[2024] UGCA 174

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASAKA

(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)

# CRIMINAL APPEAL NO. 0179 OF 2017

………………………………APPELLANT KASIITA TADEO::::::::::::::::::::::::::::::

#### **VERSUS**

#### UGANDA:::::::::::::::::: RESPONDENT

[Appeal from the decision of the High Court of Uganda at Masaka (Hon. Justice Dr. Flavian Zeija) dated 18^th May 2017 in Criminal Session Case No. 083 of 2014]

### **JUDGMENT OF THE COURT**

#### Introduction

The Appellant was indicted and convicted of the offence of Aggravated defilement contrary $11$ to Section $129(3)(4)(a)$ and (b) Penal Code Act. He was sentenced to 43 years' imprisonment. It was alleged that on the 17^th day of June 2013 at Nandere Landing in Site in Masaka District, the accused performed a sexual act with a girl who, at the time, was seven years old.

#### **Background Facts**

- 21 The facts of the case as admitted by the trial Court are on or about the 17^th day of June 2013, the victim Nalule Betty had been sent by her mother to collect dry cow dung to be bunt in their home overnight to repel mosquitoes. While looking for the cow dung, the appellant grabbed Nalule Betty and performed a sexual act with her. - While bathing her, the mother to the victim identified sperms around her private parts, and 31 legs. The appellant was later identified by the victim.

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Medical evidence revealed that the victim had bruises in her private parts which were $4]$ consistent with forced sexual intercourse. The accused was arrested and charged and later indicted and sentenced as above thus this Appeal

## **Grounds of Appeal**

- $5]$ In the Memorandum of Appeal filed in court on 13^th May 2024, the Appellant set forth two grounds of appeal, namely: - The Learned Trial Judge erred in law and fact when he ignored the fact that $i)$ there was no evidence that the Appellant had performed a sexual act with the victim, and thereby convicted the Appellant of aggravated defilement. - The Learned trial Judge erred in law and fact when he sentenced the Appellant ii) to 43 Years' imprisonment, which sentence is illegal, harsh and excessive in the circumstances.

# **Representation**

- At the hearing of the appeal, Mr. Sam Sekyewa, learned Counsel, appeared for the 61 Appellant on State brief; while Mr. Brian George Kalinaki, Assistant Director of Prosecutions in the office of the Director of Public Prosecutions (DPP), appeared for the Respondent. The Appellant was present in court. - The parties, with leave of the Court, relied on their written submissions as their legal 71 arguments in support of their respective cases. As such, the resolution of the appeal is based on the written submissions.

# Duty of the Court

8] The appeal before us is against both conviction and sentence. As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the trial court and come to our own conclusions of fact and law while making allowance for the fact that we neither saw nor

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heard the witnesses testify. (See: **Rule 30** (1)(a) of the **Judicature** (Court of Appeal) Rules) Directions, S. I 13-10; Fredrick Zaabwe vs. Orient Bank Ltd, Supreme Court Civil Appeal No. 4 of 2006; and Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997.

91 We shall bear in mind the above principles as we resolve the grounds of appeal in the order set out by the parties.

#### <u>Ground one – Identification of the appellant</u>

101 Ground one was couched as follows: -

> The learned trial Judge erred in law and fact when he ignored the fact that there was no evidence that the Appellant had performed a sexual act with the victim, and thereby [wrongly] convicted the Appellant of aggravated defilement.

# Appellant's submissions on ground one

- Regarding ground one of the appeal, Counsel for the Appellant contended that the trial $11$ Judge did not wholesomely examine all the evidence pertaining the identity of the person who defiled the victim. That the evidence on the court record indicates that the victim did not immediately report the incident to any person. That when the victim disclosed the names of the person who defiled her to PW1, she referred to him as the 'son of Frank' yet the Appellant at the trial clearly stated that he was not the 'son of Frank' but that his father's name is Bukenya Ezra. - $12]$ The additional evidence pointed out by the appellant, which the trial Judge did not consider was that the victim told Court that she did not know the appellant before the incident. - 13] Counsel further contended that PW3 told deliberate falsehoods on oath while giving her testimony intended to mislead Court to believe that she saw the Appellant defiling the victim at Bukakata.

