[2024] UGCA 192

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDENT AT ARUA

(Coram: Geoffrey Kiryabwire, Irene Mulyagonja, Eva K. Luswata, JJA)

## CRIMINAL APPEAL NO. O77 OF 2016

#### BET1VEEN

KIBWOTA MATHEW : :: :: :: : :::: :: :: APPELLANT

#### AND

UGANDA :::::::::::::::::::::::::::::::::::::!::::::::::::::::::::::::::: RESPONDENT

# (Appeal from the decision of Margaret Mutonyi J delivered at Arua on 23'a March, 2OL6 in High Court Criminal Session Case No. 0487 of2OL4l

#### JUDGMENT OF COURT

## Introduction

1] The Appellant was charged with the offence of aggravated defilement contrary to Section 129(3) and a(a)(b)(c) of the Penal Code Act. He was indicted, convicted and sentenced to 30 years' imprisonment, inclusive of the period spent on remand.

25 2l It was stated in the indictment that Kibwota Mathew between the months of February and March 2014, at Kati village in Gulu District, when infected with the Human Immune Deliciency virus, /.

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- ⁵ performed a sexual act with his granddaughter AK, a girl aged seven years' old. - 3l The facts of the case as ascertained from the record is that at the material time of the offence, AK, daughter of Odoki Charles, resided with the Appellant and his wife Aber Mateo in Kati, Kati, Pawel Pamala Putwong, Atiak Sub county, in Amuru District. That during March 2O14, Aber left her home and went out to dig and also to Piesa to do some shopping. She returned at 9:0Opm and was informed by the children in the home that AK had remained lying down since moming. One of the children called Oyella informed Aber that at some point during the day, the Appellant wanted to carry AK to where they cook from but Oyella instead carried her and hid her on Odoki's bed' That the Appellant still opened Odoki's door with the intention of taking AK. Aber then asked AK how she was feeling and the child informed her that her entire body was hurting and Aber also noticed that she was not walking well. The child offered no reason for her discomfort. That upon further inquiry, AK informed Aber that the Appellant called her to eat some silver fish that he had prepared but when she was done, he prevented her from returning to the home of her uncle called Opiyo. That that same night, when certain people came to pick AK, the Appellant informed them that AK was going to spend the night at his home. AK narrated further that during the night, the Appellant lay upon her and inserted his penis in her vagina and had sexual intercourse with her. That he had sex with her at least two times. AK explained further that when she reported the

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- ⁵ defilement to Ayella he beat her so she feared to report to any adult. Upon receiving that information, Aber examined AK and found her vagina with a pus like substance. She reported her findings to both Odoki and the police, the latter who referred them to a medical centre where it was confirmed that AK had a bacterial infection and was HIV positive. The Appellant was immediately arrested a-fter the report was made to police. His HIV results were returned as positive. 10 - 4l The matter went to lull trial at the end of which the Appellant was convicted and sentenced as stated above' Being aggrieved with the decision of the High Court, he lodged an appeal premised on one ground set out in the amended memorandum of appeal as follows:

The learned trial Jud.ge erred in law and fact when she passed an illegal, excessiae and harsh sentence of 30 gears utithout due consideration to the mitlgating factors raised bg the aPPellant.

#### ReDresentation

5l At the hearing of the appeal on 2 1"t November 2O 13, the Appellant was represented by Mr. Ronald Onencan on state brief while the Respondent was represented by Mr. Sam Oola a Senior Assistant DPP. Both counsel filed written arguments before the hearing of the appeal. We allowed Mr' Onencan's prayer for leave to proceed against sentence only and for his written submissions to be adopted as the legal arguments in the appeal' We likewise adopted Mr. Oola's written submissions and then relied on what was filed' 25 30

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## s Submissions for the Appellant

6] By way of introduction, counsei for the Appellant Mr Ronald Onencan emphasized the duty of this Court on appeal arrd cited the case of Kifamunte Henry versus Uganda, SC Criminal Appeal No. 10 of L997 where it was held that the duty of the first appellate court to reappraise the evidence before Court and draw its own inferences. Further that discretion exercised by the trial Judge in sentencing should not be fettered unless it is shown that they acted on some wrong principle or overlooked some material factors, or when they have passed an illegal or manifestly excessive sentence. He referred to Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of 2OO1 to support his submission. He further referred to the powers of this Court provided for in Section 11 of the Judicature Act Cap I'3 and Rule 3O(1)(a) of the Judicature (Court of Appeal Rule) Directions Sl 13-1().

