[2024] UGCA 323

#### ⁵ THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

#### (CORAM: Egonda-Ntende,Tibulya, Kazibwe Kawumi. JJA)

#### CRIMINAT APPEAL NO. OO55 OF 2OL2

#### (Arising from High Court Criminal Session Case No. 35 of 2011)

#### BETWEEN

# EVARISTO OKORA alias OVARI SUDDU APPELLANT

#### AND

# UGANDA RESPONDENT

(An appeal from the decision of Nyanzi, J, delivered at Arua on 28th January 2012)

JUDGMENT OF THE COURT

The appellant was indicted, pleaded not guilty, tried on two counts of Aggravated defilement contrary to Sections 129(3) and (4) of the Penal 20 Code Act and sentenced to life imprisonment on 29th February 20L2.

#### Background.

The appellant lived at Ajole Village in Nebbi District with other relatives. The victims whom we have referred to as "AC" and "MF" respectively were aged 12 and 8 years. They lived on the same village and are related to the zs appellant. On 11th June 2010 the two girls were left at the home of one of the relatives near the home of the appellant and their parents proceeded to their ga rde ns.

The appellant called them to his house and placed them on his bed before defiling them. MF cried in the process and was heard by her brother Kitu :o Charles of 1"2 years who peeped and saw the appellant defiling her. He stormed the room and asked the appellant what he was doing to the children. The appellant and the children were naked.


s Kitu ran out of the house to inform his mother and in the process the - appellant ran away only to be arrested later by the Village Defence Secretary. The matter was reported to Police. The victims were examined and found to have ruptured hymens and minor injuries in the genitals. The appellant was found to be 3l years old and of sound mind.

# ro Ground of Appeal.

The learned trial Judge erred in law in imposing a sentence of life imprisonment which was deemed to be manifestly harsh and excessive in the obtaining circumstances.

### Representation.

- rs Counsel Akello Alice Latigo represented the appellant on state brief while Ms. Happiness Ainebyona a Chief State Attorney in the Office of the Director Public Prosecutions represented the respondent. Counsel for the appellant applied for leave to appeal against sentence only and the leave was granted. Counsel for the parties filed submissions which with leave of 20 court were adopted as their final submissions in the determination of the - Appeal.

### Submissions by Counsel for the Appellant.

25 Counsel argued that the appellant was aged 31 at the time he was convicted and sentenced to a prison sentence for the rest of his life yet he was a first offender. lt was submitted that he was still young and capable of reforming into a good citizen. lt was also pointed out that he was ^a family man with two wives and seven children who needed his care.

The court was referred to Ainobushobozi Venencio V Uganda,Criminal

- 30 Appeal No.242 ol 2OL4 l20l4l UGCA 50 in which this court reduced a 30 years sentence imposed by the trial court to 72 years . Counsel also referenced Bikanga Daniel V Uganda, Criminal Appeal No.38 of 2O0O [2005] UGCA 75 in which the court substituted a sentence of 2l years with 12 years on a ppea l. - Counsel urged the court to set aside the sentence imposed by the trial court and substitute it with a sentence of l-4 years. 35

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### ⁵ Submissions by Counsel for the Respondent.

- It was submitted for the Respondent that the trial court correctly evaluated the aggravating and mitigating factors before arriving at life imprisonment as the appropriate sentence. The convict was an uncle to the victims who sustained injuries as a result of his conduct. - Counsel further argued that the maximum penalty for the offences committed by the appellant was death and the sentence imposed was in accordance with the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions,2013 which provide for a starting point of 35 years and a sentencing range of 30 years up to death. 10 - The court was urged to uphold the sentence imposed by the trial Court. 15

### Analysis.

As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the trial court and come to our own conclusions on the facts and the law while making allowance for the fact that we neither saw

#### nor heard the witnesses testify. 20

### See Kifamunte Henry v Uganda [1998] UGSC 20.

It is also established law that an appellate court will only alter a sentence imposed by the trial court if it is evident that it acted on a wrong principle, or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case.

### See Livingstone Kakooza v Uganda [1994] UGSC 17.

The maximum penalty for the offence of aggravated defilement is death which, however, is reserved for the rarest of the rare cases. The circumstances in which the offence the appellant was convicted of did not

warrant the death sentence and the trial judge opted for life imprisonment. 30

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⁵ We fou nd it imperative to reproduce the sente ncing order of the tria IJ udge

in the determination of the Appeal:

"The state asked this court to consider the circumstances of this offence as elaborated in the trial. The accused person's main point was his health not being good since he got an accident and also referred to family. The point of concern in cases of this nature was given by learned state Attorney to be the protection of the girl child. lf people like the accused are left unpunished in such a way that does not ring a bell, the children of this country would remain unprotected.

