[2024] UGCA 359

-Despite alibi, the appellant was<br>placed at the scene by the victim -Sentence set aside for not<br>deducting Remand period. - Resentence under 541 of the<br>Judicotive tet

## THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 405 OF 2019 [CORAM: BUTEERA, DCJ; GASHIRABAKE; KIHIKA, JJA] KATONGOLE LIVINGSTONE:::::::::::::::::::::::::::::::::::: **VERSUS**

#### **UGANDA :::::::::::::::::::::::::::::::::::**

(Appeal against Judgment of the High Court at Mpigi |Kawesa J| Criminal Session Case *No. 13 of 2018 delivered on 27^th September 2019)*

#### **JUDGMENT OF COURT**

- 1] The Appellant was convicted of the offence of Aggravated Defilement contrary to Section 129 (3) (4) (a) Penal Code and sentenced to 22 years' imprisonment. The Appellant was dissatisfied with the decision of the trial court and filed an appeal to this court on the following grounds; - 1. The learned Judge erred in law and fact when she failed to adequately evaluate, appraise purported identification parade prosecution evidence alongside appellant's alibi defense evidence occasioning a miscarriage of justice thereby wrongly convicted Appellant of aggravated defilement. - 2. The learned Judge erred in law and fact when she failed to adequately evaluate appraise uncorroborated created circumstantial prosecution evidence alongside appellant's alibi

defense evidence occasionihg a miscarriage of justice thereby wrongly convicted Appellant of aggravated defilement.

3. The learned Judge erred in la.w and fact when she imposed upon Appellant harsh excessive custodial imprisonment of 22 years without deducting remand period.

#### Background

2l On the 28 /7 I 2Ol7 at about 1 :00 am, the victim was sleeping in the sitting room of Aunt's house with her sister, Nasuna Shadia, aged 9, Angella MugerwaT years, Joan Nakawuki, 12 years and Serena 10 years. The Appellant ca.me and pushed the door open and entered the house. When they raised an alarm, he ran away. The Appellant later came back and banged the door open and entered the house. He grabbed the victim lifted her up and held her neck and started to squeeze it. The sisters raised an alarm calling their grandmother who was sleeping at that time, but the Appellant hurriedly carried tJ,e victim to Godi's garden and defiled her. The victim later got up and retufned home while cryrng and she found people gathered at home.

### Representation

3l At the hearing of the appe"l, Yt. Seith Rukundo appeared for the Appellant while the Respondent was represented by Ms. Nakafeero Fatinah. Both parties filed written submissions which were adopted as their legal arguments.

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### Appellant's submissions

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- 4l Mr. Seith Rukundo submitted that the learned Judge failed to adequately evaluate the prosecution evidence regarding the identification parade alongside the appellant's alibi. Counsel argued that the identification parade was not conducted in accordance with rules and practices in police form 69 and in accordance with the principle in R VsMwango S/O Mawao 1953 EACA 29.1n addition, that PW 4 Nalwere Sylivia was not accorded opportunity to pick the suspect she had identified on 2817 /2OL7 performing a sexual act on her. - 5l Counsel relied on the decision in Nyanzi Steven Vs Uganda, SCCA No. 16 of 1998 (1999 KALR 68f for the proposition that where prosecution alleges evidence that the accused was elsewhere at material time, the trial court must evaluate judicially with reasons to show why one or the other is acceptable. Counsel submitted that the trial Judge wrongly dismissed the appellants alibi without giving reasons. The evidence of PW4 Nalwere Sylivia was not corroborated by any other evidence and did not positively identify the Appellant. - 6l Counsel submitted that the prosecution evidence was marred with grave inconsistencies and contradictions, which should have led to an acquittal. The evidence was only circumstantial which could easily be fabricated since there was no eye witness.

