[2022] UGCA 38

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT JINJA CONSOLIDATED CRIMINAL APPEALS NOS. O2d1 & O3O5 OF 2016

(Coram: Elizabeth Musoke, Cheborion Barishaki, and Hellen Obura, JJA )

## MAGORO HUSSEIN APPELLANT

#### VERSUS

### UGANDA RESPONDENT

15 (Appeal from the decision of the High Court of tJganda at Mbale before Wangutsi, J. delivered on the 28th day of July 2016 in Cnmrnal Sesslon Case No. 030 of 2013)

#### JUDGMENT OF THE COURT

#### lntroduction

This is an appealagainstthe decision of the High Court (Wangutsi, J.)delivered on 28th July 2016 by which the appellant was convicted of the offence of aggravated defilement contrary to section 129 (3), and (4) (a) of the Penal Code Act, Cap. 120 and sentenced to 20 years' imprisonment.

#### Background to the Appeal

The background facts of this case as per the record are that on the 18th day of February 2012 at Gangama, Mbale District, the appellant unlawfully performed a sexual act on KS a child aged 5 years. The prosecution led evidence to prove that while the victim was playing with her sister, the appellant called them and took them to the shops to buy sweets. After the appellant took the sisters to Gangama and in a bush, he forcefully removed the knickers of the victim, lay on her, and had sexual intercourse with her while her sister watched on the

- ⁵ roadside. After the sexual act, the appellant instructed the victim to clean her private pa( and he added her more sweets. The victim went home and narrated to her mother what had happened to her. The matter was reported to the Police and the appellant was arrested. He was indicted, tried, and convicted of the offence of aggravated defilement and sentenced as aforementioned. - Being dissatisfied with the decision of the trial Court, the appellant appealed to this Court on the following grounds; 10 - 1. "That the learned Judge erred in law and fact when he concluded that the appellant had committed aggravated defilement yet the prosecution failed to disprove his defence of alibi by way of investigation. - Z. The learned trial Judge erred in law and lact when he failed to accord the appellant time to present hls wrtnesses thus clogging the appeilant's tight to a fair hearing 15 - 3. That the leamed trial Judge ened in law and fact when he sentenced the appellant to a harsh and excessive sentence in the circumstances of the case.

The appellant prayed that this Court allows the appeal, vacates, and replaces the sentence with 5 years' imprisonment, inclusive of time already served in laMul custody. The respondent opposed the appeal. 20

#### Representation

At the hearing, Ms. Kevin Amujong represented the appellant on State Brief whereas Ms. Ainebyona Happiness, Chief State Attorney from the Office of the Director Public Prosecutions represented the respondent. The appellant could not physically be in court due to the restrictions on the movement of inmates following the Standard Operating Procedures put in place to avert the spread of the Coronavirus 2019. However, he was facilitated to participate in the court proceedings from Jinja Main Prison using zoom technology. Counsel for both sides, with leave of Court, filed written submissions which have been considered in this judgment. 25 30

# s Appellant'ssubmissions

When the appeal came up for hearing, counsel for the appellant sought leave of this Court to abandon grounds 1 and 2 of the appeal. She also sought and was granted leave to proceed with the appeal on sentence only as contained in ground 3 of the appeal.

On Ground 2, counsel submitted that the sentence of 20 years that was imposed on the 10 appellant was harsh and excessive and occasioned a miscarriage of justice. Counsel stated that the learned trial Judge failed to take into consideration the mitigating factors namely that; there was no injury to the victim; the appellant was a first ofiender, and the appellant was ^a man with a lot of responsibility which included taking care of 2 wives and 8 children. He further submitted that the learned trial Judge failed to follow uniformity and consistency in sentencing 1s which requires that offenders of offences with similar circumstances be given uniform sentences. He refened this Court to the case ol Aharikundira Yustina vs Uganda; Court of Appeal Criminal Appeal I{o 33 of 2008where it held that;

,'it is the duty of this coul while dealing with appeals regarding sentencing to ensure consis,ency wlh cases that have similar facts. Consistency is a vital principle of ^a 20 sentencing regine. tt is deeply rooted in the rule ol law and requies that laws be applied with equality and without uniustifiable differentiation.'

