[2024] UGCA 126

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT JINJA

(Coram: Geoffrey Kiryabwire, Muzamiru M. Kbeedi & Mlonica K. ttlugenyi, JJA)

### CRIMINAL APPEAL NO, OO82 OF 2021

NGOBI RASHID alias MOJO APPELLANT

#### VERSUS

# UGANDA RESPONDENT

[An appeal against conviction and sentence arising from the Judgment of the High Courl of Uganda at Jinja (Hon. Justice Margaret Mutonyi) delivered on the 19th October 2020 in Criminal Sesslon Case No. HCI-03-CR-SC- 0123 of 20201

#### JUDGMENT OF THE COURT

#### lntroduction

1l The Appellant was indicted, tried and convicted of the offence of Aggravated Defilement contrary to Sections 129(3) & (4) of the Penal Code Act and sentenced to 35 years' imprisonment.

#### Backqround facts

- 2l The facts of the case as established by the trial Court were that the victim lived with her grandmother in the same compound with the Appellant Kamingo - Budhali Village in Buyengo Sub County, Jinja District. - 3l On the 12th day of September 2019 at about 1900 hours, the victim was at her home with the other children playing, when the Appellant called her claiming he was going to send her to town. The victim complied but when she reached where the Appellant was seated under his veranda, he asked her "have our things grown?" He then pushed his finger in the victim's private part. The victim cried. ln an attempt to calm the victim down, the Appellant promised to Page 1 of 10

- buy her bread but the victim declined his offer. The vrctim then left the presence of the Appellant and followed the grandmother who had gone to Buwebuzi and narrated to her all that the Appellant had done to her. They immediately reported the case to the police station. - 4l On the following day, the victim was medically examined and found to be of the apparent age of 12 years, and had fresh injuries in hergenitals, that is, a ruptured hymen with fresh blood stain. She also had a fresh tear in the labia minora. The Appellant reported to the Police Station by himself, and was arrested. The Appellant was likewise examined and found to be of the apparent age of 47 years, ofsound mental status and HIV negative. - 5l The Appellant was subsequently indicted, undenruent a full trial and convicted of Aggravated Defilement. He was sentenced to 35 years' imprisonment.

# The Appeal

- 6l The Appellant was dissatisfied with the decision of the High Court and appealed to this Court against both the conviction and sentence based on the two grounds of appeal which were set out in the "Amended Memorandum of Appeal" in the following terms: - 1. The learned trial Judge erred in law and tact when she failed to properly evaluate the evidence regarding the Appellant's participation, hence arrived at a wrong decision which caused a miscarriage of justice. - 2. The learned trial Judge erred in law and fact when she imposed a manifestly harsh and excessive senfence againstthe Appellant.

# Representation

7l At the hearing of the appeal, Mr. Daniel Mudhumbusi appeared for the Appellant on State brief; while Ms. Macrina Gladys Nyanzi, an Assistant Director of Public Prosecutions, appeared for the Respondent. The appellant was present in court in person.

8l The parties, with leave of the Court, relied on their written submissions as their lqal arguments in support of their respective cases.

### Dutv of the Court

- el The duty of this court as a lirst appellate court is to reappraise all material 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 it neither saw nor heard the witnesses testify. See: Rule 30(1)(a) of the Judicature (Couri of Appeal) Rules; Baguma Fred Vs Uganda, Supreme Court Criminal Appeal No.7 of 2004; Kfumante Henry Vs Uganda, Supreme Court Criminal Appeal No.10 of 1997; and Pandya Vs R [1957] EA 336. - 101 We shall bear in mind the above principles when resolving the grounds of appeal in the order they were argued by the parties.

# Ground One - Participation of the Appellant

#### Appellant's Submissions on Ground One

111 The Appellant faulted the trial Judge for not addressing her mind to the materialdiscrepancies in the prosecution evidence before relying on it. The discrepancies complained about were that despite the victim having been allegedly defiled on the 12th day of September,2019, she was examined on the 13tt day of September 2019. That the Medical Report showed that the clothes of the victim (pink leggings) were in good state despite the fact that the same report showed in the pictogram that the victim's hymen was ruptured with fresh blood stain and had a fresh tear in Labia Minola. Counsel opined that there is no way the victim's clothes (leggings) would be in a good condition and at the same time the victim's hymen be ruptured with fresh blood stains when there was an interval of slightly over 12 hours between the time the victim was defiled and the time the victim was taken back to the police for the medical examination.

- 121 ln addition, Counsel for the Appellant argued that the fact that the leggings were not exhibited should have raised more doubt in the mind of the trial Judge, which doubt should have been settled in favour of the Appellant. - 131 With regard to the issue of participation of the Appellant in the commission of the offence, Counsel contended that the conduct of the Appellant in taking himself to lzilu Police Station after the alleged commission of the crime was inconsistent with his guilt. Counsel faulted the trial Judge for disregarding the conduct of the Appellant before and after the commission of the crime and considered only the demeanor of the victim in Court and that of her grandmother which she considered truthful, yet the Appellant had raised issues of having grudges with the victim's grandmother. - 141 Counsel concluded by appealing to this court to overturn the conviction of the Appellant

#### Respondent's Submissions on Ground One

151 The Respondent's Counselsupported the trialJudge's findings on the Appellant's participation. Counsel contended that the Appellant was known to the victim long before the incident as they had lived in the same compound since her childhood. That the evidence of PW3, PW4 and that of PW1 who examined the victim sufficiently proved participation of the Appellant beyond reasonable doubt. Counsel prayed that this Court be pleased to find and hold so.