#### Respondent's submissions

- 7] Counsel submitted that the evidence relied on by the trial Judge to convict the Appellant in this case was the evidence of PW4, PWs, PW3 and PWl who identified the Appellant as the person who came to their room twice that night and carried away the victim and defiled her. - 8l The victim (PW4) testified on oath that she knew the Appellant prior to the day the offence was committed and properly identified him as the one that defiled her. The victim's evidence gives an account of the period of observation, previous knowledge of the Appellant by the victim, the availability of the Tadooba light in the room as the Appellant carried the victim away, and also the proximity between the victim and the Appellant. - 9l Counsel relied on the decision in Abdallah Nabulere Vs Uganda, SCCA NO.9/ L978, in which the Supreme court guided that when the quality of identilication is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no other evidence to support the identification evidence. In the instant appeal, all the factors favoring correct identification were present and the witness remained firm even during cross examination confirming that the Appellant defiled her.

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10] Counsel relied on the evidence of PWl, PW3 and PWS who all consistently corroborated each other's testimony and stated that they knew the appellant prior.,He was a fish monger and was the one who entered their house that night dressed in a red shirt, black trouser and a hat and carried away the victim thus destroying the Appellant's alibi. Counsel relied on the decision in Bumbo V Uganda, SCCA NO. 28l L994 for the notion that once an accused person has been positively identified during the commission of a crime, his claim that he was elsewhere must fail. Counsel submitted that the Appellant was squarely placed at the scene of crime by the prosecution evidence of identification and was rightly convicted by the ledrned trial Judge.

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- 111 Counsel relied on the Supreme Court case of Mulindwa Samuel V Uganda, SCCA NO. 22ll20l4 in which the supreme court guided that failure to hold an identification parade is not fatal to the conviction of an accused where the other evidence sufficiently places the accused at the crime scene. - 121 With regard to ground 3, counsel submitted that an appellate court should only interfere with a sentence imposed by the trial court where the sentence is illegal or unless court is satisfied that the sentence imposed by thg trial judge was manifestly so excessive to amount to an injustice. Counsel conceded to the legality of sentence, the learned trial Judge having failed to deduct the remand period froryr the Appellant's sentence of 22 years' imprisonment.

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131 With regard to severity of sentence, counsel submitted that the maximum penalty for aggravated defilement is death and under the 3'd schedule of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the starting point for aggravated defilement is 35 years' imprisonment and the sentencing range is 3O years to death. Counsel argued that the sentence of 22 years meted out to the appellant was not manifestly harsh and court rightly directed itself on the law and applied it to the facts.

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## Consideration of the Appeal

- 14] We recall that this is a first appellate court and as such, the law enjoins it to review and re-evaluate the evidence as a whole, closely scrurtini ze it, draw its own inferences, and. come to its conclusion on the matter. This duty is recognrzed in Rule 3O(U (a) of the Rules of this Court. - 30. Power to reappraise euidence and to take additional euidence. - (1) On anA appeal from a decision of the High Court acting in the exerctse of its oiginal jurisdictiory the court maA- - (a) reappraise the euidence and draw inferences of fact; and - (b) in its discretion, for sufficient reasory take additional euidence or direct that additionat euid€nce be taken bg the tial court or bg a commissioner. - ¹⁵¹The cases of Pandya v R [1954 EA 336 and Kifamunte Henry v Uganda, SCCA No. 1O of 1997 have also succinctly re-stated

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this principle. We have borne these principles in mind in resolving this appeal.

- 161 The appellant argued grounds 1 and 2 concurrently and faulted the learned trial Judge for having disregarded the Appellant's alibi and convicted him of the offence of Aggravated Defilement. - 17] The Appellant raised an alibi that on 27th August 2OL7 , there was a party in the area but during day, he went to work and left at about 8:OO pm. He then went home, slept and woke up the next day at 1:OO p.m. A policeman then carne to his house and arrested him and took him to Kanoni police station on charges of defilement. The Appellant (DWl) denied knowing the victim prior to the court hearing.

