[2023] UGCA 248

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU CRIMINAL APPEAL NO.307 OF 2017

## [CORAM: Egonda-Ntende, Bamugemereire & Mulyagonja, JJA]

# OKWAIRWOTH JAKAN ::::::::::::::::::::::::::::::::::: VERSUS

**RESPONDENT** UGANDA::::::::::::::: (Appeal from the decision of Stephen Mubiru J, in High Court Criminal Session No. 58 of 2015 dated 4^th July 2017at Arua)

## JUDGMENT OF THE COURT

appellant was indicted for the offence of Aggravated The Defilement contrary to section 129 (3) and (4) (b) of the Penal Code Act. It was alleged that on the 5^th day of January 2013 at Namwuho village in Nebbi district, the appellant had unlawful sexual intercourse with BF, a girl below the age of 18 years while he was HIV positive.

#### Background

The facts, as ascertained from the lower court record are that on $5^th$ January 2013, BF together with her sisters attended the funeral rites of their aunt's husband at Narwodho Pangene in Nebbi Town Council. It is alleged that in the evening of that day ( $5^th$ January 2013), the appellant supplied a potent gin commonly known as 'waragi' to BF's sisters and suggested to BF to go with him to a nearby kiosk where he would buy her a soda. BF accepted and took a walk with the appellant but when they reached a soccer pitch, the

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appellant grabbed her, threw her down, got hold of her mouth, lowered his trousers, and forcefully performed a sexual act on her. While still in the act, Ongeiwun Dennis, a cousin to the appellant caught them and rescued BF. He took her back to her aunt's place. The following day, BF disclosed to her aunt of what Okwairoth had done to her. The matter was reported to police. BF underwent medical examination. **PF 3A** indicated that she was about 14 years old, had a ruptured hymen and bruised labia and the cause of injuries was sexual intercourse. The appellant was also medically examined. It was established that he was 34 years old and HIV positive. He was subsequently indicted, tried, convicted and sentenced to Life Imprisonment. The appellant was aggrieved by the conviction and sentence and lodged this appeal.

#### Grounds of Appeal

- 1. That the learned trial Judge erred in law and fact when he ignored the age of the girl and convicted the appellant of an offence of aggravated defilement hence occasioning a miscarriage of justice. - 2. That without prejudice to the foregoing, the learned trial Judge erred in law and fact when he sentenced the appellant to Life imprisonment, which was illegal and excessive.

#### Representation

At the hearing of the appeal, Mr. Stephen Lobo Akera represented the appellant on state brief while the respondent was represented by Mr. Joseph Kyomuhendo, a Chief State Attorney from the Office of the Director of Public Prosecutions.

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### The Partieg' Submineione

Ground No. 1: the trial Judgp erred in law and fact when he ignored the age of the gfuI and convicted the accueed of an ofrence of Aggravated Defilement hence occaeioning a miecariagp of juetice.

Counsel for the appellant submitted that according to the law on Aggravated Defilement (section 129 (3) and (4) (a) the victim ought to have been below the age of 14 years for the appellant to be found guilty of the offence of Aggravated Defilement. Counsel submitted that it is trite that the age of the victim is proved by medical evidence. birth certifrcate, evidence from the victim parents or guardians and by mere observation and common sense.

> Counsel submitted that no evidence was adduced by prosecution to prove the actual age of BF save for a medical report which contradicted the evidence ofher father. Counsel contended that the victim in this case was above 18 years. He argued that given the age of the victim, the High Court should have charged the appellant with a different offence other than Aggravated Defilement. He relied on section 87 of the Tlial on Indictments Act, which is to the effect that when a person is charged with an offence and the facts are proved which reduce it to a minor and cognate offence, he or she should be convicted of the minor and cognate offence even when he was not charged with it. To support his propositions, counsel cited Usandav L,eoMubvazr'tn & 2 Ore [f SZ2] HCB 170 and Paipai Aribu v UeaDda [rgea] 78A624.

Gmund No. 2: That without prejudice to the foregoing, tbe leamed trial Judge erred in law and fact when he e€ntenced the appellant to Life inprisonment, which wae illegal and excessive.

Counsel for the appellant submitted that the custodial sentence of Life imprisonment was extremely excessive and illegal. On legality of sentence for life imprisonment counsel evaluated the decisions of Tieo Stephen v Uganda SCCA No. 8 of 2008. which held that Life imprisonment means imprisonment for the natural life of the appellant and Livingstone Kakmza v Uganda SCCA No. 17 of 1993 where Life imprisonment in accordance with eection 47 (7) of tlre Prisons Act a sentence of 20 years imprisonment. Counsel pondered which of the two decisions ought to be considered considering the appellant's sentence in this case. Counsel further referred to the recent decision in Sundya Muhamudu & Ors v Attorney Gooelal Conetitutional Petition No. 24 of 2019 and deliberated on its application in this appeal.

