[2025] UGCA 124

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT MASAKA

[Coram: H. Obura, C' Gashirabake and E'K' Luswata' JJA]

CRIMINAL APPEAL NO. 282 OF 2016

KAWEESI WASSWA CHARLES... """""""'APPELLANT

# VERSUS

UGANDA RESPONDENT

(An Appeal arisingfrom the Judgment of the High Co-urt.at Masaka ( John Eudes Keitirima' J') 'in Cri\*irot Carrfio. 17I of 20la delivired on the 09th day of September 2016)

# . IUDGMENT OF OURT

### Introduction

[]The Appellant was indicted and convicted of the offence of aggravated defilement contrary to section l2g (3) & (a)GXc) Cap 120, and now section ¹¹⁶(3) & (4Xb) (c) Cap 128 ofthe Penal Code Acl

[2] The paniculars of the offence are that the Appellant' on the 19th day of July 2014 atKibaale vitlage, Kalangala district' being H'I'V positive, performed a sexual act with his biological daughter NJ' a girl under the age of 14 years' He was sentenced to 40 years' imprisonment. The Appellant was aggrieved with the decision of the tfial Court, hence this appeal on only one grorrnd that;

The learned senlencing Judge erred in law and fact when she failed to consider the principle of undormity and consistency while senlencing the appellanl, thereby imposing on the appellant a harsh and manifestly excessive sentence, leading to a miscatiage ofjustice

#### Representation

[3] At the hearing, the Appellant was represented by Mbalire Mohamed on State brief. The Respondent was represented by Mr' Kulu Idambi' Assistant DPP'

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#### Submissions by Counsel for the Appellant

- [4] Counsel for the Appellant sought leave to appeal against sentence only under Section 1 32( 1 )(b) of The Trial On Indictment Act Cap 25 and Rules 2(2),43(3 ) (a) of the Rules of this Court and in reliance on the authority of this Court in Kakembo Vs. Uganda, 120221 UGCA 300. - [5]Counsel for the Appellant was alive to the role of the first appellate court as stated in the case of Henry Kifamunte Vs. Uganda, U9981 UGSC 20. Counsel submitted that the principles upon which an appellate court may interfere with a sentence passed by the trial sentencing court were considered by the Supreme Court in the case of Kyalimpa Edward Vs. Uganda, Criminal Appeal No. l0 of 1995. - [6] Counsel submitted that it is now trite law that while sentencing, the sentencing court needs to maintain consistency and uniformity while sentencing persons convicted of similar offences committed in similar circumstances. In Baruku Asuman Vs. Uganda, Court of Appeal Criminal Appeal No. 387 of2014(unreported), this court underscored the importance of consistency and uniformity, emphasizing that it is the only means by which the appellate court can determine whether the sentence imposed on the appellant was harsh and manifestly excessive. - [7] It is the appellant's submission that the leamed trial Judge, while sentencing him, failed to consider previous sentences meted to convicts who committed offences in similar circumstances as the appellant in the instant appeal. He contended that as a result, a sentence of40 years imposed on the appellant was out of the range of sentences approved by this court and the Supreme Court, hence making the sentence harsh and manifestly excessive. Counsel cited Aharikundira Yusitina Vs. Uganda, [20f81 UGSC 49' where the Supreme Court held that;

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" Before a convicl can be sentenced, lhe trial court is obliged to exercise its discretion by considering meticulously all the mitigating factors and othet pre-sentencing requiremenls as elucidated in the constitution, statutes, Practice Directions, together with principles of sentencing. "

- [8] Counsel submitted that the principle of consistency and uniformity is provided for under paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, as demonstrated in the case of Tiboruhanga Emmanuel Vs. Uganda, Court of Appeal Criminal Appeal No. 655 of 2014, (unreported)' 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. In this case, the court considered the fact that the appellant was HIV positive as an additional aggravating factor and noted that, by committing a sexual act on the victim while HIV positive, the appellant exposed the victim to the risk of contracting HIV/AIDS. The court imposed a sentence of 22 years' imprisonment' - [9] Counsel further cited the decision in Wamboza Disan Vs. Uganda Court of Appeal Criminal Appeal No. 205/201 l(unreported), where this court, in ^amore atrocious case, reduced a sentence of life imprisonment to 20 years. He submitted that in that case, the appellant was not remorseful and an uncle to the victim of 2 years. He defiled her and affected her ability to control the flow of urine and she may never live a normal life, unlike in the instant appeal where no permanent injury was occasioned. - tl0l In Adriko Geofrey Vs. Uganda, [20241 UGCA 328, the appellant defiled his close relative who was below 14 years old. He went through ^a full trial, was convicted and sentenced to 20 years and on appeal, this court,

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in its decision delivered on 27'h November 2}24,reduced the sentence of 20 years to 18 years.