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- 18] The prosecution relied on the evidence of the victim, who made a sworn statement, testifytng that the Appellant is the one that defiled her. In her testimony, she stated that; - "On 2&h July 2017 theg u)ere inthe house sleeping together utith Namuddu shelina, Nakauuki and Mugema uthen the Appellant came quietlg and pushed the door at about 5:OO a.m. When they recognised him, he lefi and later came back utith a hat on his head, a red shirt and black trouser. She stated that they were sleeping in the sitting room uith a Tadooba light nearby. Theg raised an alarm and utent to the corner of the room but he came close to them. The uictim was the nearest to him so he carried her and held her in the neck. He then took her to a garden of a man called Godi, remoued her clothes and lefi her in a blouse. He got hold of his penis put inside her uagina. She felt lot of pain but he held her neck so she couldn't shout. Afierutards, he lefi her there and he ran amtag."

- 19] The victim was consistent in her evidence even during crossexamination and did not contradict herself. The evidence of the victim was corroborated by that of PWS, an 1l-year-oId child, who was present at the scene of crime and also positively identified the Appellant. Thq learned trial Judge relied on the evidence of PW1, the grandmother to the victim, to corroborate the evidence of the victim. She testified that she saw the Appellant carry the victim out of the house and also, that she knew the Appellant prior to the commission of the offence. - 2Ol It is settled law that the burden of disproving an alibi does not lie on the Appellant. Once an accused person raises an alibi accounting for his time at the time an offence was committed, the burden shifts to the prosecution to place the Appellant at the crime scene and prove participation of the Appellant. - 2LlIn the case of Androa Asenua & Another Vs Uganda [1998] UG SC 23, the Supreme Court of Uganda observed that: -

It is trite that by setting up an alibi, an accl,tsed person does not thereby assume the burden of prouing its truth so as to raise a doubt in tlrc prosecution case. See Ntale us. Uganda (1968) E. A. 365; Sekitoleko us. Uganda (1967) E. A. 531 and L. Aniseth us. Republic (1963) E. A. 206. Inthe case of R\_ us. ChemulonWero Olancro (1937) 4 E. A. C. A. 46, it utas stated:

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"The burden on the person setting up the defence of alibi is to account for so much of the tinie of the transaction in question as to render it impossible as to haue committed the imputed act".

221 Whereas the Appellant gave an alibi, the victim squarely placed him at the scene of crime. The Appellant was known to her prior to the day as a fish monger in the village. This was corroborated by the testimony of the Appellant himself when he stated during examination in chief that he is a fish monger. He later contradicted himself in cross examination and stated that he sells vegetables and is known by the residents of the area.

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- 231 We have reviewed the evidence of all the prosecution witnesses particularly the evidence of the victim and find tJ:at he was placed at the crime scene by the prosecution witnesses, most especially by the victim. The identification parade was carried out by PW3 and the identifying witness was 7 -year-old Mugema Angello, one of the children present in the house on the day the offence was committed. Mugema failed to identify the Appellant during the identification parade. However, the victim was not brought to identify her assailant and yet she had properly identified the Appellant as someone known to her prior to the commission of the offence. We would thus disregard the identification parade and find that the Appellant was squarely placed at the crime scene by the victim, PWl and PWS. - 231 The Supreme Court held in Stephen Mugume Vs Uganda Criminal Appeal No. 20 of 1995 that;

"Identification parades are, as a practice, held in cases where the suspect is a stranger to the witness or possibly where the witness does not know the name of the suspect. In such a case the identification parade is held, as correctly stated by the learned Judge, to enable the identifying witness confirm that the person he has identified at the parade is the same person he had seen commit an offence."

24] We therefore find that the learned trial Judge rightly convicted the Appellant of the offence of Aggravated Defilement and we find no reason to fault the finding.

