[2023] UGCA 340

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KABALE CRIMINAL APPEAL NO. 422 OF 2015

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#### **VERSUS**

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# CORAM: HON. JUSTICE MUZAMIRU M. KIBEEDI, JA HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### **JUDGMENT OF COURT**

The Appellants were indicted and convicted of the officience of Aggravated Defilement contrary to section 129 (3) (4) (a) of the Penal Code Act and sentenced to 32½ years' imprisonment after deducting the two years and six months spent by the appellant on remand.

#### **Background**

The brief facts of the case as ascertained from the Judgment of the Lower court and the summary of the case are as follows; on the 8th day of July 2012 at Kanyarnishekuro village Rukungiri district, one Tumwine Irene was at her home with a visitor and her grandchildren including the victim having supper. The Appellant came by and was offered food but requested for porridge instead which he was given. After supper PWI escorted her visitor. On her way back home, PWI saw the Appellant and the victim in a cassava garden. They both got up and ran off in different directions when they saw her.

The next morning PWI went to the cassava garden and noticed that the grass was flattened as though someone had lay there. The Appellant's reddish slippers were also at the scene. This prompted PWI to go to the home of the victim's father, her son, to ask the victim what had happened. The victim stated that the Appellant had followed her to the cassava garden and defiled her. That the Appellant covered her mouth and threatened to cut off her neck if she told anyone after defiling her. The Appellant was

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arrested, charged and convicted of Aggravated Defilement and sentenced to 32½ years' imprisonment after deducting the time spent by the appellant on remand of two years and six months. The Appellant was dissatisfied with the sentence passed by the trial court and lodged this appeal on the following grounds;

1. The learned trial Judge erred in law and fact when he imposed on the appellant a sentence of 35 years' imprisonment which is unduly harsh and excessive in the circumstances.

### **Representations**

At the hearing of the appeal, Nabasa Carolyn Hope together with Najunju Julie represented the appellant; while Mbalire Mohammed represented the respondent.

In the written submissions, the appellant sought leave under Section 132 (1) (b) of the Trial on Indictment Act (TIA) to appeal against sentence only. The respondent did not object to the application and leave was accordingly granted by this Court. The parties also sought the leave of the Court to adopt their Written Submissions as their legal arguments in this appeal which leave was likewise granted.

### Appellant's submissions

Counsel for the appellant submitted that when sentencing the appellant, the trial Judge gave a harsh sentence of 35 years' imprisonment without regard to the principles of rehabilitating and re-integrating an offender into society. That the sentence passed ruined the Appellant's future youthful age yet he was of youthful age and was capable of reforming. Counsel argued further that there is need to maintain consistence in sentencing the convicts of similar offences committed under similar circumstances.

Counsel relied on the decision in Tibaruhanga Emmanuel Vs Uganda Court of Appeal Criminal Appeal No. 655 of 2014 $\rm{for}$ the proposition that sentences approved by this court in previous aggravated defilement cases without additional aggravating factors range from 11 to 15 years. That in that case, this court

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reduced a sentence of 40 years to 22 years' imprisonment. Counsel relied

on Katende Ahamad Vs Uganda Supreme Court Criminal Appeal No. 006 of 2004 in which a father defiled his daughter and the Supreme Court upheld a 10-year sentence.

Counsel prayed that this court re-evaluates both the aggravating and mitigating factors and reduce the harsh sentence passed by the trial court.

# **Respondent's submissions**

For the respondent, counsel submitted that the Appellant was not sentenced to 35 years' imprisonment as argued by counsel for the Appellant but to 32½ years imprisonment after deducting the period spent on remand. Counsel argued that under Section 19, Part 1 of the third schedule to the Constitution (Sentencing guidelines for Courts of Judicature) (Practice) Directions, 2013, the sentence for Aggravated Defilement ranges from 30 years' imprisonment to death. Counsel submitted that it is the duty of court to protect the society and the young generation from such persons that are a danger to the society.