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Counsel concluded had the learned trial Judge wholesomely considered the evidence on $14]$ record, she would have come to a different conclusion acquiting the Appellant of the offence of aggravated defilement.

# Respondent's Reply on ground one

- $15]$ In reply, Counsel for the Respondent stated that the Appellant was properly identified as the one responsible for the defilement of the victim as per the corroboration of the testimony of PW3, Nakalema Grace, the Victim's mother who testified that the victim identified the appellant when she saw him. - $16]$ That the victim herself in her testimony identified the appellant in Court and repeated that she had shown the Appellant to her mother while they were going to buy food from the market. - $17]$ Counsel for the Respondent further argued that the sexual act was further confirmed by the medical form which was admitted into evidence as PE1 and showed that the most probable cause of bruising and discharge is sexual assault. - 18] Counsel concluded that with all the above evidence, the trial Judge properly evaluated the evidence and reached a correct conclusion that the Appellant performed a sexual act on the victim.

### **Resolution of Ground One**

- 191 We have reviewed the evidence before the trial Court and the resultant judgment as we are required to do as a first appellate court. From the very outset of his judgment, the trial Judge correctly set out the ingredients which the prosecution had to prove in order to secure a conviction for the offence of aggravated defilement contrary to section 129(3) and (4)(a) of the Penal Code Act (PCA) namely: - 1. That there was performance of a sexual act upon the victim.


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- 2. That the victim was under the age of 14 years at the time of the offence. - 3. Participation of the accused in the performance of the sexual act. - $20]$

Counsel for the Appellant has rightly not attempted to fault the trial Court's findings in respect of the first two ingredients. We are likewise satisfied with the evidence on the court record and the trial Court's analysis and findings in respect thereof.

- $21]$ The gist of the Appellant's complaint in the instant matter is whether the evidence on the court record was sufficient to satisfy the trial court that the Appellant was properly identified as the one who performed the sexual act on the victim on 17.06.2013. - The law on identification is settled. The court ought to satisfy itself from the evidence $22]$ whether the conditions under which the identification is claimed to have been made were favourable or difficult. And that in considering whether the favourable and unfavourable conditions existed, the court should particularly examine the length of time the witness observed the assailant, familiarity of the witness with the assailants, the quality of light, and material discrepancies in the description of the accused by the witness. See: Jamada Nzabaikukize Vs Uganda, Supreme Court Criminal Appeal No. 01 of 2015; and Abdulla Nabulere Vs Uganda Criminal Appeal No. 9 of 1978. - 23] In her testimony, the victim's mother, PW3 Grace Nakalema, stated that on 17^th June 2013, she sent the victim then aged 7 years, and her younger sister then aged 4 years, to go and collect dry cow dung after their return from school. This was around 6PM. The dry cow dung is used to repel mosquitoes. On their return from collecting the cow dung, she tried to bathe the victim but realised she had semen on her and her vagina and on thighs. She contacted her neighbour who was also the Secretary for Women Affairs of their Village Council (LC1) who likewise checked the child and confirmed that the child was defiled. PW3 asked the child, and she was scared. PW3 went to the school where the victim was attending Primary one, St. Benard Bukakata, and informed them. The school started investigating. After a few days when PW3 was at home, the appellant came around. The victim told her that that was the man who defiled her. PW3's husband called the police and

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the appellant was arrested. At that time, PW3 did not know the names of the appellant. She got to know his names when he was arrested. She had not seen him there for a long time.

