[2022] UGCA 67

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CRIMINAL APPEAL NO. 186 OF 2014

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

¹⁰ NUWESHABA ASAPH} APPELLANT

## VERSUS

UGANDA} RESPONDENT

(Appeal from the decision of the High Court of Uganda at Mbarara in Criminal Session Case No. 330 of 2012 sitting at Mbarara before V. T Zehurikize, J delivered on the lZh of August, 2013)

# JUDGMENT OF COURT

The Appettant was charged with Aggravated Defitement contrary to section 129 (3) & (A)(a)(c) of the Pena[ Code Act, Cap. 120 taws of Uganda. He was tried and convicted as charged and sentenced to 15 years' imprisonment. The appe[[ant was aggrieved and appealed against sentence only.

The facts accepted by the triat judge are that the Appellant on 1()th June 2012 al Rwabaramira Cett in Ntungamo District had unlawful sexuaI intercourse with A J. MedicaI evidence showed that the girt was 14 years old and had had sexuaI intercourse and was pregnant. The appettant was her teacher at UniversaI Nursery Primary Schoot. The appeltant [ured the victim into sexuaI intercourse under the guise of assisting her in revising socia[ studies by going through past examination papers. The victim of the offence got pregnant and in a bid to hide the fact, the appettant decided that they leave the area. He went to Nyaihanga where he rented a room and lived with the victim as husband and wife. Four days later the appetlant was arrested by the potice. He found the appeltant guitty of aggravated defitement contrary to section 129 (3) (a) (a) (c) of the PenaI Code Act and sentenced the Appettant to 15 years' imprisonment.

⁵ Being dissatisfied with the decision of the High Court, the Appettant appealed against sentence onty on the sole ground that:

> The learned trial Judge erred in law and fact in imposing the sentence of 15 years' imprisonment on the Appeltant which is manifestty excessive and harsh in atl circumstances.

He prays that the sentence be set aside and substituted with a lesser and more appropriate sentence. 10

At the hearing of the appeat, the Appetlant was represented by Mr. Dhabangi Samuel on state brief white the respondent was represented by Mr. Ddungu Martin, Chief State Attorney for Director of Pubtic Prosecutions.

Both counsel addressed the court in written submissions. Mr. Dhabangi invited the court to consider the record which he reproduced in the submissions as well as the ruting on sentence and submitted that the issue for determination is whether the sentence of 15 years' imprisonment for aggravated defitement imposed on the appettant was harsh and excessive. ln the sentencing proceedings, the learned trial judge [istened to the aggravating factors submitted by the state and the mitigating factors submitted for the accused. He considered the fact that the appellant was a first offender, a young person at the age of 21 years

- at the time of sentencing and was repentant. He atso took into account the period of 3 years that the appe[[ant spent in pre-tria] detention. He invited the court to reappraise the background and devetopment in the case and reduce the sentenced to 12 years from the date of conviction. He referred the court to a string of authorities on the issue of sentence 25 - that we have taken into account. 30

!n reply Mr. Ddungu submitted that it is settled law that sentencing is at the discretion of the triat judge and an appeltate court witl only interfere with a sentence imposed by the triaI court if it is evident that it is based on the wrong principte or that the trial judge overlooked some material fact or if the sentence is manifestly harsh and excessive in the circumstances (see Kiwalabye Bernard v Uganda; SCCA No 143 of 2001, Kato Kajubi Godfrey v Uganda SCCA No 20 of 2014, and Kyatimpa Edward v Uganda: SCCA No l0 of 1995).

