[2023] UGCA 226

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORT PORTAL

# CRIMINAL APPEAL No. 212 of 2015 & No. 449 of 2015 (CORAM: Egonda, Bamugemereire and Mugenyi, JJA)

# MUROGOWABU WILLIAM::::::::::::::::::::::::::::::::::

## VERSUS

UGANDA:::::::::::::::::::::::::::::::::::

(An appeal against the decision of Vincent Okwanga J High Court Criminal 10 Session Case No. 0072 of 2012 at Fort Portal dated 18^th February 2015)

## **IUDGMENT OF THE COURT**

The appellant was found guilty of the offence of Aggravated Defilement contrary to section 129 (3) and (4) (a) of the Penal Code 15 Act, CAP 120. It is alleged that the appellant on the 5^th day of October 2011 at Kachwamba 1 Village in the Ntoroko District, had unlawful sexual intercourse with **KRS**, a girl aged seven years.

#### Background

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At all times material to this case the victim, KRS lived with her 20 grandmother. The facts as accepted by the lower court were that on the 5^th October 2011 at about 2:00 pm KRS returned from school only to find the appellant who lured her into his home in his bed, undressed her and had sexual intercourse with her. Murogowabu also known as Chameleon was a labourer at the Ministry of Works 25 and normally cohabited with the victim's grandmother, Sauda

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Kamukene, also commonly referred to as 'Namukadde', a local nickname for an elderly person. The appellant warned the victim not to divulge to anyone what he had done to her. The next day, the victim's teachers noticed that the victim was unwell and sent her home. The victim's neighbour noticed the victim walking with $\mathsf{S}$ difficulty and upon inquiry she spoke out about her ordeal with the appellant. The matter was reported to the police. In defence of the accusations, the appellant, who testified on oath stated that the allegations were made up against him. His evidence was that when Sauda learnt that his wedded wife was soon to return to stop their cohabiting, she framed him. He testified that he could not possibly have defiled KRS. He testified that he was surprised to be invited to the police when he had joined fellow workmen at a drinking place. His testimony was that this was a small issue and according to him,

"It is not true that the misunderstanding started after defiling that girl... Sauda came to police and saw me-she even brought me food at police she brought me food because woman get annoyed on little thing."

He denied knowledge of several witnesses who pinned him to the defilement of KRS. 20

After the appellant was apprehended, he was charged with the offence Aggravated Defilement c/s 129 (3) and (4) of the PCA. At arrest, he was found to be 70 years of age with a normal and fully functioning mental status. Upon trial, the appellant was convicted

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and sentenced to 17 years and 6 months' imprisonment. Dissatisfied with the sentence, the appellant appealed against sentence only.

## The main ground of appeal

That learned trial Judge erred in law in sentencing the appellant to $\mathsf{S}$ an unfair, harsh and manifestly excessive imprisonment sentence of 17 years and 6 months.

#### Representation

At the hearing of the appeal, the appellant was represented by Mr. 10 Cosmas Kateeba, on state brief, while the respondent was represented by Mr. Joel Kakuru Akatukunda, a Senior State Attorney from the Office of the Director of Public Prosecutions. The appellant sought for and was granted leave to appeal against sentence only. The appellant was physically present in court. 15

#### Submissions for the Appellant

Counsel for the appellant submitted that the sentence of seventeen and a half years imprisonment imposed on the appellant appeared to be influenced by the aggravating circumstances alone yet there were 20 compelling mitigating factors the learned trial Judge could have considered. Counsel faulted the learned trial Judge for wholly ignoring the appellant's mitigating factors to wit; that the appellant was a first offender, he was of advanced age of 70 years. Counsel 25 argued that ordinarily, once regulation 9 (4) of the Judicature

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Constitutional Sentencing Guidelines (Directions) was invoked, an appellant would not be sentenced to a custodial sentence and that this was reinforced by the fact that the appellant was remorseful and specifically requested for leniency.

- Counsel for the Appellant observed that in the general the trend of $\mathsf{S}$ sentencing imposed in cases of this nature, given the advanced age of the appellant would require a lenient sentence. Counsel invited this court to find that a term of imprisonment of 10 years would have been appropriate in the circumstances. Counsel cited Rugarwana - Fred v Uganda SCCA No. 39 of 1995 where the Supreme Court $10$ upheld a sentence of 15 years' imprisonment as not being excessive where a 5-year-old was defiled.

He also referred to German Benjamin v Uganda CACA No. 142 of 2010 where the appellant a 35-year-old was sentenced to 20 years by

the trial court for defiling a 5-year-old and this court set aside the 15 sentence on appeal and substituted it with one of 15 years' imprisonment.

