[2024] UGCA 162

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HELD AT MASAKA

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

## CRIMINAL APPEAL NOs. 0270 OF 2011 & 74 OF 2021

MBAZIRA JOSEPH PAUL :::::::::::::::::: **::::::::::: APPELLANT**

#### **VERSUS**

UGANDA :::::::::::::::::::::: **<u>....................................**</u>

[Appeal against sentence only arising from the judgment and orders of Hon. Lady Justice Elizabeth Ibanda Nahamya delivered on 14^th November 2011 in Criminal Session Case No. 87 of 2010 of the High Court of Uganda at Masaka]

# JUDGMENT OF THE COURT

$[1]$ The Appellant was indicted and convicted on two counts of the offence of Aggravated defilement contrary to Section 129 (3) (4) (a) of the Penal Code Act, Cap.120 and incest contrary to Section 149 (1) of the Penal Code Act, Cap. 120. The Appellant was sentenced to imprisonment for the rest of his life on each one of the counts. Both sentences were to run concurrently.

# **Background**

The victim who for purposes of this judgment will be referred to as "NEC" or "victim" was a $[2]$ biological daughter of the Appellant. Following the death of the victim's grandmother with whom the victim was staying, the victim started staying with the appellant at his home located at Nakayiba Nyendo – Ssenyange Division, Masaka District. During the year of

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2007, the appellant started defiling the victim who, at the time was 11 years of age. This continued until the Appellant got a live-in-woman companion called Margaret. In 2009 due to a quarrel, Margaret left and the Appellant resumed defiling the victim until March 2010 when the victim decided to reveal the incident by reporting the Appellant (her father) to the authorities.

- $[3]$ The Appellant was arrested and charged with the offences of Aggravated defilement and Incest. He was medically examined and found to be HIV positive but mentally normal. The victim was also mentally examined from Masaka Regional Referral hospital and it was found that her hymen had ruptured long ago. She was also found to be HIV positive. - $[4]$ The Appellant was accordingly charged with the offences of aggravated defilement and incest. The Appellant denied the charges and after undergoing a full trial, he was convicted of the offences of aggravated defilement and incest as charged and sentenced to imprisonment for the rest of his life on each one of the counts. - The appellant was dissatisfied with the sentence imposed by the trial Court and, with leave $[5]$ of this Court, appealed against sentence only on grounds that: - The learned Judge erred in law when she sentenced the Appellant to imprisonment $\overline{a}$ for the rest of his life on count of aggravated defilement which sentence is harsh and excessive in the circumstances of the case. - The learned Judge erred in law when she sentenced the Appellant to imprisonment $b)$ for the rest of his life on count of incest, which sentence was manifestly harsh, excessive and illegal in the circumstance of the case. - The learned Judge erred in law when he failed to reduce the term the Appellant spent $c)$ on remand when she sentenced him to imprisonment for life which sentence was $-$ lo $v$ illegal.

# **Representations**

- At the hearing of the appeal, Ms. Brenda Ainomugisha holding brief for Edith Namata and [6] Ms. Regina Rwabukiika, appeared for the Appellant, while Ms. Immacuate Angutoko, Chief State Attorney in the Director of Public Prosecutions, appeared for the Respondent. - The parties, with leave of the Court, relied on their written submissions as their legal $[7]$ arguments in support of their respective cases.

### Appellant's submissions

- Counsel for the Appellant submitted on all the three grounds of appeal concurrently. [8] - Counsel argued that the sentencing Judge ignored entirely all mitigating factors when $[9]$ sentencing the Appellant namely, the fact that the Appellant was a first time offender, was 40 years old at the time of sentencing, disabled, asked court to have mercy on him and wished to reconcile with his daughter which was a sign of remorse. - [10] Counsel further contended that the sentences breached the principle of consistency or uniformity. Counsel cited the case of **Ssentongo Ronald Kyatte Vs Uganda, Criminal Appeal No. 46 of 2015,** where the Appellant being HIV+ performed a sexual act on a girl aged 11 years and infected her with HIV. The Court set aside the sentence of imprisonment for life, and sentenced the Appellant to 18 years' imprisonment after deducting the period of 3 years and 17 days that the Appellant had spent on remand. - [11] Counsel further referred to the case of *Omara Charles Vs Uganda*, *Criminal Appeal No.* **0158 of 2014,** where the Appellant, who was aged 33 years at the time of commission of the offence of aggravated defilement, was a step father to two victims aged 10 & 12 years respectively and infected one of the victims with HIV. This Court is stated to have

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substituted the trial Court's sentence with a sentence of 11 years' imprisonment on count 1, 17 years' imprisonment on count 2 from the date of the trial Court conviction.

