[2024] UGCA 237

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CRIMINAL APPEAL NO.0466 OF 2020

# (Arising from Kampala criminal Session Case No. 140 of 2017)

*(Coram: Buteera, DCJ; Luswata & Kihika, JJA)*

# OKURUT MICHEAL ::::::::::::::::::::::::::::::::::::

### **VERSUS**

RESPONDENT UGANDA :::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda at Kampala 10 (FLAVIA SENOGA ANGLIN, J) dated the 23^rd day of July 2019 in High Court Criminal Session Case No.140 of 2017)

### JUDGMENT OF THE COURT

#### **Introduction** 15

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The appellant was convicted of the offence of **Aggravated Defilement** $c/s$ 129 (3) and (4) of the Penal Code Act. He was sentenced to 20 years' imprisonment, (period of 03 (three) years spent on remand to be deducted.

### **Brief facts**

her if she made an alarm.

It was the prosecution case that on the 28^th day of July 2016 at Salama road 20 in Kampala district, the appellant performed a sexual act with A. J., a girl aged 13 years.

The victim had been sent by her mother to water vegetables in the nearby garden at around 6: 00p.m and whilst in the garden, she was grabbed by the appellant who had sexual intercourse with her and threatened to kill

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At the conclusion of the trial, the appellant was convicted and sentenced to serve 20 years' imprisonmcnt (period of . J years spcnt on remand to be deducted). The appcllant being aggricved by the said decision preferred the instant appeal to this Honorable Court.

#### 5 Grounds of Appeal

- l. THAT the learned trial Judge erred in law and fact when she relied on a charge and caution statement which was irregularly admitted on record as to convict the appellant. - 2' THAT the learned trial Judge erred in law and fact when she meted out a manifestly harsh, excessive and vague sentence against the appellant.

### Representation

At thc hearing of the Appeal, the appcllant was reprcsented by Mr. Henry Kunya on private brief. The rcspondent was represented by Ms. Namazzi Racheal, Chief Statc Atorncy, of the officc of thc Direoor of public Prosecution s.

### Case for the appellant

counscl for the appcllant madc referencc to Kifamunte Heruy vs Uganda; S.c. Criminal Appeal No.l0 of 1997 and Bogere Moses & Anor vs Uganda;

s'C. Criminal Appeal No. 0r of 1997, on the duty of the first appellate court and procceded to submit on each of the grounds. 20

# Ground I

counscl for thc appcllant submirted that the learned trial Judge did rcly on an impugned charge and caution statement to convict the Appellant. He

2s argued that it has bccn held by the Supreme Court that it is not safe to

admit a Confession statement in evidence on the ground that counsel for the accused person has not challenged it. That unless the trial court ascertains from the accused person that he or she admits having made the confession statement voluntarily, the court ought to hold a trial within ^a

5 trial to determinc its admissibility. He cited the case of Omaria Chandia vs Uganda; Supreme Court Criminal Appeal No.23 of 2001.

Counsel submitted that in the absence of the impugned charge and caution Statement, the rest of the prosecution evidence was void of merit and could not be a basis for the conviction of the appellant.

Ground 2 10

> counsel for the appellant submitted that the sentence of 20 years' imprisonment (period of .i years spent on remand to be deducted) was manifestly harsh and excessive and was out of the sentencing range.

> He cited the case of Bikanga Daniel vs Uganda; CoA Criminal Appeal

No.38 of 2000, where the appellant had been sentenced to 2l years' imprisonment for the offence of defilement and on appeal, this honorable court reduced the sentence to l2 years'imprlsonment' 15

Counsel further submitted that the sentence was vague since the learned trial Judge did not take into account the period spent on remand and left this obligation to the prison authorities which was crroneous'

counsel thus prayed thar this Court be pleased to allow the appeal, quash the conviction and set aside the sentence.

### Case for the respondent

# Ground I

Counsel for thc respondcnt submitted thar the learncd trial Judge rightly considercd all lactors in admitting the charge and caution statement which was not ob.iectcd to by counsel for the accused/appcllant as shown on pagc 50 of the rccord, I 2,h paragraph, lines I 7"16-I751.

counsel furthcr challcnged the evidence basing on page 70 ol thc rccord, 5'r'paragraph lincs'2'2-27, (i,r,paragraph, lines 2g-.13 and 7,h paragraph, lines 35-37 wherc, whilc dclivcring judgement, rhe trial Judgc cvaluatcd the entire evidence on record. That he considered the fact that thc offencc complained of took place in broad day light and thc victim kncw the appellant well and was consistent in her testimony without being shaken in cross examination.