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- 7] In regard to the legality of the sentence, counsel cited Article 23(8) of the Constitution which enjoins a sentencing court, when imposing a term of imprisonment, to take into account the period spent in lega,l custody. Counsel cited a number of cases on this issue for example: Oumo Ben alias Ofwono versus Uganda, SC Criminal Appeal No' 20 of 2OL6, Abelle Asuman versus Uganda t20f 8] UGSC 1O and P. C Amukun John Michael and D. C Oruba Michael versus Uganda, CA Criminal Appeal No. 67 of 2OLL. - 30 8] Mr. Onencan submitted that in the instant case, in passing the sentence, the trial court did not mention the years the Appellant /

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- ⁵ had spent on remand. He referred in particular to the statement that: ".... he is sentenced to 30 gears' imprisonment peiod spent on pre-trial remand inclusiue... " In his view, that statement is contrar5r to what is required by the law because it does not portray that the trial Judge did take into account the period spent on remand. He therefore considered the sentence as illegal, one that should be set aside. 10 - 9] In regard to the sentence being harsh and manifestly excessive Mr. Onencan submitted that the Court should have in addition to the fact that the Appellant had no previous record and time spent on remand the Judge should also have considered other mitigating factors, in particular his advanced age of 64 years and his show of remorse. In counsel's view, the Court only considered the aggravating factors. He then cited the decision in Nkurunziza Godfrey versus Uganda, CA Criminal Appeal No. 686 of 2OL4 where it was held that Courts are enjoined to consider the need for consistency while imposing sentences for similar offences committed in similar circumstances, a principle found in Guideline No. 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature (hereinafter Sentencing Guidelines). 15 20 25 - 10] Counsel then drew our attention to previous decisions of this Court and the Supreme Court to argue that in comparison, the sentence against the Appellant was excessive. He in particular referred us to the case of Ninsiima Gilbert versus Uganda, CA Criminal Appeal No. 18O of 2O2O, where this Court reduced ^a sentence of 30 years' imprisonment to 15 years' imprisonment for

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- ⁵ the offence of aggravated delilement of a child of 8 years. Also that of Candia versus Uganda (unreported) where this Court upheld a sentence of 17 years' imprisonment for the offence of aggravated defilement for an Appellant who defiled his S-year-old stepdaughter. He also mentioned the case of German Benjamin versus Uganda, CA Criminal Appeal No. 142 of 2O10, where this Court set aside a sentence of 20 years' imprisonment and substituted it with 15 years' imprisonment for defilement of a 5 year-old child. 10 - 11] In conclusion, counsel invited this Court to consider the age of the Appellant at the trial and find that the sentence of 30 years' imprisonment is harsh and manifestly excessive in the circumstances, set it aside and reduce it. 15

## Submissions for the ResPondent

20 25 30 ¹²¹In response, Mr Sam Oola conceded to the fact that the learned trial Judge did not specifically take into account the period spent on remand while sentencing the Appellant. For emphasis, counsel cited Mutebi Ronald versus Uganda, Criminal Appeal No. O383 of 2OL9, where this Court cited with approval the case of Rwabugande Moses versus Uganda, SC Criminal Appeal No- 25 of 2OL4 and held that any sentence passed without taking into consideration the time spent on remand, is illegal and contrary to the provisions of Articte 23(8) of the Constitution. That in the same case, the Justices considered that "taking into account" has to be arithmetical and as such, the trial court has to ascertain the remand period and deduct it from the sentence it considers

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## ⁵ appropriate." Counsel in addition, cited Tumuramye Denis versus Uganda, Criminal Appeal No. O5l5 of 2Ol5 in that report'

13]That said, Mr. Oola did not agree that the sentence passed against the Appellant was harsh or excessive in the circumstances. He contended that the Appeltant was convicted of the charge of aggravated defilement which carries a maximum sentence of death. He pointed out further that the trial Judge did consider part 1 of the 3'd schedule, of the Sentencing Guidelines which provides that the starting point for aggravated defilement is 35 years and the sentencing range is 30 years to death. He then drew our attention to the Judge's observation that the aggravating factors were grave, in particular the family relationship between the Appellant and the victim, the age difference of 55 years between them, the fact that the sexual act was done on multiple occasions, and his brazen conduct throughout the trial' Mr. Oola opined then that a sentence of 3O years' imprisonment was appropriate in the circumstances.