#### Resolution of Ground One

161 Ground one was couched as follows: -

# The learned trial Judge erred in law and fact when she failed to properly evaluate the evidence regarding the Appellant's participation, hence arrived at a wrong decision which caused a miscarriage of justice.

171 We note, from the Appellant's submissions on ground one, that the complaint of the Appellant went beyond faulting the trial Judge's evaluation of the evidence on the Appellant's participation

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in the commission of the offence, and also canvassed the issue of whether a sexual act was performed on the victim in light of the contradictions highlighted by the Appellant. Rule 74(1)(a) of the Court of Appeal Rules bars the parties from presenting arguments beyond what is set out in their grounds of appeal in the terms below:

#### " Arguments at hearing.

At the hearing of an appeal, the appellant shall not, without leave of the couft, argue any ground of appeal not specified in the memorandum of appeal or in any supplementary memorandum lodged under rule 67 of these Rules."

- 181 ln the instant matter, ground one was about the participation of the Appellant. Contradictory evidence in the commission of the sexual act on the victim was not one of the grounds of appeal, As such, the Appellant's arguments about the alleged contradictions in the evidence of commission of the sexual act are baned for having been made without leave of this court. - 191 Needless to add, the fact of sexual act on the victim was not in contention before the trial Cou(. The victim's own oral testimony, and the Medical Repo( (PF3A) which was admitted by the trial Court by the parties as part and parcel of the Memorandum of Agreed facts signed by parties and their Counsel at the time, are sufficient proof of that ingredient of the offence. - 201 As regards the Appellant's participation, there is no basis for faulting the findings of the trial Judge. The victim was called by the Appellant purportedly to send her to town around 7 PM. This was still day time. The Appellant responded to the verbal request and went and met the Appellant who was someone she had known since her childhood and with whom she lived in the same compound about 5 meters apart. On getting to the verandah where the Appellant was, the victim heard the Appellant ask, "have our things grown?" before inserting his finger into her vagina. The victim cried and the Appellant tried to appease her by offering to buy her bread. She refused the offer and, instead, went directly to where her grandmother was and reported the Appellant as the perpetrator. We are satisfied that the conditions favoured a positive identification of the Appellant as the perpetrator. PW1, PW2 and PW4 simply conoborated the victim's evidence. Ground one accordingly fails.

### Ground Two . Severitv of the Sentence

### Appellant's Submissions on Ground Two

- 211 Counsel for the Appellant argued that the sentence of 35 years imposed on the Appellant is manifestly harsh and excessive in the circumstances of the case. Counsel submitted that the trial Judge did not consider the character and antecedents of the Appellant in assessing the proper sentence to be passed. - 221 Counsel for the Appellant also faulted the trial judge for breaching the consistency principle while sentencing the Appellant. Counsel cited the case of German Benjamin Vs Uganda Court of Appeal Criminal Appeal No. 142 of 2010, where the sentence of 20 years was substituted with one of 15 years. The victim was a S-year-old who sustained injuries in her private part. ln Owinji William Vs Uganda CourT of Appeal Criminal Appeal No. 106 of 2013,lthe Court substituted a sentence of 45 years' imprisonment with 17 years' imprisonment for the offence of Aggravated defilement. - 231 Counsel concluded by appealing to this Court to set aside the sentence of 35 years and substitute it with an appropriate one,

#### Respondent's Reply to Ground Two

- 241 Counsel for the Respondent argued that the trial Judge judiciously exercised his discretion in deciding that the sentence of 35 years' imprisonment was appropriate given the circumstances of this case. - 25) Counsel cited a number of authorities that prove that sentences for the offence of aggravated defilement now range between 13 years'imprisonment at the lower end of the scale to 35 years' imprisonment at the upper end. ln Ssuna Frank Vs Uganda Court of Appeal Criminal Appeal No. 256 Of 2014, this Court is stated to have reduced a sentence of 19 years' imprisonment to 15 years' imprisonment for the offence of Aggravated Defilement. ln the case of James Kamoti Vs Uganda Court of Appeal Criminal Appeal No. 0096 of 2018, this Court Page 6 of 10

- after observing that the sentence range for defilement cases was between 13 years to 20 years' imprisonment set aside the sentence of 45 years and 9 months. lt substituted it with a sentence of 20 years imprisonment on each count. - 261 Based on the above cases, Counsel for the Respondent conceded that the sentence of ³⁵ years was harsh and excessive and prayed that the same be substituted with a sentence of 15 years.