- $24]$ In cross examination, PW3 stated that she used to see the appellant collecting plastics. Further, that the appellant was identified to her by the victim as the culprit. - $25]$ In re-examination, PW3 stated that the case was reported to the police after about three days of the victim being defiled. - 26] The victim testified on oath before the trial Court as PW4 after a voir dire was conducted. At the time of being defiled she was only seven years. She stated that she did not know the Appellant by name before the incident but clearly identified the Appellant when he came to buy food at her parent's home. That on the fateful day, as she was collecting cow dung to burn to repel insects, she was attacked and sexually violated by the Appellant in the presence of her younger sister. While crying in court, PW4 stated that she feared to report the matter to her mother as she assumed they would beat her. PW4 informed court that she told her head teacher and class teacher about the incident and was later taken to the hospital and examined. - 27] In his evidence, the appellant denied having defiled the appellant. He said that he used to collect cowries shells which were used for chicken feed. That he had gone to Nansere to call the Chairman to weigh the shells he had gathered. When he was walking, the mother of the victim called him. When he turned he was told that he had defiled her child on Monday of that week. People gathered and wanted to beat him. He was arrested. He denied ever buying snacks from the place of the victim's mother. - When dealing with the evidence of the victim, the trial Court was alive to the special need 28] for it to caution itself when dealing with the evidence of PW4 as a single identifying witness, and the legal requirement for corroboration as PW4 was a child of tender years who, after a voire dire, gave sworn evidence at the trial. The trial Court found that the victim identified the appellant both before his arrest and at the trial. Second, the victim told the story to her

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Page 6 of 11 teachers after she was sexually assaulted thereby ruling out any memory lapses or forgetfulness.

- 291 With regard to the need for corroboration, the trial Court found PW4's evidence to be corroborated by the medical evidence (Police for 3A) from Ssesimba Umar showing that there was a foul smell from the vagina and bruised genitals. The medical officer testified that the bruises were caused by sexual intercourse. This evidence is proof that there was defilement. Police Form 3A was admitted in evidence. - 30] Further, PW4's assault was recognised by her mother who saw semen and blood on her clothes while bathing her in the evening. The victim's mother then rushed her to the women's representative of the Village Local Council (LC1) soon after the incident who confirmed the defilement and forwarded her to police. - We are satisfied with the analysis of the evidence by the trial Court and the conclusion that 31] the Appellant was properly identified as the perpetrator and squarely placed at the scene of the crime. - With regard to the specific complaint that PW3 told deliberate falsehoods on oath while 32] giving her testimony intended to mislead Court to believe that she saw the Appellant defiling the victim at Bukakata, this is not the case but was a direct translation in transcription. In the court record PW3 stated that:

"I know the accused. I saw him when he committed this offence at Bukakata. He used to collect old bottles and plastics. I know Nalule Betty. She is my daughter."

33] In the result, ground one fails.

Jox Jox

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## Ground 2 – Gravity and illegality of the sentence

341 Ground two was couched thus:

> The Learned trial Judge erred in law and fact when he sentenced the Appellant to 43 Years' imprisonment, which sentence is illegal, harsh and excessive in the circumstances.

- 351 Counsel submitted that this ground was twofold. First, that the sentence was passed without taking into consideration the time spent on remand which rendered the sentence illegal. - Second, that the sentence as meted out by the learned trial Judge was harsh and excessive 36] in the circumstances of this case. - 37] With respect to the issue of legality of the sentence, Counsel for the respondent conceded that the remand period was not taken into account by the trial Judge. He thus prayed that this court invokes its mandate to deduct the remand period from the 43 years' imprisonment term. - With respect to the 2^nd aspect of the complaint, Counsel for the Respondent disagreed with 381 the Appellant's submissions and urged this court to find that the 43 years' imprisonment term was in the same range as that of sentencing guidelines. - 391 The sentencing order of the trial Court was as follows:

"Defilement is an offence on the rise, more than 80% of the cases in this court are on defilement. The victim was 7 years she was defiled though she was not murdered, her ......... was murdered. She will live with that psychological trauma the rest of her life. She was crying while testifying in court. Her mother too was, shedding tears. That is a sign of great grief. Court needs to protect these young children from human monsters that take advantage of young girls as their pray. In the result, I sentence the convict to 43 years in prison. The period he has been on remand should be taken into account [Emphasis ours]

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Sad. Hon. Dr. Flavian Zeija Judge."