- [12] It was Counsel's contention that the sentence of imprisonment for the Appellant's natural life imposed by the trial Judge is harsh and excessive in the circumstances and prayed that this Court interferes with the same. - [13] As regards the alleged illegality of sentence, Counsel stated that the trial Judge did not consider the period of 1 year and 8 months which the Appellant had spent on remand as required by Article 23(8) of the 1995 Constitution. Counsel invited this Court to set aside the said sentence and impose an appropriate sentence. Counsel proposed a sentence of 20 years' imprisonment on both counts to run concurrently from the time of the Appellant's conviction.

# The Respondent's reply

life.

- [14] The Respondent supported the sentence passed by the trial court as having been arrived at by the trial Court after considering both the aggravating and mitigating factors. - [15] Counsel submitted that the Appellant had sexual intercourse with the victim for 3 years prior to being reported to the Police. That from 2007 to 2010, the victim was a virgin prior to being defiled by the Appellant. She contracted HIV/AIDS from the sexual acts. The victim suffered trauma having been defiled by the Appellant repeatedly until she could bear it no more. That in the circumstances, an imprisonment term for the rest of the Appellant's natural life was the most appropriate.

[16] Counsel submitted further that the learned trial Judge did not have to consider the period spent on remand since she was sentencing the convict to imprisonment for the rest of his

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[17] Counsel concluded by urging this Court to dismiss the appeal.

# **Duty of the Court**

- [18] The law as to the circumstances under which this Court, as a first appellate court, may interfere with the sentence of a trial court is settled. Before this Court can interfere with a sentence, any one or more of the factors below must exist: - The sentence is illegal. $\overline{a}$ - $b)$ The sentence is manifestly harsh or excessive. - There has been failure to exercise discretion. $c)$ - $d$ ) There was failure to take into account a material factor. - An error in principle was made. $e)$

See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014; Kyalimpa Edward Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2000 and Kiwalabye Bernad Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001

- [19] Further, the court may not interfere with the sentence imposed by a trial court simply because it would have imposed a different sentence had it been the trial Court. See *Ogalo* S/O Owoura Vs Republic [1954] 24 EA CA 270. - [20] We shall bear in mind the above principles when resolving this appeal while not losing sight of the general duty of this court, as first appellate court, to re-appraise all evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S. I.

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13-10; Fredrick Zaabwe vs. Orient Bank Ltd Civil Appeal No. 4 of 2006; and Kifamunte Henry vs. Uganda, Cr. Appeal no. 10 of 1997 of the Supreme Court of Uganda.

### **Grounds 1 & 2 – Gravity of the Sentence.**

- [21] The basis of the Appellant's complaint that the sentences imposed by the trial Court are harsh and manifestly excessive is that the trial Judge did not take into account the mitigating factors of the appellant's age, family responsibility, invalidity and HIV status, his being a first offender, and having dependents to look after. Further, that the sentences breached the principle of uniformity and consistency in sentencing. - [22] On her part, the Respondent's counsel disagreed and argued that the trial Court considered both the mitigating and aggravating factors. - [23] The sentencing order of the trial Judge stated thus:

"I have heard the submissions of the State Attorney in Aggravating factors. The convict committed a capital offence of defiling a girl below 14 years. The maximum sentence for Aggravated Defilement is death but prosecution has not asked for this. The State Attorney has submitted that since incest is equally heinous, considering the gravity of both offences, the convict should be given an imprisonment term to allow him to reflect and appreciate his mistakes.

The defence counsel did not offer any mitigation because he was only holding brief. He left it to Court to decide the appropriate sentence considering the gravity of the offences. Mbazira Joseph Paul in mitigation prayed to Court for leniency since he is disabled, HIV positive and has a family as well as other people he looks after. He had spent 1 year and 8 months on remand. He did not seem remorseful neither did he show regret much as he told Court that he loved his daughter so much. The girl was still a virgin and she was rudely introduced to sexual intercourse by a person no other than her father.

The convict as a father is expected by society to protect and nurture his daughter. Many people in society become proud at a daughter's wedding. You instead ruined your daughter's life by taking advantage of her innocence, you had sexual intercourse with your own biological daughter. This beastly behavior

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must not be condoned by this Court. You are a danger to Eva Nanyonjo and she is better off without you. I will give you a deterrent sentence. On the issue of forgiveness, it will be between you and God to ask for forgiveness.

For the foregoing: -

On count 1 (Aggravated Defilement), I hereby sentence you to imprisonment term for the rest of your life.

On count 2 (Incest), you are hereby sentenced to imprisonment term for the rest of your life... Both sentences will of course run concurrently."

