[2021] UGCA 89

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CRIMINAL APEAL NO. 570 OF 2014

(Arising from the Judgment of the High Court at Entebbe before Her Lordship Elizabeth Ibanda Nahamya in Criminal Session Case 001 of 2012 delivered on 26^th May, 2014)

Ssenyonjo Muhammed ::::::::::::::::::::::::::::::::::: **Versus**

$\textbf{Uganda} :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: \textbf{Respondent}$ 15

Hon. Mr. Justice Geoffrey Kiryabwire, JA Coram: Hon. Lady Justice Catherine Bamugemerire, JA Hon. Mr. Justice Remmy Kasule, Ag JA

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# Judgment of the Court

This appeal arises from the Judgment of the High Court sitting at Entebbe (Elizabeth Ibanda Nahamya, J) in Entebbe Criminal Session Case No.001 of 2012 delivered on 26^th May 2014. The appellant pleaded guilty to aggravated defilement contrary to Section 129(3) and (4) (a) of the Penal Code Act and was sentenced to 43 years and 22 months imprisonment.

Dissatisfied with the sentence, the appellant appealed to this Co Been Du against sentence only.

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### **Background**

The facts of the case, as accepted by the Trial Court were, that the appellant aged 40 years, was the biological father of the victim, Nazziwa Sarah, aged 14 years whose mother, Nalubega Cissy, was wife to the appellant. The three stayed in one home in Kazinga zone "B", Nsangi sub-county, Wakiso District.

On $2^{nd}$ February, 2013, at about 4.30 p.m. the appellant returned home and found the victim there but the mother was away. The appellant forcefully took the victim in his bed room and made her 40 lie on the matrimonial bed, smeared oil in her vagina, forced the victim to swallow a pill and thereafter started defiling her. At the end of the exercise, the appellant told the victim to keep quiet about the incident so as to avoid being killed.

Later the mother returned home and she noticed that the 45 bedsheets of the matrimonial bed were wet with semen and blood stains. She became suspicious. She took the victim to a nearby medical clinic. The victim then revealed to the medical staff that her father, the appellant, had defiled her and that the appellant had done this on previous occasions, giving her a pill to swallow 50

before using her.

The victim's mother reported the matter at Kikajjo Police Post who came, recovered a bed sheet with semen and blood stains. The victim was further examined and was found with a ruptured hymen.

The appellant was later arrested, charged and tried in the High Court sitting at Entebbe. He pleaded guilty to the offence and wa 观 sentenced to 43 years and 22 months imprisonment.

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He was dissatisfied with the sentence, hence this appeal premised on a single ground that: 60

### "The learned trial Judge erred in law and fact when she passed a manifestly harsh and excessive sentence against the Appellant".

At the hearing, the appellant was represented by learned Counsel John Mary Kimurahebwa on state brief, while the learned Chief 65 State Attorney Namatovu Annet was for the respondent.

Both Counsel for the respective parties with permission of Court, filed written submissions.

Due to the Covid 19 Pandemic and obtaining Government control Health Regulations the appellant remained at Luzira Government 70 Prison but through video conferencing and communication technology applied by the Court, was able to participate in the Court proceedings and was in constant communication with his Counsel and the whole Court, throughout the Appeal hearing.

Learned Counsel for the appellant applied for leave to appeal 75 against sentence only pursuant to section 132 (1) (b) of the Trial On Indictments Act and Rule 43 (3) (a) of the Court of Appeal **Rules.** Counsel for the Respondent did not oppose the application. This Court granted the leave.

#### Submissions for the Appellant: 80

Learned appellant's Counsel relying on Rule 30 (1) of the Rules of this Court and the case of **Kifamunte Henry Vs Uganda:** Supreme Court Criminal Appeal No. 10 of 1997, where Court held that the first appellate Court has the duty to review the

- evidence of the case and to reconsider the materials before the trial 85 Judge and thereafter make up its own mind not disregarding the Judgment appealed from, called upon this Court to review the evidence before the trial Court and reach its own conclusions on the said evidence. - Learned Counsel then referred to the case Livingstone Kakooza $90$ vs Uganda: Court of Appeal Criminal Appeal No. 17 of 1993, where this Court held that an appellate Court will only alter a sentence imposed by a trial Court, if it is evident that Court acted on a wrong principle or overlooked some material fact or if the sentence is manifestly excessive in view of the circumstances of 95 the case, and submitted that the sentence of 43 years and 22 months imprisonment passed against the appellant was too harsh and excessive in the circumstances. He prayed this Court to set the same aside by reason thereof. - Appellant's Counsel invited this Court to consider the fact that the 100 appellant was very remorseful during the trial, regretted the offense he had committed and asked for forgiveness.