#### Resolution of Ground Two

- 271 The gist of the Appellant's complaint in ground two is that the sentence of 35 years' imprisonment imposed on him exceeded the range of sentences imposed in previous cases of aggravated defilement by this court which rendered the Appellant's sentence harsh and excessive in the circumstances. - 281 The Respondent's Counsel conceded that the sentence of 35 years was out of range with the previous decisions of this Court and the Supreme Court in similar cases and proposed that the same be substituted with a sentence of 15 years. - 2gl We have reviewed the authorities relied on by the parties in this matter, especially the judgment of this Court in James Kamoti Vs Uganda, Court of Appeal Criminal Appeal No.96 of 2018 where this court reviewed several judgments of the Supreme Court of Uganda including Mutumbwe William Vs Uganda, Supreme Courl Criminal Appeal No. I ot 2008; Tatyama Vs Uganda, Supreme Court Criminal Appeal No, 35 of 2018; Kabwiso lssa Vs Uganda, Suprerne Court Criminal Appeal No. 7 of 2002 ; and Kizito Senkula Vs Uganda, Supreme Court Criminal Appeal No. 24 of 2001 and found the sentencing range in matters of Aggravated defilement to be from 10 years to 20 years. - 301 We have also considered other decisions of this court and the Supreme Court where the victim was in the same age bracket as the one, the subject of this appeal, namely: 12 years old. ln Kitambuzi Ramathan Vs Uganda, Court of Appeal Criminal Appeal No.197 of 2009, the

appellant was convicted of the offence of aggravated defilement of his 12-year-old daughter and sentenced to'15 years'imprisonment. He appealed to this Court which confirmed his sentence and dismissed the appeal. ln Ntambala Fred Vs Uganda, Supreme Court Criminal Appeal No.34 of 2015 (Delivered on 18th January 2018) lhe Sentence of 14 years' imprisonment was upheld by the Supreme Court where the victim was a daughter of the convict and aged 14 years at the time of defilement. ln Lukutago Henry v Uganda, Court of Appeal Criminal Appeal No.0036 of 2010 (Delivered on 16 July 2014) the appellant was convicted of the offence of aggravated defilement of a victim who was 13 years old. This court upheld a sentence of 13 years' imprisonment. ln Ogarm lddi v Uganda, Supreme Court Criminal Appeal No.0182 of 2009, the victim was 13 years old and the sentence of 15 years' imprisonment was upheld for the offence of aggravated defllement.

311 We, however, note that in none of the above cases was the finger of the perpetrator the sexual organ used to defile the victim as is the case in the instant matter. But what clearly emerges is that the sentence of 35 years' imprisonment term imposed by the High Court in the instant matter was out of range with the decided cases where the victim did not contract HIV in the process of defilement. A sentencing court has an obligation to take into account the binding precedents of this court and the Supreme Court in order to ensure consistency of its sentences with those of decided cases. That obligation is now 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 couri shall when sentencing an offender take into account ... the need for conslslence with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.'

321 The importance of the principle of consistency in sentencing was stated by the Supreme Court of Uganda in the case ol Aharikundira Yustina Vs Uganda, Supreme Couft Criminal Appeal No.27 of 201S,-lhus.

> '...lt is the du\ of this coul while dealing with appeals regarding sentencing to ensure consislency lth cases that have similar facts. Consrsfency is a vital principle of ^a

> > Page 8 of 10

- sentencing regime. lt is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation." - 331 We accordingly find that the trial Court erred in breaching the principle of consistency while sentencing the Appellant to 35 years' imprisonment. - 341 One of the circumstances under which the appellate Court may interfere with the sentence of the trial Court is where " ... it is evident that the [trial] Judge had acted on some wrong principle or overlooked some material factor. (See: James S/O Yoram V R [19501 18 EACA 147 at page 149 and Muhwezi Bayon Vs Uganda, Courl of Appeal Criminal Appeal No. 198 of 201s.) - 351 On account of the aforesaid, we allow ground two 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 juisdiction vested under any written law in the couft from the exercise of the oiginal jurisdiction of which the appeal originally emanated."

- 361 ln our exercise of the above mandate, we have considered the mitigating and aggravating factors as presented to the trial court, the age difference between the victim and the Appellant of approximately 35 years, and the fact that the parties were close neighbours. We have also considered the range of sentences in the cases of Aggravated defilement as detailed in this judgment, pursuant to the principle of consistence. We consider the term of 13 years' imprisonment as the appropriate sentence in the circumstances of this case. - 371 From that sentence, we deduct the period of about one year spent by the Appellant in pre{rial remand. Accordingly, the Appellant shall serve a term of 12 years commencing from the 19t of October 2020, the date of conviction.

# Disposition

- 1. The conviction of the appellant is upheld. - 2. The sentence imposed by the High Court is hereby set aside. - 3. The Appellant shall serve a term of 12 years commencing from the 2020, the date of conviction. 19th day of October

# We so order.

Delivered and dated this .. day of rnc^ 2024. Y

GEOF RYABWIRE Justice of Appeal MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal

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\*MONICA K. MUGENYI Justice of Appeal

\*This judgment was signed before the judge ceased Io hold that office.