- [24] From the record of appeal, we note that the trial Judge while sentencing made specific reference to the appellant's age, family responsibility and HIV status, even though she appears to have put greater weight on the aggravating factors than the mitigating factors. - [25] As regards, the alleged breach of the principle of consistency by the trial Court, we note that on the face of it, the sentencing order of the trial court does not give any indication that the trial Judge considered any decided cases of a similar nature or circumstances while sentencing the appellant. This was definitely an error on her part as it is the surest evidence in the court record of the sentencing court having discharged its duty to comply with the principle of consistency in sentencing. The obligation of the court to ensure consistence of its sentences with those of decided cases is set out under Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 – Legal Notice No.8 of 2013 in the following terms:

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

[26] The importance of the principle of consistency in sentencing was stated by the Supreme Court of Uganda in the case of **Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015**, thus:

$\mathcal{L}^{\mathcal{S}}$ "... It is the duty of this 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 applied with equality and without unjustifiable differentiation."

- [27] When faced with the trial Court record which does not set out the decided cases which the trial Court considered in sentencing an accused person, it is still incumbent upon this Court to establish whether the omission resulted in the sentences passed by the trial Judge being out of range with the decided cases in similar matters and/or being harsh and manifestly excessive in the circumstances. - [28] We have reviewed the authorities relied upon by the parties in this case. In **Opio Francis** Vs. Uganda, Criminal Appeal No. 138 of 2010, the girl defiled was 6 years old and a neighbor to the Appellant. There were no aggravating factors. The Respondent's Counsel also conceded that the sentence of life imprisonment was too harsh. The Court reviewed the sentences imposed in previous cases of aggravated defilement by the Court of Appeal and found that although the learned trial Judge took into account both mitigating and aggravating factors before sentencing the Appellant, the sentence of life imprisonment passed against the appellant was manifestly harsh and excessive, in the circumstances of the case. The court accordingly reduced the sentence to 20 years' imprisonment. - $[29]$ In the case of *Omara Charles Vs. Uganda Criminal Appeal No. 0158 of 2014*, also cited by Counsel for the Appellant, the Appellant was aged 33 years at the time of commission of the offence and the victims' step-father. The two victims defiled by the Appellant were aged 10 and 12 years respectively. The Appellant was HIV positive and infected one of the victims (the younger one) with HIV. He was convicted on his own plea of guilty and the Court considered this factor and saving court's time. He had spent one year and two months in pre-trial detention prior to his conviction. This Court (Kakuru, Egonda-Ntende & Obura, JJA) sentenced him to serve 16 years' imprisonment in respect of count one and ten years' imprisonment in respect of count two, after deducting the period of one year the

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appellant had spent on pre-trial detention in respect of each count. Both sentences were to run concurrently.

- [30] We have also found the cases below relevant in resolving the appellant's complaint before us: In Anguyo Siliva V. Uganda, Court pf Appeal Criminal Appeal No.038 of 2014, the appellant who was 32 years old at the time he committed the offence, was convicted of the offence of aggravated defilement of a girl aged 14 years. The appellant knew that he was HIV positive when he committed the offence. Having taken into account the period of 2 years, eleven months and 2 days that the appellant had been in lawful custody before conviction, this court sentenced him to serve 21 years and 28 days in prison. - [31] In Olara John Peter v. Uganda, Court of Appeal Criminal Appeal No.30 of 2010, the appellant was convicted of aggravated defilement of a girl aged 14 years on his own plea of guilty. He was 29 years old and knew that he was HIV positive. He appealed against a sentence of 16 years complaining that it was manifestly excessive in view of the fact that he pleaded guilty. This court considered that the victim was exposed to the danger of contracting HIV and confirmed that the sentence of 16 years' imprisonment was neither manifestly excessive nor harsh in the circumstances of the case. - [32] In *Dratia Saviour v Uganda, Court of Appeal Criminal Appeal No.154 of 2011*, the appellant was convicted of aggravated defilement of a girl who was between 12 and 13 years old and sentenced to 20 years' imprisonment by the High Court. He knew that he was HIV positive before he committed the offence against the victim who was a niece to his wife (that is, the daughter of his wife's sister). The appellant appealed to this court against the sentence of 20 years' imprisonment 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 the child from the possibility of infection with HIV

and instead defiled her. This court then 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 in prison after deducting the remand period.