Finally, it was counsel's submission that the trial Judge did not take into consideration the period the appellant spent on remand. He prayed that this court reconsiders and reviews the harsh sentence and reduces it to 16 years or releases the appellant.

In reply to the first ground of appeal, counsel for the respondent submitted that the appellant's counsel misdirected himself on the law of Aggravated Defilement contrary to section 129 (3) and (4) (a) of the Penal Code Act instead of (4) (b), the law under which the

appellant was charged. Counsel added that under subsection (a) (b), the victim must be below 18 years and not 14 years as counsel for the appellant submitted.

Counsel for the respondent submitted that the prosecution adduced both medical evidence and that of the father of the victim to prove that the victim was below 18 years. He submitted that the medical report indicated that BF was of the apparent age of 14 years while the father's evidence placed her at the age of 17 years. He argued that there were no major contradictions in the testimonies of PWl and PW4. Counsel added that PW1 estimated BF's age basing on science/features of development while PW4 testified about facts which were within his knowledge. He knew her date of birth. However, both witnesses placed BF below 18 years. Counsel contended that the learned trial Judge rigorously evaluated the evidence as to the age of the victim and arrived at the conclusion that a girl under the apparent age of 18 years had been defrled by a man who was HIV positive hence the offences preferred against appellant. Counsel argued that Ground No. t has no merit and ought to be dismissed.

In reply to the eecond ground, counsel for the respondent submitted that the sentence of Life imprisonment is neither harsh nor excessive. He submitted that the trial Judge considered the appellant's mitigating and aggravating factors to arrive at the sentence of life imprisonment. He contended that the offence of 20

Aggravated Defilement attracts a maximum sentence of death. In this case, the appellant an HIV positive male adult, performed a sexual act on his victim, an underage girl, without any protection. Counsel cited Bacwa Benon v U CACA No. 869 of 2014 where this court confirmed a sentence of life imprisonment for the appellant who had pleaded guilty to Aggravated Defilement. Counsel further referred to Bonvo Abduf v Ueanda SCCA No. 07 of 2011, where the Supreme Court confirmed a sentence of life imprisonment of the appellant who was HIV positive. He submitted that in the present case, the sentence of Life imprisonment imposed on the appellant is justifiable in the circumstances and there is no reason for this court to interfere with it.

Regarding the legality of sentence, counsel contended that Article 23 (8) ofthe Constitution does not apply to the present case as the trial Judge intended that the appellant spends his natural life in prison. He prayed that this appeal be dismissed, and the sentence of Life imprisonment imposed on the appellant be upheld.

### The Decision of the Court

We have carefully considered the appeal, the submissions of counsel, the record of appeal the authorities cited and the law generally. This being a first appeal from the decision of the High Court in the exercise of its original jurisdiction, this court is required to reappraise the evidence and draw its own inferences of 6 20

fact (See rule 30(1) (a) of the Judicature (Court of Appeal Rulee) Dircctions, S1 13'10, which provides that: (l) On any appeal from ^a decision of the High Court acting in the exercise of its original jurisdiction, the court may' (a) reappraise the evidence and draw inferences of fact). Additionally, the court is required to caution itself on the fact that it does not have the same advantage as the trial judge in observing and hearing the witnesses testify and should thus make due allowance for that (See Pandya v R h96d EA 336).

10 15 In Ground No. 1, the appellant's grievance is against conviction on the basis that the victim was above 18 years at the time the incident took place and therefore that the appellant was wrongly charged with the offence of Aggravated Defilement. The second contention is that the medical evidence in form of the medical report relied upon by the trial court was contradicted by the evidence of the victim's father.

> We have critically re-evaluated the record of appeal. Our minds were specifically drawn to the medical report PF3A dated 7th January 2013. This report was admitted by the parties during trial and marked Exhibit P1. The report of Stephen Oryema, a Clinical Officer at Nebbi Hospital where the examination took place, was that on 7th January 2013 he examined BF. She was ofthe apparent age of 14 years; her mental status was normal. She presented with a ruptured hymen and bruised labia. The probable cause of the

injury was sexual intercourse. A urinalysis was done, and pus cells and many spermatozoa were seen. The report also indicated that BF was 14 years based on her dental formula. We have additionally evaluated the testimony of BF (PW3) on 20th June 2017. She stated that she was 19 years old when she testified. The incident took place on 5th January 2013 implying that BF was about 14 years when she was defiled.

The most probable way, or at least one of the ways to prove the age of a child is by production of their birth certificate. However, courts have looked at other ways to prove the age of a child, which are include the testimony of the parents or the court's own observation and common-sense assessment of the age of the child.