- 401 The wording of the trial Judge to the effect that "I sentence the convict to 43 years in prison. The period he has been on remand should be taken into consideration" does not meet the standard set out in Article 23(8) of the Constitution requiring the court to take into account the remand period when sentencing a convict. See: **Kabwiso Issa Vs Uganda**, Supreme Court Criminal Appeal No.7 of 2002. Indeed, we commend the respondent's Counsel for conceding in that aspect. - Accordingly, we are satisfied that the sentence of the trial court was illegal for contravening $41]$ Article 23(8) of the Constitution. This ground alone is sufficient to dispose of the appeal. The sentence of the trial court is hereby set aside. We shall now proceed to sentence the Appellant afresh pursuant to **Section 11** of the **Judicature Act** which provides as follows:

## '11. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated'

- $42]$ In our exercise of the above mandate, we have considered the mitigating factors presented before the trial court. These include: the appellant's age of 18 years at the time of commission of the offence, a first offender and capable of reform. - $43]$ We have also considered aggravating factors as presented before the trial court. These include: the grief caused to the victim who was still crying 4 years after the incident at the trial, the age of the victim at the time of commission of the offence of 7 years, and the fact that sexual offences were rampant in the area which calls for a deterrent sentence. - $44]$ We have also considered the range of sentences in some of the decisions of this Court in similar cases of aggravated defilement. In **Apiku Ensio vs Uganda [2021.] UGCA 15**, the appellant was convicted of aggravated defilement and sentenced to 25 years' imprisonment. The victim was under 14 years, dumb and with mental disability. This court found a sentence of 20 years' imprisonment appropriate and upon deducting the period spent on remand, the appellant was sentenced to 17 years and 1-month imprisonment.


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- $45]$ In **Byera vs Uganda [2018] UGCA 61**, the appellant who was 39 years old was convicted of the offence of aggravated defilement and sentenced to 30 years' imprisonment. The victim was $3^{1/2}$ years old and a stepdaughter to the appellant. This court found the sentence of 30 years harsh and excessive. In substitution thereof, a sentence of 20 years' imprisonment was found to be appropriate and upon deducting the period spent on remand, the appellant was sentenced to 18 years and 4 months' imprisonment. - 46] In Sseruyange vs Uganda CACA No. 080 Of 2010, where the victim was 9 years, this Court imposed a sentence of 27 years upon the appellant who was 24 years at the time of commission of the offence. - In Benywanira Emmanuel vs Uganda, Court of Appeal Criminal Appeal No. 0120 Of $47$ **2018** where the appellant had pleaded guilty to aggravated defilement of a victim estimated to be 4 years, on appeal this Court found that the sentence of 32 years was legal and that there was no basis for setting it aside. - 48] In **Kabagambe Yoweri vs Uganda CACA No. 659 Of 2015**, the appellant, who was 20 years old while the victim was 11 years, pleaded guilty of aggravated defilement and on appeal this Court did not interfere with the sentence of 22 years' imprisonment that was imposed by the trial court. - 491 In Nshemeire Denis Vs Uganda, Court of Appeal No. 131 of 2014 this court (Egonda-Ntende, Catherine Bamugemereire and Christopher Madrama, JJA) found the sentence of 18 years' imprisonment to be appropriate in the circumstances. The appellant in the said appeal was 30 years at the time he defiled the child aged 5 years. - 50] In Abale Muzamil Vs Uganda, Court of Appeal Criminal Appeal No.0039 of 2014, this court confirmed a sentence of 19 years' imprisonment for the offence of aggravated defilement. In that case, a neighbour defiled the victim who was aged 9 years at the time of the offence.

$51$ In light of the mitigating and aggravating factors as presented before the trial court and decided cases set out herein above, we consider the term of 20 years' imprisonment as the appropriate sentence in the circumstances of this case. From that sentence, we deduct the period of about four years spent by the Appellant in pre-trial remand. Accordingly, the Appellant shall serve a term of 16 years commencing from the 18^th May 2017, the date of conviction.

## Disposition $1$

- 1. The conviction of the appellant is upheld. - $2.$ The sentence imposed by the High Court is hereby set aside. - 3. The appellant shall serve a term of 16 years commencing from the 18^th May 2017, the date of conviction

## We so order.

Delivered at Masaka and dated this 17^th day of July 2024.

EN OBURA **Justice of Appeal MUZAMIRU MŮTANGULA KIBEEDI Justice of Appeal**

MOSES KAWUMI KAZIBWE **Justice of Appeal**

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