He cited Rugarwana Fred vs lJganda; supreme court criminal Appeal No 39 of ¹⁹⁹⁵ where the Supreme Court upheld a sentence of 15 years as not being excessive in a case where a S-year-old victim was defiled in a latrine by the appellant who was an adult. He also zs cited German Benjamin vs lJganda; Court of Appeal Criminal Appeal No 142 of ²⁰¹⁰ where a sentence of 20 years was substituted for one of 15 years. The victim was a S-yearold child who sustained serious injuries in her private parts. The court was merciful to the 35 year-old appellant who was a first offender and showed signs of reform. Counsel also relied on wanzala simon ys lJganda; court of Appeal criminal Appeal No 46 of 2009 where 30 this Court upheld a sentence of 15 years as not being excessive where a 13 year old victim

⁵ was defiled in a banana plantation. He fu(her ciled Owinji William vs Uganda; Court of Appeal Criminal Appeal No.106 of 2013 where a sentence was reduced to 17 years. The victim was 12 years of age. She had been defiled and the appellant thereafter threatened her with a knife and promised to give her money if she kept the sexual act a secret.

He invited this Court to also look at the case of Tiboruhanga Emmanuel vs Uganda; Courl

- of Appeal Criminal Appeal IVo.655 of 2014 where it was held that sentences approved by this Court in previous aggravated defilement cases without additional aggravating factors range between 1 1 years to 15 years. The court considered the fact that the appellant was HIV positive as an additional aggravating factor since the appellant exposed the victim to the risk of contracting HIV/AIDS. This Court imposed a sentence of 25 years imprisonment. 10 - Counsel argued that from the foregoing, this case has no existing aggravating factor. He therefore, urged this Court to interfere with the sentence that was passed and substitute the same with 10 years. 15

#### Respondent's submissions

ln response, counsel submitted that the sentence of 20 years' imprisonment is not excessive for the appellant who was 32 years old at the time of committing the crime. She cited the case ol Kyalimpa Edward vs Uganda; Supreme Court Criminal Appeal NoJ0 of 1995 and Tigo Stephen vs Uganda; Supreme Court Criminal Appeal No.8 of 2009.|n the ligo Sfephen case, the Supreme Court confirmed a sentence of 20 years imprisonment for aggravated defilement. ln the instant case, the learned trial Judge considered both the mitigating and aggravating factors and found that the aggravating factors outweighed the mitigating factors. The learned trial Judge observed that the appellant had two wives but still defiled a S-yearold child. He then took into account the period the appellant had spent on remand and sentenced him to 20 years imprisonment for having acted beastly. Counsel urged this Court 20 25

to find that the sentence of 20 years imposed by the learned trial Judge is appropriate in the circumstances.

#### Resolution by Court

10 15 We have carefully studied the court record, considered the submissions of both parties, the law and authorities cited therein as well as those not cited but are applicable to the present case. The duty of this Court as the first appellate Court is to re-evaluate all the evidence on record and make its findings. In so doing, it should subject the evidence to fresh and exhaustive scrutiny. See Ru/e 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions S.l 13-10 and Kifamunte Henry vs Uganda; Supreme Couft Criminal Appeal No. 10 of 1997; Pandya vs R (1957) EA 336. Alive to the above stated duty, we shall proceed to resolve the ground of appeal as argued by both counsel.

Counsel for the appellant submitted that the learned trial Judge erred in law and fact when he sentenced the appellant to a harsh and excessive sentence in the circumstances of the case.

The law on the role of an appellate court in reviewing the sentence of the trial court was articulated in the case of Kyalimpa Edward vs Uganda (supra) where the Supreme Court refened to R vs De Haviland (1983) 5 Cr. App. R(s) 109 and held as follows;

"An appropriate sentence is a mafter tor the discretion of the sentencing Judge. Each case presenls Its facfs upon which a Judge exercises hrs dlscrelion. lt is the Nactice that as an appellate couft, this court will not normally intefere with the discretion of the trial judge unless the sentence is illegal or unless fhe Court ls sallsfed lhat lhe s entence imposed by the trialJudge wasmanrfeslly so excesslve as to amount to an injustice. See; Ogalo s/o Owousa vs R (1951) 21 E. A. C. A. 270 and R vs Mohammed Jamal (1948) 15 E. A. C. A. 126'

This Court also reiterated this position of the law on the role of an appellate court in interfering with the sentencing discretionary powers of a trial Judge in AharikundiraYustina vs Uganda (supra) which was cited by counsel for the appellant where it held that;

'lnteffering with the sentence of the tilal coutl is not a mattet of emotion but rather one of law. Unless it can be proved that the trial judge flouted any of the principles in sentencing, then it does not mafter whether the members of this court would have given a different sentence if they had been the one trying the appellant. ln the instant case, he found that the mosf appropriate senlence was death. Without proot that this discretion was brased or unlawful, this coul would have no lawful means of inteiering with the sane'.