In this case, prosecution procured the medical evidence of PWI Stepben Otyema, a Medical Clinical Officer who examined the victim on 7th January 2013, two days after the offence was alleged to have been committed and through his report, exhibit P1, he certified that the victim was about 14 years at the date of examination. This evidence was admitted and never contested by the appellant during cross -examination.

PWl, (Charlee OkellowarSp) BF's father testified that she was born around 12th May 1995 and the incident took place on 5th January 2013 indicating that BF was 17 years at the time. 20

> We have re'appraised the lower court record and analyzed the charge sheet. We wish to point out that counsel for the appellant 8

wrongfully relied on section 129 (3) and (4) (a) of the Penal Code Act as the provision under which the appellant was charged. For clarity, the appellant was charged with the offence of Aggravated Defilement contrary to section 129 $(3)$ and $(4)$ $(b)$ of the Penal Code Act, Cap 120 as amended. For ease of reference, we shall reproduce the section below:

$129$ (3) Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

$(4)$ The circumstances referred to in subsection $(3)$ are as $follows-$

(a) where the person against whom the offence is committed is below the age of fourteen years.

(b) where the offender is infected with the Human <u>Immunodeficiency Virus (HIV) (Underlined for emphasis)</u>

The law provides for the circumstances obtaining in this defilement. The appellant was charged under section 129 (3) and (4) (b) which provides for the age of a victim. The victim ought to be below the age of 18 years. The offender was found to be HIV positive at the time. The medical examination of the appellant, PF24 admitted and marked in court as **Exhibit P2** proves that the appellant was HIV positive. The appellant in his evidence admitted that he was on ARVs since 2006, having been found to be HIV positive.

Counsel for the appellant contended that the medical report upon which the trial Judge relied to convict the appellant was rife with contradiction. He particularly drew the court's attention to the

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evidence of Charles Okellowange, the victim's father. His testimony was that the victim was born around 12 May 1995. This would make the victim a few months shy of l8years of age when the incident took place. There is a contradiction regarding the victim's age. It, however, does disprove the fact that the victim was below the age of lSyears when the offence took place. The threshold for this particular offence is that the victim need not be 14 years as counsel for the appellant had testified. The victim must be below the age of 18 years. We can safely conclude that this victim was below the age of 18 years.

The appellant was tested, see Exhibit P2, and was found to be infected with the Human Immunodeficiency Virus. The law is to the effect that any person who defiles a child below the apparent age of 18 years under circumstances where the offender is infected with the Human Immunodeficiency Virus (HIV) commits the offence of aggravated defilement. The appellant falls squarely within the elements of this offence.

Given the totality of the evidence adduced against the appellant, we conclude that the trial Judge did not err when he found the appellant guilty of the offence of aggravated defrlement contrary to section 129 (3) and (4) (b) ofthe Penal Code Act.

Ground No. 1 of the appeal therefore fails for lack of merit.

**Regarding Ground No. 2**, counsel for the appellant opposed the sentence of Life imprisonment meted out against the appellant. He submitted that the sentence was illegal, harsh, and excessive.

We are mindful of the fact that we cannot interfere with the sentence imposed by the trial court which exercised its discretion unless such sentence is illegal or is based on a wrong principle or the court has overlooked a material factor or that the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. (See **Kamya Johnson** Wavamuno v Uganda SCCA No. 16 of 2000 and Livingstone Kakooza v Uganda SCCA No. 17 of 1993).

In this appeal we had the opportunity to re-appraise the sentence passed by the learned Trial Judge. In his sentencing, he remarked that:

"I have taken into account the mitigating factors as elucidated by the convict and his counsel. Despite that mitigation, the circumstances of the case are sufficiently grave to warrant a deterrent custodial sentence. The convict knew or had reasonable cause to believe that he was HIV positive at the time he committed the offence. That he forcefully had sexual intercourse $\quad\text{with}\quad$ $\quad\textbf{the}\quad$ victim unprotected is manifestation of a callous disregard of the life of others when he exposed the victim, who was also his cousin, to the danger of contracting HIV at the tender age of 14 years. The accused was aged 34 years at the time of the offence and the age difference between the victim and the convict was 20 years. The victim suffered physical and psychological pain. It is for those reasons that I have considered a starting point of twenty imprisonment. Accordingly, vears' $\quad\textbf{in}\quad$ light of those aggravating factors, the convict deserves to spend the rest of

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his natural Iife in prison. The convict is hereby sent€nced to Life imprieo"-ent.'