Referring to Paragraph 36(c) (d) and (g) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, learned Counsel argued that the appellant's 105 being remorseful, having pleaded guilty and thus save the time and other resources of the Court, and also being a first offender were factors that the learned trial Judge ought to have taken into account, but she had not.

Appellant's Counsel also prayed this Court for a more lenient $110$ sentence for the appellant since he is a family man with four

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children, ages 17,15,7 and 6 years respectively and there was need to take care of their well-being.

Counsel referred to the case of **Aharikundira Yusitina Vs Uganda:** Supreme Court Criminal Appeal No. 027 of 2015, where the $115$ Court noted that the duty of the appellate Court while dealing with appeals regarding sentences is to ensure consistency with sentences made in past cases that have similar facts.

Counsel further referred this Court to the case of **Bantegeye Vs**

Uganda: Court of Appeal Criminal Appeal No. 154 of 2012, $120$ where the appellant, was convicted by the High Court on his own plea of guilty of the offence of aggravated defilement, and was sentenced to 13 years imprisonment. On appeal, the sentence was reduced to 10 years imprisonment.

Counsel also cited to this Court the case of Birungi Moses vs 125 Uganda: Court of Appeal Criminal Appeal No. 117 of 2014, where the appellant was convicted of the offence of aggravated defilement and sentenced to 32 years imprisonment by the High Court. On appeal, this Court set aside the said sentence and substituted the same with a 12 years imprisonment sentence. 130

Appellant's Counsel also referred this Court to the case of Ninsiima Gilbert vs Uganda: Court of Appeal Criminal Appeal No. 180 of 2010, where the appellant was convicted of the offence of aggravated defilement, and was sentenced to 30 years imprisonment. On appeal to this Court, the sentence was substituted with a 15 years imprisonment sentence.

In conclusion, learned Counsel invited this Court to invoke Section 11 of the Judicature Act, Cap 13, set aside the sentence

of 43 years and 22 months imprisonment for being too harsh and excessive and impose a more lenient sentence on the appellant. 140

#### **Submissions for the Respondent:**

Counsel for the respondent opposed the appeal and supported the sentence of 43 years and 22 months imprisonment imposed by the trial Court upon the appellant. Learned Counsel referred this court

- to the Constitution Sentencing (Guidelines for the Courts of 145 Judicature) (Practice) Directions, 2013, that set out the starting point of sentence for aggravated defilement to be 35 years imprisonment and the sentencing range to be between 35 years imprisonment to death. - Counsel further supported the sentence passed by the learned trial 150 Judge, because before passing the same, the learned Trial Judge considered and took into account both the mitigating and the aggravating factors. Learned Counsel basing herself on paragraphs 20, 22, 34, 35 of the Guidelines and the authority of Tigo Stephen - Vs Uganda: Supreme Court Criminal Appeal No. 08 of 2009, 155 prayed this Court not to interfere with the sentence imposed by the trial Court as the same had not been shown by the appellant to be illegal, or to be too harsh and/or excessive in the circumstances of the case, so as to amount to a miscarriage of justice. 160

Counsel prayed this court to dismiss this appeal as being without merit.

## **Resolution by Court** 165

This Court has carefully considered the court record of the trial Court and also the submissions of both Counsel. This being the first appellate court, the duty of this Court is to review and reevaluate the evidence adduced before the trial court, by subjecting that evidence to fresh scrutiny, draw inferences there from and 170 reach our own conclusion as to the legality and appropriateness of the sentence passed upon the appellant. See: **Rule 30(1) (a) of the** Judicature (Court of Appeal Rules) Directions SI 13-10, and also George Wilson Simbwa Vs Uganda, Supreme Court Criminal Appeal No. 37 of 1995 and Begumisa and others Vs 175 Tibebaga, Supreme Court Civil Appeal No. 17 of 2002.

This Court observes that the trial Court record clearly brings out the fact that, the trial Judge in arriving at the sentence passed upon the appellant, considered both the aggravating and mitigating factors. The aggravating factors considered were that 180 the father, now the appellant, defiled his biological daughter, on a number of occasions and threatened her with death if she disclosed to anyone else what was going on, thus traumatizing her. He did not respect his wife since the act happened on the matrimonial bed and in the matrimonial house. The maximum 185 sentence of the offence of which the appellant had been convicted was death.