## **Review of sentence**

25 This court will only interfere with a sentence imposed by a court where the sentence is illegal or founded upon a wrong principle of law. It will equally interfere with a sentence where the trial court has not considered a material factor in the case or has imposed a sentence that is harsh and manifestly excessive in the circumstances. See **Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2001** (unreported) Livingstone Kakooza v Uganda [1994] UGSC 17, and Bashir Ssali v Uganda [2005] UGSC 21.

26 The sentencing order of the trial Judge states as follows:

"The maximum is death. The beginning point is 30 years. The accused is a first offender. Has asked for leniency and has been

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on remand for 2 years. The aggrauating factor is that the child u)as onlg 7 7 gears and utas gross/y uiolated. TTtere is need to deter this rampant offence. ,There is need for acarced to be reformed. To achieue the aboue accttsed is sentenced to arctodial sentence of 22 Aears from first date of remand."

271 Article 23 (81 of the Constitution of the Republic of Uganda, 1995 requires the sentencin! court to consider the remand period in the following terms:

"Where a person fs conuicted and sentenced to a term of imprisonment for an offence, ,anA peiod he or she spends in lawful atstody in respect of the offence before the completion of his or her tial shall be taken into account in imposing the term of impisonment " [Emphasis added]

281 It is clear from the sentencing,order that the learned trial Judge did not deduct the period the Appellant had spent on remand.

## Re-sentencing

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291 Section 1 1 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

" ⁷7. Court of Appeal to haue powers of the court of original juisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall hnue all the powers, authority and jurisdiction uested under ang written law in the court from the exercise of the oiginal jurisdiction of which the appeal oiginally emanated."

- 30] In the exercise of the above mandate, we adopt both the mitigating and aggravating factors as set out by the trial judge in her sentencing decision. We are also alive to the principle of uniformity and consistency in sentencing which we are required to comply with. See: Sentpnclng Prlnclple No.6(c) of thc Constlttttlon (Sentenclng Guld,ellnes for Courts of Judtcature) Practlce Dlrectlorui, 2073 - Lcgal Notlce No.8 of 2olg, and, Ahartkundtra Yustlna Vs tlgand,a, Supreme Court Ct{,mlnal Appeal I\Io. 27 of 2075. - 311 In Taremwa Apollo Vs Uganda, Court of Appeal Criminal Appeal No. 193 of 2OL4 where the girl defiled was 8 years old, while the appellant was of the age of 29 years at the time he committed the offence and a first offender, this Court reduced the sentence of 21 years' irnprisonment imposed by the High Court to 15 yeals'imprisonment. - ³1l In Ninsiima Gilbert Vs Uganda, Court of Appeal Criminal Appeal No. O18O of 2O1O, the appellant was convicted of the offence of aggravated defilement and sentenced to 30 years' imprisonment by the High Court. The victim was 8 years old. On appeal, this court while reducing the sentence to 15 years' imprisonment stated., "the appellant being ajed 29 Aears, a first offender, hnuing spent 3 gears and four raonths on remand, ^a person with family responsibilities and uith dependents to support, we find that a sentence of 7 5 years' imprisonment is

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appropriate and is in line with sentences passed by courts in previous cases having a semblance to this one."

## **Decision**

- 1. The appeal against sentence is allowed. - 2. The sentence imposed by the High Court against the appellant for the offence of aggravated defilement is hereby set aside. - 3. We consider 22 years' imprisonment as the appropriate sentence in the circumstances of this case. Taking into account the period of approximately 2 years spent by the appellant in pre-trial remand, the appellant shall serve a term of 20 years' imprisonment commencing from the date of conviction.

We So Order.

Delivered and dated this $\begin{array}{c}\n\bullet \\ \bullet \\ \bullet\n\end{array}$ day of $\begin{array}{c}\n\bullet \\ \bullet \\ \bullet\n\end{array}$ 2024.

RICHARD BUTEERA **Deputy Chief Justice**

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**CHRISTOPHER GASHIRABAKE Justice of Appeal**

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Justice of Appeal

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