The appellant made two arguments concerning the sentence of life imprisonment. First, that it was illegal basing on the meaning of life imprisonment. The question was whether the sentence of life imprisonment should be 20 years or whether it should be imprisonment for the natural life of the appellant. Secondly, he argued that because the trial judge passed a sentence of life imprisonment, the period spent on remand was not considered. Counsel also submitted that the sentence was therefore harsh and excesslve.

Before we proceed to analyse the excessiveness of the sentence, we shall first discuss the meaning of life imprisonment as alluded to by counsel for the appellant. Counsel referenced Livinegtone Kakooza v Usanda( eupra). Wambuzi CJ, held that a first offender who was sentenced to 18 years in effect received a life sentence which according to section a90) of the Prisons Act, Cap. 313, stipulated that for the purpose ofcalculating remission of sentence, imprisonment for life shall be deemed to be twenty years imprisonment. The court departed from that decision in Tigo Stephen v Ucanda SCCA No. 8 of 2008. which held that Life imprisonment means imprisonment for the natural life of the appellant. The question as to what amounts to life imprisonment is rather contentious, particularly for circumstances that occurred after Tigo and before the passing of the Law Revision (Penalties In

Criminal Matters) Miscellaneous Amendments Act. Counsel also referred to the Constitutional decision in Sundya Muhamudu (euprd, which we do not wish to consider for the reason that it was stayed by the Constitutional Court pending a final determination on the matter by the Supreme Court.

Given that the decision passed in Sundya has been stayed pending hearing ofthe appeal by the Supreme Court sitting as the appellate court in constitutional matters, Tigo is therefore still the prevailing Iaw and therefore courts will have to still grapple with what amounts to a sentence of life imprisonment.

Counsel for the appellant submitted that the period spent on remand was not deducted. In this case we find the submission moot since the appellant was sentenced to life Imprisonment.

We shall now proceed to determine whether the sentence of Life imprisonment was excessive in the circumstances.

It is now a principle of law that while sentencing, courts are enjoined to consider other cases with similar facts to ensure consistency, in Aharikundira v Uganda SCCA No. 27 of 2016, it was held that:

"It is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unj ustifiable differentiation."

We refer to earlier decisions on the offence of Aggravated Defilement with somehow similar circumstances although not the same.

In Bonyo v Uganda, SCCA No. 07 of 2011 (unreported), the Supreme Court confirmed a sentence of life imprisonment for aggravated defilement, where the appellant was HIV positive.

In Bacwa v Uganda, CACA No. 869 of 2014 (unreported), this Court upheld a sentence of life imprisonment as appropriate for Aggravated Defilement. The Court considered the sentence appropriate because the appellant was HIV positive and had defiled and infected the victim, a child of only 10 years.

In Anguyo Silver v Uganda CACA No. 38 of 2014 this court set aside a sentence of 27 years' imprisonment for being harsh and imposed a sentence of 25 years imprisonment on the appellant who had defiled a 7'yearold girl while he was HIV positive.

In Trvesig5re Esau v Ueanda CACA No. 31 of 2018, this court found a sentence of 32 years imprisonment imposed on the appellant excessive and set it aside and imposed a sentence of 25 years imprisonment. The appellant in this case was HIV positive and he defiled an 8-year-old girl.

Based on the above analysis of authorities and the circumstances of this case, we believe that the sentence of Life Imprisonment was harsh and excessive, and we set it aside.

We shall therefore proceed to determine a fresh sentence for the appellant pursuant to section 11 of the Judicatrue Act, Cap. 13 which vests this Court with the powers of the trial Court, which powers include imposing a fresh sentence, where the sentence of the trial court is set aside for being harsh and excessive, among other reasons.

In this matter, the mitigating factors submitted were that the appellant was a frrst offender, aged 32 years with family responsibility and is HIV positive.

We have considered all factors and we find that in this case, it is not indicated that the victim acquired HIV/AIDS. A determinate prison sentence would suffice unlike the Bacwa (supra) where ^a sentence of life imprisonment was maintained owing to the child acquiring HIV from the appellant. In fiboruhanga and Anguyo (eupra), court-maintained sentences of 25 years' imprisonment owing to the victims never acquired HIV. 10

> We therefore find a sentence of 18 years imprisonment appropriate in the circumstances of this case. From that sentence, we shall deduct the period of 3 years and 7 months the appellant spent on remand as mandated under Article 28 (3) of the Constitution.

> The appellant will serve a sentence of 14 years and 5 months imprisonment which will commence on 3'd August 2017 being the date ofconviction.

Ground No. 1 failed

Ground No. 2 was partly successful.

The appeal is partially successful.

Dated at Gulu this.... $2^{th}$ day of....................................

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Fredrick Egonda-Ntende **JUSTICE OF APPEAL**

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Catherine Bamugemereire **JUSTICE OF APPEAL**

Irene Mulyagonja JUSTICE OF APPEAL