The sentencing regime in Uganda is further guided among others; by the Penal Code Act, Cap. 120 which stipulates the various offences and the punishments to be handed down to persons found guilty of those offences and by the Constitutional (Sentencing Guidelines

for the Courls of Judicature) (Practice) Directions Legal Notice No. I of 2013 (lhe Sentencing Guidelines). The purpose of the Sentencing Guidelines is inter alia; to provide principles and guidelines to be applied by courts in sentencing; to provide sentencing ranges and other means of dealing with offenders; to provide a mechanism for considering the interests of victims of crime and the community when sentencing and to provide a mechanism that will promote uniformity, consistency, and kansparency in sentencing. 15 20

The submission on consistency principle is to the effect that the sentences passed by the trial court must as much as circumstances may permit, be similar to those passed in previously decided cases having a resemblance offacts as the one in which sentence is being passed; and the appellate Court, may if called upon to do so, be justified in interfering with the sentences which contravene this principle. (See: AharikundiraYustina vs Uganda (Supra)).

The Sentencing Guidelines in the 3,0 schedule provides that in aggravated defilement, the starting point should be 35 years while the maximum point should be death.

We will now move to consider the sentences passed in previous cases of aggravated defilement. Counsel for the appellant cited, Rugarwana Fred vs Uganda (Supra,) and

5 German Benjamin vs Uganda (supra). ln both cases, the victims were 5 years and with no other aggravating factors a sentence of 15 years was found appropriate.

ln the case of Iigo Stephen vs Uganda (Supra) cited by counsel for the respondent, the Supreme Court confirmed a sentence of 20 years' imprisonment for aggravated defilement of a 6-year-old victim.

ln Byera Denis ys Uganda, Courl of Appeal Criminal Appeal IVo. 99 of 2012, this Court substituted a sentence of 30 years' imprisonment with one of 20 years' imprisonment. The victim, in that case, was aged 3 years. 10

We observe that in cases where the aggravating factors outweigh the mitigating factors, the courts have given higher sentences. For example in Tiboruhanga Emmanuel vs Uganda

(Supra) cited by counsel for the appellant, this Court considered the fact that the appellant was HIV positive as an additional aggravating factor and imposed a25-year imprisonment. 15

The record of proceedings in the instant appeal shows that the learned trial Judge in imposing a sentence of 20-years' imprisonment had this to say;

'The accused is a first-time offender, he has been on remand tor the past four years. These are mitigating tactors. That notwithstanding, the offence of aggravated defilement rs grave. /f is conmitted against a child belowl4 years. /n this case, lt r,yas worse because it was committed on a child of 5 years. Such an act cannot be g/ossed over. I find the accused acted beastly and cannot be teated with gloved fingers. He had two wives but still, they were nol enough to keep him away lrom a child of 5 years. I have taken into account the long remand period and the fact that he is a firsltine offender and he is sentenced to a 20 years imprisonment term.' 20 25

We observe that the sentence of 20 years' imprisonment is below the minimum limit of what is stipulated by the Sentencing Guidelines; however, it is within the range of sentences imposed in the cases cited above. We therefore, find no fault with the learned trial Judge's sentencing decision. From the foregoing ground 3 of the appeal fails for lack of merit.

5 ln conclusion, we dismiss this appeal forthe reasons stated hereinabove and uphold both the conviction and sentence.

We so order.

Dated at Jinja this day of ..,,2022

Hon Lady Justice Elizabeth Musoke

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## JUSTICE OF APPEAL

t\_

Hon Mr. Justice Cheborion Barishaki

JUSTICE OF APPEAL

Hon Lady Justice Hellen Obura

JUSTICE OF APPEAL

20