She contcndcd that thc trial .ludge did not rely only on the chargc and caution statement but the entire overwhelming evidence against the appellant which was sufficient to have the appellant convicted even in the absence of the charge and caution statement. Counsel thus prayed that this ground of Appeal be disallowed. 15

### Ground 2

Counscl for thc respondcnr cited the case of Kakooza vs Uganda trgg4] UGSC 1' whcrc it was hcld that an appcllate court can only intcrfcre with the sentencc whcre it is illcgal or founded upon a wrong principle of law or that the court failcd t<l consider a material factor or it is harsh and manifcstly cxcessive. 20

Counsel submitted that a 20-year sentence was not illegal, harsh or excessive given the fact that the maximum penalty is death for a case of aggravated defilement.

5 Counsel cited page 69, last paragraph, Iines 2488-2'192 and page 70 of the record, where the learned trial Judge took note of the fact that the appellant was a first time offender, with no previous criminal record, had been on remand for 3 years. Given the circumstances of the case where the appellant was a neighbor, the appellant defiled the t 3-year-old victim thrice in broad day light, a sentence of 20 years' imprisonment was neither harsh nor excessive.

Counsel prayed that the court upholds the conviction and sentence of ²⁰ years' imprisonment and the honorable Court exercises its original jurisdiction to deduct only the 3-year remand period and the appellant serves l7 years' imprisonment.

#### Court's consideration 15

This appeal is against conviction and sentencc. In rcsolving it, we are alive to the duty of the first appellate court to re-appraise the evidence at the trial court and come to its own conclusion. See Rule 30 (l) (a) of the Judicature (Court of Appeal) Rules. However, in doing that, we bear in mind that we did not have the opportunity to see and hear the witnesses as they restified. See selle and Another vs Associated Motor Boat Co; [1968] EA 123, Pandya vs R; [1957] EA 336 and Kifamunte Henry vs Uganda; Criminal Appeal No. l0 of 1997 (SC).

We shall also consider the written submissions that were adopted by this court at the hearing. 25

### Ground ¹

counsel for the appcllant challenged the manncr in which the appcllant's charge and caution statcment was admitted in evidcnce. According to him, it was not enough that it was not challenged by thc dcfense and rhat thc

trial Judge should havc conducted a trial within a trial, to ascertain that thc appellant made thc statement voluntarily.

The law that governs thc admission of confessions and such evidcncc as is in contention has becn wcll scttled by courts. In the case of omaria Chandia vs Uganda; Supreme Court Criminal Appeal No. 23 of 2001, the Suprcmc Court guidcd on how confessions should be treated. It held:

> "Because of the doctrine of presumption of innocence enshrined in Article 2g (3) of the Constitution, where, in ^a criminal trial, an accused person has pleaded not guilty, the trial court must be cautious before admitting in evidence ^a confession statement allegedly made by an accused person prior to his trial."

In thc instant case, it is discernible from the record of appeal that during the trial, prosecution tcndcred in evidence a chargc ancl caution statement that was made by thc appcllant. It was recordcd by pW5, D. C. Kasinga Godwin, who testificd and informed court on the procedure he had followcd to record it. Thc chargc and caution statcmcnt was admitted with no ob.lection from defcnsc counscl and markcd Exhibit ,p.5'. 20

The qucstion that ariscs from the appellant's contcntion is whether the lcarncd trial Judge was rcquircd t<l conduct a trial within a trial, cven whcn thc chargc and caution statcmcnt was admittcd with no objection or

contest. The Supreme Court offered guidance when it handled a case with similar facts in Omaria Chandia (supra), wherein it held:

> "Firstly we would reiterate what we have stated in our recent decisions that because of the doctrine of the presumption of innocence enshrined in Article 28 (3) (a) of the Constitution' where in a criminal trial, an accused person has pleaded not guilty, the trial court must be cautious before admitting in evidence a confession statement allegedly made by an accused person prior to his trial. We say this because we think that an unchallenged admission of such a statement is bound to be prejudicial to the accused and to put the plea of not guilty in question. It is not safe or proper to admit ^a confession statement in evidence on the ground that counsel for the accused person has not challenged, or has conceded to its admissibility. Unless the trial court ascertains from the accused person that he or she admits having made the confession statement voluntarily, the court ought to hold ^a trial within a trial to determine its admissibility: See Kawoya Joseph vs Uganda Criminal Appeal No. 50 of 1999 (Supreme Court) (urueported), Edward Mawanda vs Uganda Criminal Appeal No. 4 of 1999 (Supreme Court) (unreported) and Kwoba vs Uganda Criminal Appeal No. 2 of 2000 (Supreme Court) (unreported).

Therefore, and with respect, we think that it was improper for the learned trial Judge to admit in evidence the confession statement (ex. P3) of the accused on the basis that his counsel did not object. The Chief Justice's instructions

(supra) were approved by this court in such cases as Beronda vs Uganda (1974) E. A. 46 and Festo Androa Asenua and another vs Uganda S. Ct- Cr. Appeal No. 1 of 1998 (unreported). We said in Asenua's case that failure to comply with some aspects of the instructions contained in the Chief Justice's circular would not by that fact that alone affect the admissibility of a charge and caution statement unless such a failure goes to the root of the case. Obviously where a confession is the only incriminating evidence presented by the prosecution against an accused and the breach of the instructions is not satisfactorily explained, such breach may result in the rejection of the confession on such grounds that it is unreliable. Counsel for the appellant did not point out the injustice caused to the appellant and we find none."

