the age

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of the appellant and the fact that he is a young man that needs to be given an 5 opportunity to come back to society and start a new life, we find that the sentence of 30 years is excessive.

We accordingly allow the appeal and set aside the sentence and substitute it with a term of 20 years' imprisonment to run from the date of conviction.

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HON. JUSTICE ELIZABETH MUSOKE, JA

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HON. JUSTICE CHEBORION BARISHAKI, VA

HON. JUSTICE CHRISTOPHER IZAMA MADRAMA, JA