- ⁵ With reference to the sentencing notes of the [earned triat judge, the respondent's counsel submitted that it is clear that the triat judge considered both the aggravating and mitigating factors. He considered atl facts and circumstances of the case and deducted the period of one year and one month that the appe[[ant had spent on remand to reach ^a - sentence of 15 years' imprisonment. The appeltant did not refer to any material factor or circumstances that the triat judge did not take into account in passing sentence. In addition, counsel submitted that the peculiar circumstances of the case are that the convict introduced his pupit to early sex and there was need to discourage teachers from taking 10 - advantage of their position. The learned trial judge intended to protect the public from teachers who use their positions to take advantage of innocent young girts by exposing them to early sex. He submitted that it was important for the sentencing judge to take into account the right of the victims and the pubtic interest white sentencing a convict (see Busiku 15 - v Uganda; SCCA No 33 of 2011). The respondents counsel opposed any sentence below 15 years whose tikety consequence would be to expose the public and young school going girts to early sex by their own teachers. 20

He invited the court to consider severaI other decisions in similar cases for consistency as hetd in Mbunya Godfrey v Uganda; SCCA No 004 of 2011. He referred to severaI cases where sentences of defitement ranged between 11 years to 15 years with aggravated defitement being at the top end of l5 years. He prayed that this court confirms the sentence and dismisses the appea[. 25

#### Resolution of appeal 30

We have carefully considered the appellant's appeal which is on the sole issue of sentence.

It is trite law that an appellate court may interfere with a sentence imposed by the triaI court if the trial court acted on a wrong principle or misdirected itsetf or overlooked a materiaI factor. The court may atso interfere with a sentence that is manifestly excessive or too low as to amount to an injustice (See Ogato s/o Owoura v R (1954) 2l EACA 270, ⁵ James v. R, (1950) 18 EACA 147). These principtes have been emphasised over and over again and we need not betabour them in this appea[.

I

The sote ground of appeal is that: 'The [earned trial judge erred in [aw and fact in imposing a sentence of 15 years on the appetlant which is manifestly excessive and harsh in alt circumstances.' As far as the ground of appeaI is concerned, the question is whether 15 years' imprisonment for aggravated defilement is manifestty harsh and excessive given the circumstances. ln the ruting of the learned trial judge, he stated that:

! have considered submissions by both counse[ and the convict's prayer. !have noted that the convict is a young teacher of 24 years otd.

He appears repentant and would tike to look after his chitd the product of this offence. He has been on remand for one year and one month.

- ²⁰ 0n the other hand, he has committed a serious offence by introducing his pupit into earty sex. He misused his position. I have nevertheless noted that the victim is stitt at school and the offence was committed without any form of violence to the victim who was then 14 years otd. - Considering atl the witnesses of this and in a bid to discourage teachers from taking advantage of their position and having deducted the record of I year and one month spent on remand, ^I sentence the convict to a term of l5 (fifteen) years imprisonment. 25

We have carefully considered the record. The appeltant was charged with aggravated defitement contrary to section 129 (3) (a) (c) of the PenaI Code Act. There are however some inconsistent facts relating to the age of the victim. The summary of the case which was signed by the Resident State Attorney and dated 7th November2012 shows that on 1()th June 2012 the victim was 15 years old at the time of the offence. The medical report includes form 3 exhibit Pl shows that the victim was 14 years old as told by the father. The form was signed by a doctor and there was no attempt to show that the doctor considered the age of the victim worth 30 35

⁵ investigating. The medical examination report of UniversaI Healthcare Home in Ntungamo dated 13th of June 2012 reads as follows on the remarks:

a

For purposes of titigation this l4-year-otd was defited. She is pregnant 20 weeks.