- We are bound by the above quoted authority. We agree entirely that a 15 charge and caution statement should be treated with great caution. Such a statement should not be admitted automatically just because counsel for the defense raised no objection. Yet again, we would be careful to add that each case should be handled according to its unique facts. - In the instant case, counsel for the appellant faulted the trial Judge for 20 admitting the charge and caution statement without conducting a trial within a trial. Counsel did not point out the injustice that the omission occasioned to the appellant. A look at the record shows that the learned trial Judge noted that it was not objected to by counsel for the defense and 25 - she proceeded to point out that there was other prosecution evidence beside the charge and caution statement which placed the appellant at the

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scene of the crime. The conviction was not premised solely on the charge and caution statement. She held:

'Inthechargeandcautionstatementoftheaccused,recorded by PWS DC Kasinga Godwin, on 03.08.16, the accused admitted s having had sexual intercourse with the victim on tyvo other occasions. Heclaimedthatthevictimwashisgir\$rtendandthat she had told him she was eighteen years of age- Exhibit P5' The statement was admitted without any obiection by the defence'

Nonetheless this claim of the accused is belied by the consistent 10 evidence of the victim which was not contradicted in crossexamination, and that of the doctor which indicates that she was thirteenyearsatthetimeoftheoffence. Theevidenceofthe prosecution was consistent and not shaken in crossexamination. PWlthevictimwasfoundtobeatruthfulwitness.

15Thesubmissionsofcounselfortheaccusedthattherewere contradictions in the prosecution evidence that create doubt in the case are hereby reiected for those reasons'

ThisCourtfindsasafactthatthedefenceoftheaccused claimingignoranceofthecrimewasdisprovedandhewas 20placedatthesceneofcrimebythevictim. Theoffencetookplace on several occasions.'

In light of the above authority and the fact that counsel for the appellant did not highlight the injustice that was occasioned to the appellant when the learned trial Judge failed to conduct a trial within a trial, we would find zs no merit in the ground of appeal, and dismiss it accordingly'

## Ground 2

Counsel for the appclrant challenged thc sentence for being manifestry harsh, excessivc and vague. The challcngcd sentcncc rcads:

'The convict is sentenced to 20 years imprisonment the period of 3 years spent on rentand to be deducted...,

This Court has on sevcral occasions emphasized that thc duty to dcduct thc rcmand pcriod is upon thc scntencing court and as such, stating that 'remand period to be deducted leaves ambiguity regarding who should makc thc deduction. sce Naturinda Tamson vs. Uganda; C. A. Criminal Appeal No. 123 of 2011, Omundanihare Godwin vs. Uganda; C. A. Criminal Appeal No. 0176 of 2Ot7, and Kabogere patrick vs. Uganda; C. A. Criminal Appear No. 0g3 of 202r. wc reiterate that an ambiguous sentencc makcs it difficult for prison authoritics to cxecute and because of that ambiguity, it is rendered a nullity since an accused pcrson docs not know what cxact scntcncc they are to serve. In this case, we find the sentence passed by the learned triar Judge to be a nuility on account of vagucncss and ambiguity. We accordingly sct it asidc. 10

we shall invokc thc powcrs of this court under Section I I of the.ludicature Act, Cap 16, to rc- sentcnce thc appellant. Thc Section provides:

"For the purpose 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 jurisdiction of which the appeal originally emanated.', 20

In this case, wc note that the appcllant was a first offender and had been on remand for threc ycars. He scxually abused thc victim on sevcral )<

occasions and went ahead to threaten to kill her and her family if she ever revealed what he was doing to her. She always went back home distressed and crying. That sh<lws that he had madc her life very difficult. Such a person deserves to be kcpt out of circulation to help him reconsider his ways, but also to protect otheruulnerable young girls.

We are cognizant of the fact that the offence with which the appellant was convicted attracts a maximum penalty ol death. Under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) (Directions), 2013, the starting point for aggravated defilement is 35 years and the sentencing range is betwecn 30 years and death.

In the circumstances of the case, we find a sentence of 23 years' imprisonment to be appropriate. From this, we shall deduct the three years that the appellant had spcnt on remand. He will therefore serve 20 years' imprisonment, starting from 25'r' July 2019, when the sentence was pronounced.

o Dated at Kampala this .....,3 .. day of P1+5......... zoz+ (

Richard Butccra

Depu Chief Justice

^E a K. Lus al Justic Appeal

V o ar ihika Jus CE fA eal