[2024] UGCA 254

### THE REPUBLIC OF UGANDA

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

(Coram: Hon. Eva K. Luwasta, JA, Hon. Oscar Kihika, JA, Asa *Mugenyi*, JA)

### CRIMINAL APPEAL NO. 185 OF 2011

### **BETWEEN**

### RUREMA DEOGRATIUS::::::::::::::::::::::::::::::::::::

#### AND

**UGANDA :::::::::::::::::::::::::::::::::::**

(Appeal from the Judgment of the High Court sitting at Mbarara in Criminal Session Case No. 0119 of 2010 by Justice Akiiki Kiza delivered on 27^th May, 2011)

### **JUDGEMENT OF COURT**

### **Introduction**

The Appellant then a 50 year-old male, was charged, indicted and $1$ sentenced to 22 years' imprisonment for the offence of aggravated defilement contrary to Section 129 (3) (4) of the Penal Code Act. It was stated in the indictment that on the $7^th$ day of November 2009, at Rwarire 1 village in Mbarara District, the Appellant performed a sexual act with KN a child aged 10 years old.

$\mathbf{1}$

Shik M.

$\mathsf{S}$

# s Brief Facts

- 2l On 7th November, 2OO9 at Rwarire trading center in the Mbarara District, at around 8:O0pm, KN was sent by her mother Ms. Nansubaga Juliet to buy tea at the Hotel of a one Komuhangi. While at the Hotel, as KN waited to be served, the Appellant approached her under the guise that he wanted to tell her something. The Appellant carried KN to the latrine behind his home, unzipped his trousers, pulled out his penis and performed a sexua-l act with her. KN never revealed the matter to anyone for fear of being beaten. However, when KN reported to school, the class teacher discovered that there was something not right with her. - 3l The class teacher asked KN to remove her knicker which had ^a stench smell and the dress was also stained. She also had a discharge in her private parts. The teacher took KN to her mother to whom she disclosed that it was the Appellant who had performed a sexual act on her. The matter was reported to Mbarara Police Station by KN's mother and the Appellant was arrested and subsequently charged with defilement. KN was examined on Police Form 3 and it was confirmed that she was 1O years and with signs of penetration. - 4l At the trial, the Appellant, entered a plea of not guilty and the matter went to full trial. He was convicted and sentenced to 22 years' imprisonment. Dissatisfied with the sentence, the Appellant appealed to this Honourable Court on two grounds that;

M-V /r4\_t1. .-

i) The learned tial Judge ered in law and fact when he mnuicted the Appellant uithout proseantion adducing conclusiue eutdence to proue that there u-)as a sental act between the uictim and the Appellant, thus occasioning a mis carriag e of ju stice.

ii) The learned tial Judge erred in lau.t and fact when he imposed a harsh and excessiue sentence of 22 gears on the Appellant.

### Representation

- 5l At the hearing, the Appellant was represented by Ms. Princess Benita Namusisi while the Respondent was represented by Ms. Nabasa Caroline Hope, a Principal Assistant Director of Public Prosecutions. During the hearing of the appeal on 2nd September 2024, Ms. Namusisi indicated that she had fresh instructions to withdraw ground one of the appeal and prayed that it is struck off the record. Ms. Nabasa agreed but with one reservation that her learned friend ought to have notified them earlier to save them precious time to attend to other matters. 15 20 - 6l I considered Ms. Nabasa's submissions as fair. A counsel who intends to abandon part of the appeal ought to notify the Court and State of that decision as early as possible to save them needless attention to what is no longer necessa-ry. None the less, there being no objection to Ms. Namusisi's prayer, ground one of the appeal is struck off the memorandum of appeal, and we shall proceed to consider only one ground of appeal. 25

1)-tL b/ v.

# s Submissions for the Appellant

- 7l Counsel for the Appellant, attacked the severity of sentence. Citing the principle that this Court has only limited powers to interfere with a sentence, she argued that the trial Judge failed to consider the consistency principle. She cited for exarnple the decisions of Katende Ahmad vs Uganda, SC Criminal Appeal No. 6 of 2OO4, Katsigazi Januario vs Uganda, CA Criminal Appeal No.175 of 2Ol4 and Opio Samuel vs Uganda, CA Criminal Appeal No. 123 of 2O18, in which sentences of 10 years, 15 years and 14 years' imprisonment (respectively) were handed down by this Court and the Supreme Court for the offence of aggravated delilement. - 8l In her view, the circumstances of the case required that we exercise our jurisdiction to interfere and reduce the sentence. She submitted that the sentence meted out to the Appellant was harsh and excessive. She cited Kiwalabye vs Uganda, SC Criminal Appeal No. 143 of2OOl and Aharikundira Yustina vs Uganda, SC Criminal Appeal No. 27 of 2015. The latter in which the now well followed consistency principle was espoused. - 9l To buttress her arguments, counsel advanced what would be considered mitigating factors. She submitted that the Appellant a 64 yeu old man with no criminal record would be deprived of any hope of rehabilitation if the sentence is maintained. That had the tria-l Judge considered those factors, he would not have imposed such a harsh sentence. In conclusion she made a prayer for

,LU/ ⁴ \L

⁵ revision of the sentence after deduction of the period spent on remand.