- PWI Asaph Nkuba, the father of the victim testified that she was around ¹⁶years old on the date of the testimony on 4th Juty 2013. The offence took place on 6th June 2012 which suggests that the victim was about 15 years old. However, the record shows that the victim testified on 4th Juty 2013 when she was 15 years old suggesting that she could have been 14 years 10 - otd. There is inconsistency in the testimony of the father about the age of the victim. Section 129 (3) (A) (c) makes it an offence of aggravated defitement where the victim under l8 years is defiled by a parent or guardian who has authority over the person against whom the offence is committed. The appellant was a teacher of the victim and used his 15 - position to lure her into sex. They even started tiving together and the evidence suggested that this was to elude detection. !t is the father of the victim who traced the appe[[ant and found him in a neighbouring town where the victim and her teacher (the appettant) were tiving together as 'husband and wife'. 20 - The learned triaI judge considered att the material factors and even stated that the purpose of the sentence was to act as a deterrence. The victim and the appeltant have a chitd but this does not excuse the offence. We agree with the respondent that sentencing is at the discretion of the judge. The learned trial judge deemed it fit to pass a deterrent sentence in tight of the relationship of a teacher/student. 25 30

ln passing sentence, the learned triaI judge stated that he had considered submissions by both counsel and the prayer of the convict. The state attorney had submitted that he had no previous record of the convict who had been on remand for one year and one month. He then went on to

indicate the aggravating factors. 0n the other hand, as far as mitigation is concerned, the respondent's counsel submitted that the convict was 25 years, was not married and had no children but had two old parents whom he was looking after. He had apotogised to the victim and her 35

⁵ parents for the trauma they had gone through and that he was misted by retatives that is why he did not ptead guitty.

I

The [earned trial judge clearly took into account att the materiaI factors and did not have to expressty state that he had considered the fact that the convict had no previous record of conviction. He stated that he took into account the submissions of the counset. The learned triat judge exercised his discretion powers and sentenced the appeltant to ^a deterrent sentence within the range of sentences for cases of aggravated def itement.

Last but not least, the so]e ground of the appeaI is that the learned trial judge passed a manifestly harsh and excessive sentence. We have considered the duty of this court as wetl as the High Court as a court exercising ori ginaI jurisdiction to promote reconcitiation between parties as stipulated in article 126 (2) (d) of the Constitution. The victim and the appettant were tiving together as husband and wife and the victim 15

detivered a baby on 14th December 2012. PW1, the father of the appetlant stated that he was annoyed because the appe[lant had gotten his daughter pregnant. Secondly, the appettant had disappeared with his daughter and was renting premises in a neighbouring town. The appettant had disappeared from the school where he was a teacher. The appeltant 20

was remorseful and indicated that he wanted to take care of his baby girt whom he loves. Secondty, the victim of the offence continued with her schooting. The appellants counseI submitted that the court shoutd consider the interest of the chitd. 25

We find that this is one of those rare cases where reconciliation between the parties ought to have been promoted to create peace. The appettant shoutd be given a chance to take care of his daughter. 0n that basis we find that a sentence of 15 years' imprisonment woutd be harsh and excessive in the circumstances. We hereby set aside. 30

The appe[lant's counsel prayed that the court sentences the appetlant to 12 years' imprisonment. 0n the other hand, the respondents counseI submitted that a sentence of 15 years' imprisonment woutd be appropriate in the circumstances of the case. 35

- Having considered all the above factors, we think that the issue at hand $\mathsf{S}$ is that the victim and the appellant were living together. Secondly, there was room for reconciliation between the two families and the victim continued with her schooling. Thirdly there is a child who deserves to be taken care of by parents. The appellant was remorseful. He expressed a - desire to take care of his only child. In the premises, exercising the $10$ jurisdiction of this court under section 11 of the Judicature Act, we find that a sentence over 10 years' imprisonment would have been appropriate in the circumstances and would promote reconciliation between the parties. From that sentence we take into account the period - of one year and one month that the appellant spent in pre-trial detention 15 before his conviction. We accordingly allow the applicant's appeal against sentence which we have set aside. We sentence the appellant to 8 years and 11 months' imprisonment which sentence shall commence on the date of his conviction on 5^th July 2013.

Dated at Mbarara the $3^{\circ}$ day of <u>March</u> 2022

Justice of Appeal

ředrick Egonda – Ntende

Catherine Bamugemereire

**Justice of Appeal**

**Christopher Madrama**

**Justice of Appeal**

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