- [11] In Birungi Charles Vs. Uganda, [2024] UGCA 251, where the appellant defiled an I I -year-old girl and infected her with HIV, this court, in its decision delivered on 3rd September 2024, confirmed the sentence of ¹⁸ years. - ll2l [n Kwizera Jonathan Vs. Uganda, [20241 UGCA 246, the Appellant was indicted for aggravated defilement of an 8-year-old girl. He underwent a full trial, was convicted, and sentenced to 2l years of imprisonment. On appeal, the Court reduced the sentence from 2l years to l8 years. - [13] Counsel argued that it is important to note that in the foregoing decisions, all the Appellants underwent full trials, showed no remorse, and wasted the Court's time and resources. However, in the present appeal, the Appellant pleaded guilty, expressed remorse, and took full responsibility for his actions. Additionally, he did not infect the victim with any sexually transmitted disease. - [14] Counsel stated that it is upon that basis that they state that the sentence imposed on the Appellant was harsh and excessive. He submitted further that under Section ll ofthe Judicature Act, Cap 16, this Court has the discretion to evaluate the aggravating and mitigating factors presented by both parties, and come up with its own sentence. - [15] In mitigation, counsel submitted that the Appellant is a first-time offender, a young man capable of reform, and has demonstrated remorse for his actions. He prayed for a lenient sentence. Counsel submitted that ¹³ years' imprisonment would be appropriate and the court should deduct the two and a half years spent on remand. &K

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#### Submissions by counsel for the Respondent

- [16] Counsel for the Respondent was alive to the duty of this Court as the 1't Appellate Court under Rule 30 of the Rules of this Court and as stated in Henry Kifamunte (supra) and the limited power of this court in interfering with the discretion of a sentencing judge as stated in Kyalimpa Edward (supra). - ll7) Counsel submitted tha this court should not interfere with the sentence of 40 years as it was not manifestly excessive and did not occasion ^a miscarriage of justice to the Appellant. Counsel argued that aggravated defilement attracts a maximum sentence of death according to section 129(3) ofthe Penal Code and the third schedule ofthe sentencing guidelines. - [18] Furthermore, counsel submitted that this court and the Supreme Court have held that the Appellate court can only interfere with sentencing only if the said trial court acted on a wrong principle and overlooked some material fact, or the sentence was manifestly excessive. - [9] Regarding consistency and uniformity, counsel submitted that each case is considered on its facts because of the varying circumstances, like age of the victim, HIV status, and relationship with the victim. - [20] Counsel cited Bashir Burahuri Vs. Uganda, 120231 UGCA 265, where the court upheld a sentence of 40 years' imprisonment. In Kyamifumba Eriab Vs. Uganda, [2024] UGCA 189, the court reduced the sentence from 60 years to 38 years. - l2ll Counsel prayed that this court upholds the sentence of40 years, stating that it was consistent and it was not harsh and manifestly excessive as alleged by counsel for the Respondent. s&-

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# **ANALYSIS**

#### **Role of the First Appellate Court**

- Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, $[22]$ 2005, the duty of this Court as the first appellate Court is to re-evaluate the evidence on record and come to its conclusions. This was re-echoed in **Henry Kifamunte Vs. Uganda** (supra). It is trite law that the appellate court will not interfere with the discretion of the sentencing Judge unless it is proved that the sentence was illegal or that the sentence was manifestly excessive and harsh. In **Kyalimpa Edward**(supra). - The consistency principle entails cross-referencing with previously $[23]$ decided cases with the same offence and, as nearly as possible, the same facts. However, since past decisions do not have the authority of precedents, the principle is not a rule of law, but it is now an established good practice of the courts to consider it as a useful tool for achieving some measure of uniformity between cases with the same facts. Guideline $6(c)$ of the sentencing Guidelines provides that,

"Every Court shall, when sentencing an offender, take into account the need for consistency with appropriate sentencing levels and other areas of dealing with offenders in respect of similar offences committed in similar circumstances."

- In Byaruhanga Okot Vs. Uganda, CACA No. 078 of 2010 $[24]$ (unreported), it was held that the court is bound to follow the principle of parity and consistency while sentencing, bearing in mind the circumstances under which the offence was committed. - $[25]$ In Okello Basil Mugenyi Vs. Uganda, [2023] UGCA 128, this court confirmed a sentence of 32 years' imprisonment where the appellant defiled his niece. In **Benywanira Emmanuel Vs. Uganda**, [2023] UGCA 339, this

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Court upheld a sentence of 32 years' imprisonment, holding that it was legal.

- 126) We have considered the provisions of the Third Schedule of the Constitutional Sentencing Guidelines (supra), which provides that the starting point for sentencing for aggravated defilement is 35 years of imprisonment up to death as the maximum sentence. - l27l In the circumstances of the case, we find that 40 years' imprisonment for aggravated defilement was manifestly excessive and harsh, especially in a case where the convict had pleaded guilty and showed remorse. Therefore, in light of the consistency principle, we fault the leamed trial Judge for not following the same. Pursuant to section l1 of the Judicature Act, we exercise our power to sentence the appellant afresh. - t28l Considering both the mitigating and aggravating circumstances of this case and the principle of uniformity, we are satisfied that an appropriate sentence in this case would be 35 years' imprisonment. We shall deduct the 2 years and 2 months the appellant spent on remand. The appellant shall serve 32 years and I 0 months from the date of conviction and sentence.

We so Order

| Dated and delivered this | | aav or.fll.9. Yzozs | |--------------------------|-------------------|--------------------| | | &e | | | HELLEN OBURA | | | | | JUSTICE OF APPEAL | |

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#### CHRISTOPHER GASHIRABAKE

JUSTICE OF APPEAL

EVA K. LUSWATA JUSTICE OF'APPEAL