As to the mitigating factors, the appellant was taken to be a first offender, he had pleaded guilty to the charge and thus saved the time and resources of the Court. He is a family man with children to take care of, and at his age of 40 years, he was still capable of

reforming and being a useful citizen to society. The appellant had been remorseful for his actions and the period of one year and 2 months spent on remand was also taken into consideration by the sentencing trial Judge.

As to the principle of uniformity and consistency in sentencing, we have careful reviewed the Court precedents set out in a number of cases having relevancy to the facts and circumstances of the case of the appellant.

- In Katende Ahamadah vs Uganda: Court of Appeal Criminal $200$ Appeal No. 21 of 2003, the appellant was convicted of defiling his own daughter aged 13 years of age and sentenced to 15 years imprisonment on two counts, of aggravated defilement and incest. On appeal, this Court confirmed the said sentence. - In Fabiano Mundua vs Uganda: Court of Appeal Criminal 205 Appeal No. 342 of 2014, the appellant, a stepfather, was convicted of defiling a 9 year old victim, a one Amaniyo Lillian. He was sentenced to 16 years imprisonment. On appeal, this Court confirmed the said sentence. - In German Benjamin Vs Uganda: Court of Appeal Criminal $210$ 35 appellant, aged the $2010,$ No.142 $of$ Appeal years was convicted of defiling a girl of 5 years and sentenced to 20 years imprisonment by the trial Court. On appeal, this Court reduced the sentence to 15 years imprisonment mainly on the ground that, the appellant had spent $4\frac{1}{2}$ years on remand. $215$

The appellant in Tusabe John Bosco Vs Uganda: Court of Appeal Criminal Appeal No. 0425 of 2014 was sentenced to 22 years imprisonment for defiling a victim of 3 $\frac{1}{2}$ years. The appellant

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had spent 3 years on remand which period was deducted from the 22 years with the result that the appellant had to serve a sentence 220 of 19 years imprisonment.

This Court notes that the **Constitution (Sentencing Guidelines** for Courts of Judicature) (Practice) Directions, 2013 paragraph 19, part 1, 3^rd schedule, the sentencing range for Aggravated defilement has a starting point of 35 years imprisonment to the 225 maximum sentence of death. The Sentencing Guidelines are however to be applied taking into consideration the decisions of similar facts made by Courts of law of competent Jurisdiction. See; Ninsiima Gilbert Vs Uganda; Criminal Appeal No. 0180 of 2010 $(COA)$ . 230

Having subjected the evidence as to the sentence imposed by the learned trial Judge to fresh scrutiny and having appraised the past Court precedents of cases with comparable facts, we find that the learned trial Judge considered both the mitigating factors and aggravating factors.

This Court notes that the sentence passed against the appellant by the learned trial Judge is worded 43 years and 22 months. The 22 months are 1 year and 10 months. Therefore the learned trial Judge to sentence the appellant to 44 years and 10 months imprisonment which in effect the sentence of 43 years and 22 months amounts to.

The sentence passed by the learned trial Judge, is not in uniformity and consistent with sentences passed in earlier Court decisions with similarity of facts. We have already set out these cases earlier in this Judgment. Accordingly we hold that the said MN

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imposed by the trial court upon the appellant was harsh and excessive.

Pursuant to Section 11 of the Judicature Act and having reviewed and re-evaluated all the facts, including the mitigating and aggravating factors as were adduced before the Trial Judge 250 and applying the principle of maintaining uniformity and consistency in sentencing, we sentence the appellant to 22 years imprisonment. The said sentence of 22 years imprisonment shall be reduced by the period of one year and 3 months the appellant spent on remand having been charged in Court on 21^st February, 255 2013 and convicted on 26^th May, 2014. Accordingly the appellant shall serve a sentence of 20 years and 9 months imprisonment to be served from the date of conviction which is 26^th May, 2014.

In conclusion, this appeal is allowed. The sentence of 43 years and 22 months imprisonment is set aside. It is substituted with the 260 sentence of 20 years and 9 months imprisonment to be served by the appellant, Ssenyonjo Muhammad, from the date of conviction of $26^{th}$ May, 2014.

It is so ordered.

Dated at Kampala this .................................... 265

Geoffrey Kiryabwire **Justice of Appeal**

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........ Catherine Bamugemerire<br>Justice of Appeal

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...........

Remmy Kasule Ag. Justice of Appeal

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