## Submissions for the Respondent

101 Counsel for the Respondent, averred that this Appeal was filed out of time, three ald half months after conviction and that no application was made for extension of time. She prayed that the notice of appeal be struck out off the record. That objection was again raised at the hearing on 2nd September, 2024. Ms. Namusisi conceded, and giving reasons, sought leave to validate the Notice ofAppeal and the Memorandum ofAppeal. The Respondent agreed to drop the objection, and we allowed the prayer for validation. We shall now consider the grounds of appeal.

## Determination of Court

¹1l We have carefully studied the record, considered the submissions of both sides, as well as the law and authorities cited therein. A first appeal from the decision of the High Court requires this Court to review the evidence and make its' own inferences of law and fact. See: Rule 30(11 (a) of the Judicature (Court of Appeal Rules) Directions S. I l3-10 (COA Rulesl which is in tandem with the Supreme Court decision of Kifamunte Henry vs Uganda, SC Criminal Appeal No. 10 of L997, where it was held that on a first appeal, this Court has a duty to:

> "...reuiew the euidence of the case and to consider materials before the tial Judge. The appellate court must then make up

⁵ v

its own mind not disregarding the judgement appealed from, but carefully weighing and considering it."

This appeal was lodged against sentence only.

### **Analysis**

$\mathsf{S}$

- The Appellant contested the severity of the sentence arguing that $121$ the consistency principle was ignored a result of which the Court 10 arrived at a harsh sentence. Both Counsel provided previous decisions with sentences ranging from 10 years to 25 years' imprisonment for the same offence of aggravated defilement. - 13] We have perused both the submissions made in the allocution 15 proceedings and the sentencing order. In his sentencing Ruling the trial Judge held as follows:

"Accused is allegedly a first offender. He has been on remand for 1 year and 7 months which period I take into account while considering the sentence to impose on him. He is said to be *having a large family and that he has to look after it. He has* prayed for leniency and is also said to be remorseful. *However, accused committed a serious offence. Defilement is* a capital offence. He could be sentenced to death. Hence the law takes convicted defilers with strictness. In this case, the victim was a small girl. The accused used to visit them so according to his own wife, he used to send her to his home to run errands for him. PW1 even said that he used to call the *victim his " ka daughter" which means, he was talking to her* as his child. She must have trusted him, but accused *breached this trust and sexually ravaged her.*

$\cdot$ ank of:

⁵ He is said to be marrted to 2 wiues hence one u.rcnders uhat lrc was looking for in tltis small girl. In mg uiew the accused deserues a stiff sentence to march the grauitg of the offence. httting euerything into consideration, I sentence th.e accused the accused to 22 (twentg-two) gears impisonment.

### Right of Appeal explained."

- 141 We consider that the Judge carefully and equally considered what was presented as aggravating factors and those in mitigation. It was a well-balanced eva-luation for which we find no fault. We are aware that where a Judge's discretion in sentencing is well exercised, we cannot interfere with it. Although the Appellant presented cases where more lenient sentence were given, we are aware of others were more serious sentences were imposed. See for example; Kasibante Ssemanda Moses vs Uganda, CA, Criminal Appeal No. O68 of 2015. The Appellant in that case defiled a 7t/z girl and was sentenced to 25 years' imprisonment, and on appeal, this Court upheld the sentence. In Othieno John versus Uganda, CA Criminal Appeal No. 174 of 2OlO, this Court confirmed a sentence of 29 years' imprisonment for aggravated defilement of a victim of 14 years, as the Justices found no reason to interfere with the sentence. - 151 As pointed out by the Judge, the Appellant a man married to two wives, deliled a very young child, one who in the normal course of life, he referred to as his daughter. His actions abused her trust and caused her much harm at such a young age. It was a grave offence yet the factors he offered in mitigation that he was

l

- remorseful and repentant, paled in comparison to that serious $\mathsf{S}$ offence. - We therefore find no merit, in the appeal. Each case with its facts, $16$ and in this case, we consider that the facts fit the sentence that was imposed by the trial Judge. - In summary, the appeal fails and the sentence is upheld. The $17$ Appellant shall continue to serve his sentence. - We so order. $18]$

15 .day of September, 2024. Dated at Mbarara this 20 Eva K. Luswata **Justice of Appeal** 25 Oscar Kihika Justice of Appeal 30

Dr. Asa Mugenyi **Justice of Appeal**