14]Similar to his colleague, Mr. Oola offered some previous decisions on aggravated defilement in comparison. In particular, that of I'labazi versus Uganda, Criminal Appeal No. 268 of 2O15, this Court upheld a 32 years' imprisonment for a charge of aggravated defilement. Similarly, that of Bashir Burahiri versus Uganda, CA Criminal Appeal No. O25 of 2015 where this Court upheld a sentence of 40 years, for the same offence. He also referred to the case of Bachwa Benon versus Uganda, Criminal Appeal No. 896 of 2OL4 where the Appellant defiled his ward of 14 years and was 25 30

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⁵ sentenced to life imprisonment, which was confirmed on appeal' In addition, he cited Bonyo Abdul versus Uganda, SC Criminal Appeal No. O7 of 2011 where the Supreme Court upheld ^a sentence of life imprisonment where the Appellant had been convicted on the charge of aggravated defilement.

## 10 Analysis and decision of court.

15] We have carefulty studied the record, considered the submissions for either side, as well as the law and authorities cited to us' and those not cited but which we find relevant to this matter. We are alive to the duty of this Court as a first appellate Court to review the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court, before arriving at our own judgement. See: Rule 3o(11(al of the Judicature (Court of Appeal Rules) Directions S. I 13-1()' We do agree and follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O ol L997, where it was held that on a first appeal, this Court has a duty to;

> \* ... reuiera the euidence of the case and to consider the mateials before the tial Judge. Th.e appellate court must then make up its own mind not disregarding the judgement appealed from, but carefully weighing and considering it."

¹⁶¹This appeal was preferred against sentence only. It was submitted for the Appellant that the trial Judge did not take into account the period spent on remand when sentencing the Appellant to 3O /

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- ⁵ years' imprisonment or at least that the sentence was vague. In addition, counsel contended that the trial Judge meted out a harsh and excessive sentence. Respondent's counsel did not contest the submission of the legality of the sentence, but argued that the submission that the sentence was harsh and excessive had no merit. However, both counsel did agree that the sentencing function is a matter of discretion of the sentencing Judge. We would add that each case presents its own facts upon which a Judge exercises that discretion. See Karis Moses versus Uganda, SC Criminal Appeal No. 23 of 2OL6. 10 - 17] The principles guiding an appellate court when considering any contest to the severity of a sentence are well settled' As pointed out for the Appellant our powers to intervene are quite limited and we may interfere only in cases where it is shown that: 15 - a. The sentence is illegal - b. The sentence is manifestly harsh or excessive - c. Where there has been failure to exercise discretion - d. Where there was failure to take into account a material factor - e. Where an error in principle is made.

See: Ogalo S/O Owoura v R lL9S4l2L E. A. CA. 27O, Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 10 of 1995' Kamya Johnson Wavamuno versus Uganda, SC Criminal Appeal No. 16 of 2OOO and Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of2OO1.

181 It is provided in Article 23(8) of the Constitution that:

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"where a person is convicted and sentenced to term of imprisonment for an offence, any period he or she spends in *lawful custody in respect of the offence before the completion* of his or her trial shall be taken into account in imposing the *term of imprisonment.*" *(Emphasis supplied).*

The provision is mandatory and the Supreme Court has in her decision of **Rwabugande versus Uganda, Criminal Appeal No. 25** of 2014, held that compliance with that law requires that the Court makes an arithmetic deduction of the remand period from the sentence imposed on a convict. The provision was re echoed in Paragraph 15 of the Sentencing Guidelines Constitution (Sentencing Guidelines for Courts which provide that:

1) The Court shall take into account any period spent on *remand in determining an appropriate sentence.*

2) The Court shall deduct the period spent on remand from the *sentence considered appropriate after all factors have been* taken into account.