Counsel cited Taremwa Apollo v Uganda CACA No. 0193 of 2014 where it was held that the range of sentences in cases of aggravated

defilement is usually in the range of 11-15 years imprisonment. 20 Finally counsel urged this court to find that the seriousness of this offence was mitigated by a number of other factors including that that the convict is not a known habitual offender; he was aged 70 years at the time of commission of the offence hence he deserved a more lenient sentence of 10 years. 25

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# **Submissions for the Respondent**

Counsel submitted that an appropriate sentence is a matter of discretion of the sentencing Judge and each case presents its own facts upon which a judge exercises his/her discretion. He cited

Kyalimpa Edward v Uganda SCCA No. 10 of 1995 to that effect. Counsel submitted that before sentencing, the trial Judge considered the mitigating and aggravating factors to come up with his final sentence. Counsel added that the sentence meted out to the appellant was lenient since the offence of Aggravated Defilement carries a

maximum penalty of death.

Counsel further submitted that the sentencing range for the offence of Aggravated Defilement according to paragraph 19 of the Sentencing guidelines is from 30 years' imprisonment to death. Counsel argued that the appellant was not of advanced age as submitted by the appellant's counsel. He stated that the appellant was 70 years old at the time of commission of the offence and not 75,

which is considered the advanced age according to paragraph 4 of the Sentencing guidelines, thus his sentence was justified under the law. 20

Counsel submitted that sentences ought to reflect the seriousness of the offence and to protect the public. He cited David Chandi Jamwa v Attorney General Constitutional Petition No. 26 of 2021 and Obwalatum Francis v Uganda SCCA No. 30 of 2015 to that effect.

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Counsel argued that this honourable court has previously not interfered with sentences in cases of this nature. He referenced Ntare Augustine v Uganda CACA No. 53 of 2011 where the appellant had been convicted of Aggravated defilement of an 11-year-old girl and sentenced to 25 years' imprisonment. This court found that the 25 years' imprisonment imposed by the trial Judge did not exceed the permissible sentencing range.

Counsel cited Bukenya Joseph v Uganda CACA No. 222 of 2003 where this court confirmed a sentence of Life Imprisonment where the appellant aged 70 years defiled a 6-year-old girl. Counsel further cited Seruyange Yuda Tadeo v Uganda CACA No. 80 of 2010, where the appellant was sentenced to 33 years' imprisonment for defiling a 9-year-old girl and this court found that the sentence of 27 years' imprisonment was appropriate.

Counsel prayed that this honourable court finds the sentence meted 15 out to the appellant appropriate and dismiss the appeal.

#### The Decision of Court

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It is the duty of this court as a first appellate court to rehear the case 20 on appeal by reconsidering all the materials that were placed before the trial court and make up its own mind. (See **Kifamunte Henry v** Uganda SCCA No.10 of 1997). This appeal is against sentence only. In Kyalimpa Edward v Uganda SCCA No. 10 of 1995, the Supreme Court pronounced itself on the question of sentence to the effect that;

'An appropriate sentence is a matter of discretion of the sentencing Judge. Each case presents its own facts upon which the appellate court will not normally interfere with discretion of the sentencing Judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by the trial judge was manifestly excessive.'

The appellant in this case faulted the trial Judge for sentencing him to a prison term of 17 years and 6 months which he considers to be manifestly harsh and excessive.

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We note that as an appellate Court, we are constrained in how much we can intervene on the discretional power of a sentencing judge. It is trite that we are not to interfere with a sentence imposed by a trial Court, merely on the ground that we would have imposed a dissimilar sentence, had we been in the seat of the trial Judge.

We can however, interfere with sentence where it is illegal, founded upon a wrong principle of the law, or as a result of the trial judge's failure to consider or omission to consider a material factor, or that the sentence is harsh or manifestly excessive in the circumstances of 20 the case; see Kizito Senkula v Uganda, SCCA No.24 of 2001 and Bashir Ssali v Uganda, SCCA No.40 of 2003.

We have had the opportunity to re-appraise the sentencing notes of the learned trial Judge in which he remarked as follows: 25

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"The convict Murogowabu William is a first offender by the records before me here in court. He is old man of about 70 years of age. He has been convicted of aggravated defilement c/s 129 (3) (+) (4) of the Penal Code Act. This is a felony punishable with death as the maximum sentence. This offence is very rampant within the jurisdiction of this honourable court. He claims that 3 of his children are now out of school as a result of this case and he prays for leniency from this court. On other hand I find that he has been convicted of a very serious offence of aggravated defilement. The victim in this case was a young girl aged 8 years old at the time. This child was like a grandchild to him. He was in the position of a parent/guardian to this gild. This fact calls for a deterrent sentence as he abused that close relationship. The experience of such an act must have been very traumatic to this little girl. This court ought to *report such young children by meting out a sentence that meets* the gravity of the offence. Considering all the above mitigating and aggravating factors and the fact that he has now spent on remand 2 years and 4 months and 1 week on remand since his arrest which period I hereby take into account by deducting off from my sentence herein, I sentence this convict to 17 years imprisonment."