- In Kasule Ibrahim vs Uganda, Court of Appeal Criminal Appeal No.172 of 2018, the $[33]$ appellant who was the father of the victim aged 10 years old was convicted of Aggravated Defilement and sentenced to 22 years' imprisonment. - [34] In Oumo Ben alias Ofwono Vs Uganda, Supreme Court Cr. Appeal No. 20 of 2016 the Supreme Court upheld the sentence of 26 years' imprisonment of the appellant who was 27 years old when he defiled his own biological daughter aged 3½ years. The 26 years' sentence had been imposed by the trial court and upheld by the Court of Appeal after taking into account the remand period of 3 years and 4 months. - In Ssejoba Robert Vs Uganda, Court of Appeal Criminal Appeal No. 332 of 2015 the [35] appellant who was 39 years old and HIV Positive defiled his daughter aged 8 years. This Court observed that even if there was no evidence that the appellant infected his daughter with HIV, he nonetheless had exposed her to the risk of infection while she was under his care. This court then sentenced him to 30 years' imprisonment after considering the remand period. - In Opio Moses Vs Uganda, Court of Appeal Criminal Appeal No. 118 of 2010 this $[36]$ Court upheld the sentence of 27 years' imprisonment of the appellant for defiling his 9 year. old daughter while he knew very well that he was HIV positive thereby permanently injuring her life. The appellant was 34 years at the time of commission of the offence. - [37] In Bacwa Benon Vs Uganda, Court of Appeal Criminal Appeal No. 869 of 2014 (delivered on 03.02.2021) this Court upheld the sentence of life imprisonment of the

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appellant for defiling a 10-year-old girl and infecting her with HIV. The appellant was 38 years old at the time of commission of the offence and cohabiting with the victim's mother.

- [38] As regards the offence of incest, we are guided by the case of **Sewanyana Vs Uganda**, **Supreme Court Criminal Appeal No.19 of 2006, where the appellant, the biological** father of the victim, was charged with incest before the lower court and sentenced to 19 years in prison. The Court of Appeal upheld the conviction and sentence. On second appeal to the Supreme Court, the appeal against conviction and sentences were dismissed. - [39] In Katende Ahamadah Vs Uganda, Court of Appeal Criminal Appeal No.21 of 2003, the appellant was convicted for the offence of incest and sentenced to 15 years' imprisonment. On appeal, the Court of Appeal upheld the conviction and sentence of the lower court. - [40] Considering the circumstances of this case and the decided cases, sentencing the appellant to spend the rest of his life in prison was rather harsh and excessive. On account of the aforesaid, we allow the appeal against sentence and set aside the sentence of the trial court. 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."

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[41] In our exercise of the above mandate, we are cognizant of the fact that aggravated defilement is a very grave offence and carries a maximum penalty of death. The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions set out

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35 years' imprisonment term as the minimum sentence for a person convicted of aggravated defilement.

- [42] We have considered the appellant's age of 38 years at the time of commission of the offence, his health status of being HIV+ and having dependents whom he was taking care of, as valid mitigating factors. This court also considers the aggravating factors being: the degree of consanguinity between the victim and the appellant, infection of the victim with HIV Aids; and the finding by the trial Judge that the Appellant was not remorseful at the trial. - [43] Lastly, we have considered the range of sentences in the cases of Aggravated defilement and incest as detailed in this judgment, we find the term of 30 years' imprisonment as the appropriate sentence for each offence in the circumstances of this case. From that sentence, we deduct the period of 1 year and 8 months spent by the appellant in pre-trial remand. - [44] Accordingly, the Appellant shall serve a term of 28 years and 4 months' imprisonment in respect of each count, commencing from the 14^th day of November 2011, the date of conviction. Both sentences run concurrently. - In light of the above, ground 3 on deduction of time spent on remand is also finally $[45]$ determined. The sentence which was imposed by the trial Court having been a life sentence, it required no deduction of the time spent on remand by the Appellant. (See: Tigo Stephen Vs Uganda S. C. C. A. No. 089 of 2009 [2011] UGSC 7 (10^th May, 2011; Kabaserebanyi Vs. Uganda Supreme Court Criminal Appeal No 10 of 2014; and Magezi Gad Vs. Uganda; Supreme Court Criminal Appeal No 17 of 2014 [2017] UGSC

35 (17^th May 2017).

## [46] **Disposition**

$\overline{a}$

- $1.$ The appeal against sentence succeeds. - The sentences imposed by the High Court are hereby set aside. $2.$ - $3.$ The appellant shall serve a term of 28 years 4 months' imprisonment in respect of each count, commencing from the 14^th day of November 2011, the date of conviction. Both sentences shall run concurrently.

## We so order.

Delivered at Masaka and dated this 15th day of July 2024.

**HELLEN OBURA Justice of Appeal** $\frac{1}{2}$ **MUZAMIRU MU KIBEEDI** TANGŪI $\Delta$ **Justice of Appeal**

**MOSES KAWUMI KAWUMA Justice of Appeal**