19] In the case before us, while sentencing the Appellant, the trial Judge made observations and then imposed the sentence. Her sentencing order is found on pages 30 -31 of the Record of appeal, where she held in part as follows:

> "The convict is a real biological grandfather of the victim. He was expected to protect her from sexual abuse. He decided to exploit the innocence of the little girl over silver fish. His sexual *abuse of a 7-year girl has no mitigating factors.* .........*I do* agree with the state that had he not been medically examined and found to be of sound mind, one would think he was insane. ....... *His conduct throughout the trial was not of a* remorseful person. He betrayed the trust and confidence of

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the victim to the entire family. Aggravated defilement is punishable by death sentence as maximum. The starting point is 35 years of imprisonment with the sentencing range from *30 years to date. (sic)*

As mentioned earlier, this case does not present any *mitigating factors. All factors are aggravating such as;*

1. The relationship between the convict and the child, i.e *grandfather and granddaughter,*

- *2. The age differences of 55 years,* - 3. The continuous defilement, because it was not done once - *4. His brazen conduct throughout the trial;*

.... His depraved and perverted mind calls for a serious retribution from this Court. Young children should be protected from ravaging old men like the convict. Being a man, with *sexual lust for children, he needs to be kept out of circulation* until his victim and other children in the home are old enough to defend themselves.

In the result, he is sentenced to 30 years' imprisonment, period spent on pretrial remand inclusive".

20] We observed that the Judge passed the sentence on 31^st March, 2016 before the Supreme Court handed down its decision in the case of Rwabugande (supra). Even then, the trial judge should have at least shown that she was aware of the period spent on remand, and taken it into consideration in her sentence as was the required position pre Rwabugande. We say so, for it was held in Abelle Asuman versus Uganda, SC Criminal Appeal No. 66 of 2016[2018] UGS 10(19 April 2018) that:

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In this case the Judge omitted to consider the remand period and as pointed out by the Respondent's counsel instead issued an

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- ambiguous statement, contrary to the law. We accordingly find $\mathsf{S}$ that the sentence given was illegal for failure to consider the period that the Appellant spent in lawful custody. We set is aside and then invoke our powers under the provisions of Section 11 of the Judicature Act, to impose what we consider as an appropriate sentence in the circumstances. 10 - 21] In our endeavour to pronounce an appropriate sentence, we are mandated to consider both mitigating and aggravating factors presented for the Appellant at the trial. We must in addition, apply the principle of consistency. That principle which has been well followed by Courts is important, in that an appellate Court will be guided by sentences given in previous trials and appeals with similar facts. We are fortified in our findings by the provisions of Paragraph 6(c) of the Sentencing Guidelines which provides that "a court should be guided by the principle of consistency while passing a sentence to a convict." It was for that reason held by the Supreme Court in Aharikundira Yustina versus Uganda (Supra) that:

"... it is the court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar *facts. Consistency is a vital principle of a sentencing regime.* It is deeply rooted in the rule of law and requires that laws be without unjustifiable equality and applied with differentiation."

We have already related the facts admitted by the trial Judge. The 221 30 Appellant a 62-year-old man was convicted for the aggravated defilement of his granddaughter aged 7 years. We for a start shall

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- review a few previous decisions in comparison. In Kagoro Deo versus Uganda, CA Criminal Appeal No. 82 of 2OI-L (delivered on 20th June, 2019) a 63-year-old Appellant was convicted for the defilement of his granddaughter aged two and a half years' He was sentenced to life imprisonment, which this Court set aside and substituted with a sentence of 18 years' imprisonment (after deducting the period of 2 years spent on remand) that the Court considered to be more in line with previous decisions with similar circumstances. In Tiboruhanga Emmanuel versus Uganda, Criminal Appeal No. O65 of 2OL4, the appellant who was ³⁰ years old was convicted for the aggravated defilement of a girl aged ¹³years. He knew that he was HIV positive and in the process, the victim contracted the virus. The trial court sentenced him to ^a term of imprisonmcnt of 30 years. This court observed that the range of sentences for similar offences where the assailant was not infected with HIV was in the range of 11 to 15 years. 10 15 20 - 231 Further in Anguyo Siliva versus Uganda, CA Criminal Appeal No. O38 of 2OL4, thc Appellant who was 32 years old at the time he committed thc offe nce, was convicted of the offence of aggravated defilemcnt of a girl aged 14 years. The Appellant knew that he was HIV positivc when he committed the offence' Having taken into account the period of 2 years, eleven months arrd ² days that the Appellant had been in lawful custody before sentence, this court scntcnced him to serve 21 years and 28 days in prison. Yet in Ederema Tom versus Uganda, CA Criminal Appeal No. 554 of 2014, the Appellant was one of three men who gang-raped a girl below the age of 14 years. He was sentenced to

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imprisonment.