Counsel argued that whereas the Appellant's counsel relied on a number of cases in which this court substituted sentences for lesser sentences, the circumstances of each case have to be handled independently. Counsel relied on the decision in Kabazi Issa Vs Uganda Criminal Appeal No. 268 of 2015 for the proposition that the principle of uniformity in sentencing ought to be applied considering the circumstances of each case along with guidance from the sentencing ranges. Counsel submitted that in the instant case, the sentence passed by the trial court was appropriate in the circumstances of the case.

## Duty of the First Appellate Court

For this Court, as a first appellate court, to interfere with the sentence of a trial Court it must be shown that any one or more of the factors below exist:

- 1. The sentence is illegal. - 2. The sentence is harsh or manifestly excessive. - 3. There has been failure to exercise discretion.

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4. There was failure to take into account a material factor.

5. An error in principle was made.

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.

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.

We shall bear in mind the above principles while resolving this appeal.

The learned trial Judge, while sentencing the appellant, stated that;

"-The convict shall be treated as first offender.

-The time he has spent on remand shall be taken into consideration.

-He is a 37 years old man who sttes that he is sickly.

-The court takes note of his family situation.

-I note that the offence he has committed is a serious offence.

-Defilement an extreme form of sexual abuse is rampant in this *country and particularly this region.*

-It is even more tragic that the victim was a child of such tender years

- An age of which [such] trauma can scar her for life.

-The victim was only 9 years and the convict 35 years at the time?

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-As her elder he should have been the one who [shields] her and not prey on her.

-I agree that court should leave room for reform but court has a duty to protect the public as well.

-ln this case the need for society's protection shall be overriding.

-The victim suffered a lot of pain on top of threats intend out to her *by the convict.*

-*In this case the convict was a neighbour who abused courtesy* and trust of his neighbour to act as he did.

-[For] the above reasons this court shall pass a stiff sentence. This court has a second duty to protect the girl child which duty it takes seriouslu.

-I do not find the 40 years prayed for by the state appropriate but think 35 years would appropriate. -It is reduced by the time spent on remand of $2\frac{1}{2}$ years. -The convict shall serve $32\frac{1}{2}$ years in detention."

The appellant was found guilty of Aggravated Defilement. The maximum penalty for this offence is death. It is established law and practice that punishment for an offence is meant to be retribution as well as a deterrent. It is also meant to rehabilitate the offender.

The Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions Legal Notice No. 8 of 2013 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 transparency in sentencing.

In the case of Ederema Tomasi Vs Uganda C. O. A Criminal Appeal No. 554 of 2014, this court set aside the sentence of 25 years' imprisonment for Aggravated Defilement and sentenced the appellant to 18 years' imprisonment.

$\ln$ Ninsiima Gilbert Vs Uganda Criminal Appeal No. 0180 of **2010**, this court set aside the sentence of 30 years' imprisonment and substituted it with 15 years' imprisonment for Aggravated Defilement. The principle of uniformity, consistency and transparency in sentencing ought to be considered for similar offences committed in almost similar circumstances.

It is our considered view that the sentence of 32½ years' imprisonment is harsh and excessive and is hereby set aside. This court has the same powers as the High Court, pursuant to **Section 11** of the **Judicature Act.** We shall proceed to sentence the appellant afresh. We adopt the aggravating and mitigating factors as laid out by the learned trial Judge. We are satisfied that a sentence of 20 years' imprisonment from the date of conviction will meet the ends of justice in this case.

We deduct the $2\frac{1}{2}$ years' imprisonment the appellant spent on remand and sentence him to $17$ (Seventeen) years and 6 (six) months' imprisonment from the 09^th day of January 2015, the date of conviction.

We so order.

Signed, delivered and dated at Kabale this 2914 day of November, 2023

Muzamiru Mutangula Kibeedi,

Christopher Gashirabake, JA

Oscar John Kihi