The above sentencing remarks contain both the aggravating and mitigating factors. We can safely conclude that the learned trial 25

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alive to both the mitigating and aggravating Judge was circumstances. In this regard therefore we would not fault the learned trial Judge.

We shall in addition analyse similarly situated appeals in order to $\mathsf{S}$ carry out a comparison with the set of facts now before us. We are alive to the fact that in the exercise of its discretion during the sentencing of a convict, while being cognizant of the fact that no two cases are the same, the court must always bear in mind the need to maintain consistency or uniformity of sentence. (See Aharikundira v 10 Uganda SCCA No. 27 of 2015).

In Othieno John v Uganda CACA No. 174 of 2010 (unreported) this court confirmed a sentence of 29 years imprisonment for Aggravated Defilement where the victim was 14 years old.

In Musabuli Sedu v Uganda CACA No. 11 of 2011, the appellant was convicted of aggravated defilement and sentenced to 25 years' imprisonment. The victim was 9 years old and the appellant's appeal against sentence was dismissed.

Further, in Geoffrey Okello v Uganda SCCA No.34 of 2014; the Supreme Court held that; the sentence of 22 years imprisonment passed by the trial court on the appellant is not illegal since it is less than the death sentence which is the maximum sentence provided for the offence of aggravated defilement.

In Mutebi Ronald v Uganda CACA No. 383 of 2019, a sentence of 23 years' imprisonment was considered appropriate in a case of Aggravated Defilement, and deducted the period spent on remand and sentenced the appellant to 20 years and 6 months imprisonment. In Tiborushange Emmanuella v Uganda CACA No. 655 of 2014, this court noted that the sentences imposed by the Court of Appeal for aggravated defilement in previous cases fell within the range of between 11-15 years, however the appellant therein was sentenced to 25 years imprisonment basing on the circumstances of the case.

We have carefully understudied the authorities recounted by counsel for the appellant where sentences of 11- 15 years were considered by this court in matters of defilement with aggravation see: Rugarwana Fred v Uganda SCCA No. 39 of 1995; German Benjamin v Uganda CACA No. 142 of 2010; and Taremwa Apollo v Uganda CACA No. 0193 of 2014. We, however, wish to reiterate as above, that each case presents its own peculiar circumstances.

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In the present case, the appellant was in the place of a parent or in loco parentis to the victim since at the material time he was home alone with the child, while his co-habiting partner, the victim's grandmother, was away at a funeral. We have taken note of his advanced age and his prayer for clemency on the grounds of deep

contrition. Advanced age in this case would not be a ground that mitigates the appellant's offending. Considering the authorities we cited above, we conclude that the sentence of 17 years and 6 months was not excessive and was indeed, on the lenient side.

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We, however, noticed that the learned trial Judge in considering the period spent on remand, did not clearly credit that period to the appellant. For ease of reference, the trial Judge noted as follows:

> "... Taking into account all the above mitigating and aggravating factors and the fact that he has now spent on remand 2 years and 4 months and 1 week on remand since his arrest which period I hereby take into account by deducting off from my sentence herein. I sentence this convict to 17 years *imprisonment."* (Our emphasis)

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From the above excerpt, we find that the learned trial Judge, in the course of deducting the two years and four months spent on remand, did not mention the actual prison sentence he had meted out to the appellant. The sentence was vague and rather confusing since it was unclear from which figure two years and four months was to be deducted from. For the above reasons, taking into consideration Article 23 (8) of the Constitution, we find that the learned trial Judge failed to deduct the period spent on remand, despite mentioning it. We set aside the sentence of seventeen years and a half.

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Pursuant to s.11 of the Judicature Act, we proceed to sentence the appellant to seventeen years and a half. From this period, we now deduct the period of 2 years and 4 months, which the appellant had spent on remand.

The appellant will serve a sentence of 15 years and 1months $\mathsf{S}$ imprisonment W. E. F 17^th February 2015, being the date of conviction. The appeal succeeds.

Aug Dated at Fort Portal this.................................... 2023

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Fredrick Egonda Ntende Justice of Appeal

**Catherine Bamugemereire Justice of Appeal**

idingeny!

Monica Mugenvi **Justice of Appeal**

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