24] The decisions of this Court and the Supreme Court above and the few supplied by counsel indicate a sentence range for aggravated defilement between 18 and 37 years' imprisonment with the exception of one case in which a steep sentence of life

a term of imprisonment of 25 years. On appeal, He succeeded to

have it set aside for illegality, and while considering an appropriate

sentence, this court took into account that the Appellant knew

that he was HIV positive at the time he committed the offence.

Although the victim tested negative immediately after the offence,

at the time that she testified, she had turned HIV positive and was

a social outcast due to the fact that she was sexually abused and

was HIV positive. This Court sentenced the Appellant to 18 years'

imprisonment. Similarly, in Dratia Saviour versus Uganda, CA

Criminal Appeal No. 154 of 2011, the Appellant was convicted

of aggravated defilement of a girl who was between 12 and 13 years

old. He knew that he was HIV positive before he committed the

offence against the victim who was a niece to his wife, being the

daughter of her sister. The Appellant appealed against the

sentence of 20 years because the trial Judge did not take into

account the period of 17 months that he had spent in lawful

custody before he was sentenced. Court considered the fact that

the Appellant was HIV positive but he did not exercise the

responsibility of protecting his charge from the possibility of

infection with HIV but instead defiled her. This Court set aside

the sentence of 20 years for being contrary to Article 23 (8) of the

Constitution, and instead imposed a sentence of 18 years'

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- imprisonment was passcd. We in addition take guidance of the Sentencing Guidelines as well as the particular facts of this case' - 25] During allocution procccdings both counsel were permitted to make a submission bcforc sentence. It was stated for the prosecution that the Appcllant, a 62-year-old convict with two wives had no previous record' He defiled a victim his granddaughter of only scven years and then tried to destroy evidence by fleeing to Pawel after the incident' The child who suffered physical injury was also traumatized' The State invited the Court to treat the offcnce with much seriousness because by his crime, the App<:llant had stripped the chitd of her dignity and also tainted the imagc of his family. Counsel considered him ^a lustful man who dcservcd a long custodial sentence. He suggested a prison term of 40 Years. - ²⁶¹Conversely, it was offcrcrl in mitigation that the Appellant a first time offender and r:ldcrlv, was very remorseful. Counsel reminded the court that onc of thC functions of sentencing is rehabilitation so that previous oflendcrs return to their communities to serve others. That in view of his age, a long custodial sentence would do the opposite Pointing to tl-tc Appellant's diminished life expectancy, counsel prayed for a tcrrrt of 15 years' imprisonment. The Appellant himself offered pr<;fusc :rpologz for his crime' 25 - 27lWe have weighcd thc irggravating and mitigating factors. The Appellant committr:d ;t st:rious and rampart crime which requires commensurate plttrisl-tr-ttt:nt. The blood relationship and the age difference betwecn thc Appcllant and his victim, would be a serious

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- ⁵ aggravating factor. All lrough not raised in the allocutus, the uncontested evidcncc irrdicated that both the Appellant and AK were HIV positivc. 'l'hcrt: is a possibility that the Appellant infected her with HIV sinct: therc rvcre several episodes of defilement. That said, the Appellant's plcirs for mercy before being sentenced should have dissipated thc Jr.rclgc's observation that he acted in, and showed no remorsc during the trial. In addition, we consider that the Appellant who was a lirst offender with two wives, had long standing family rcspon sibilities. Aiso he was clearly of advanced age and thus descn,cs ir ccrtain degree of mercy from this Court. Under Rule 9(3)(lr) zrn<l '1(a) of the Sentencing Guidelines, the advalced age of :r cortvict should be considered a compelling mitigating factor. U ndcr nll those circumstances we find a sentence of 20 years' imprisonmr:nt appropriate in the circumstances. We are enjoined unclcr At'1 iclc 23(8) of the Constitution to take into account the period ol I vt:ar and 8 months the Appellant had spent on remand befor<: hc was convicted. We deduct it from the sentence. The App<:llirrrt is accordingly sentenced to 18 years and 4 months'imprisotrmcnt which he will serve with effect from 23'd March 2O 16, thc clrttt' ol l-ris conviction. 10 15 20 - ²⁵ 28] Consequently, tlrr' ;rppr':tl has succeeded.

Dated thrs .?G ,2024 /-- <litv rlf

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HON. GEOFFREY KIRYABWIRE JUSTICE OF APPEAL HON. IRENE WULY $\Delta$ G

JUSTICE OF APPEAL

HON. EVA K. ŁUSWATA JUSTICE OF APPEAL

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