It is not easy to comprehend how the accused person claiming to be married to two mature ladies would leave them and attack the innocent children for sexual pleasure. His conduct was conduct of a selfish person who is driven by his desires. I have been forced to give this point more weight than others due to the conduct of the accused in the commission of this offence....... ^I have considered the period of 18 months the accused had been on remand. To warn society of the danger of abuse and considering the conduct of the accused, ^I sentence him to life imprisonment for each of the counts he is charged with. The sentence shall run concurrently." 20

We note from the above excerpt of the sentencing ruling that the trial court emphasized the protection of the girl child and did not give due weight to the mitigating factors to the disadvantage of the appellant. The age of the appellant and the fact that he was a first offender were not taken into consideration when arriving at the Life sentence. 30

c

- ⁵ It is also apparent that the trial court did not invoke the principle of consistency in sentencing. ln Aharikundira Yustina V Uganda, SC Criminal Appeal No.27 of 2005; [2008] UGSC 49 the court held that consistency is ^a vital principle in a sentencing regime and rooted in the rule of law. lt has to be applied with equality without unjustified d ifferentiation. - The sentence imposed by the trial court was harsh and excessive given the mitigating factors that were not at all considered by the court. We thus find it imperative to set aside the sentence of life imprisonment imposed by the court and re-sentence the appellant under Section 11 of the Judicature Act, which provides as follows; 10

'rll. Court of Appeal to have powers of the court of original jurisdiction.

For the pulpose 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 iurisdiction of which the appeal originally emanated.,,

We have considered the aggravating factors to be that the victims were g years and 12 years respectively and were related to the appellant who at his age was like a father to them with responsibility to guard but not ravish them, which amounted to an abuse of trust.

The trial Judge also noted that the offense of aggravated defilement was rampant and the girl child has to be protected from the likes of the appellant. The appellant also defiled two innocent girls, which further aggravates the sentence.

The mitigating factors, however, are that the appellant was a first offender and was a family man with two wives and seven children who required his care. He also pleaded in allocutus that he was sickly having had a hernia operation which fact was also alluded to by the witnesses during the trial. 30

I

- ⁵ At the age of 31, the appellant was also relatively young and could reform - into a more responsible citizen which could not be possible on account of the sentence imposed by the court.

ln determining the appropriate sentence, we have also considered the range of sentences in some of the decisions of this court on similar cases of aggravated def ilement.

ln Kabagambe Yoweri V Uganda, CACA No.659 of 2015 [2023] UGCA 341 the appellant who was 20 years old while the victim was 11years, pleaded guilty of aggravated defilement and on appeal this court did not interfere with the sentence of 22 years' imprisonment that was imposed by the tria ^I cou rt.

ln Tushabe V Uganda. CACA No.0425 of 2014 this court found a sentence of 22 years appropriate for the Appellant who had defiled a 3 year old ch ild and had been sentenced to Life imprisonment by the trial court.

ln Kimama Patrick V Uganda. CACA No.0139 ot 2O2L l2O24l UGCA 172 this court on 17th July 2024 confirmed a sentence of 25 years imposed by the trial court for the Appellant defiling a 12 years old child. 2A

ln Apiku Ensio V Uganda CACA No. 75L ol 2OL5 [2021] UGCA 15 this court reduced a sentence of 25 years against the Appellant who defiled a 14 years old child to 20 years.

ln Kasiita Tadeo V Uganda. CACA No.0179 ol 2Ot7 a20241UGCA 174 this court reduced the sentence of 43 years' imprisonment to 20 years on 17th July 2024. 25

ln light of the aggravating and mitigating factors as presented before the trial court and the decided cases set out here in above, we consider the term of 18 years' imprisonment for each of the two counts appropriate in

the circumstances of this case.

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- ^sThe sentences shall run concurrently. We shall deduct the period of ¹⁸ r' months the appellant spent on remand, he will serve 16 years and ⁶ months from the 28th January 2012 when he was sentenced.

Signed, dated and delivered at Gulu this.?tlt.y or QV ²⁰²⁴

Fredrick Egonda-Ntende Justice of Appeal

4.

et Tibulya ice of Appeal J

Moses Kazibwe Kawumi Justice of Appeal

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