[2022] UGCA 241

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT ARUA

[Coram: Musoke, Gashirabake & Luswata, JJA]

#### CRIMINAL APPEAL NO. 0471 OF 2020

(*Arising from Criminal Case No. 045 of 2019*)

TWAHERWA ALEX.................................... 10

#### **VERSUS**

#### <table> UGANDA ...................................

[*Arising from the decision of Dr. Winifred N. Nabisinde, J of the High Court of Uganda sitting* at Mpigi in Criminal Case No. 045 of 2019 dated 17^th February 2020]

#### 15

$\overline{a}$

$\mathsf{S}$

#### JUDGMENT OF COURT.

### Introduction.

The brief facts of this case as admitted by the trial court were that the victim was aged 15 years at the time of the defilement. She was mentally retarded, and lived in the same village as the Appellant. On 07^th April 2018, the Appellant found the victim at home slashing the compound and asked her to go with him. He then took her to a banana plantation and proceeded to forcefully have sexual intercourse with her. Thereafter the victim went back home and revealed to her grandmother what the Appellant had done to her. The victim was medically examined and her hymen found to have been freshly ruptured with tears and lacerations around her private parts. The Appellant was also examined and found to be between 24-26 years old and of a normal mental status. He was subsequently indicted for aggravated defilement contrary to section 129 (3), and 4(d) of the Penal Code Act. At the trial

he pleaded guilty and was sentenced to 15 years and 3 months' imprisonment.

Dissatisfied with the above decision, the Appellant is appealing on one ground that:

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⁵ "'l'hc lcarncd trial judgc crrcd in law and fact whcn hc passcd a harsh and cxccssivc scntcnce against thc Appcllant, thercby occasionirtg a rniscarriagc ol'justicc"

#### Representation

'l'he Appellant was represenlr:d by Mr. Henry Kunya and Ms. Lydia Namuli. 'l'hc Respondent was represented by N{s. Nabisenke Vicky.

Iloth counsel filed written submissions which court adopted at the hearing.

### Submissions for counscl of the Appellant.

Counsel for the Appellant sought lcave under Section 132 (lXb) of the'l'rial on lndictments Act, to appeal against the sentence only.

- Counsel submittcd that it is now scttlcd law that the Appellate Courl is not to interfere with sentcncc imposed by thc trial court which has exercised its discrction on sentence unless the exercise ol the discretion is such that it rcsults in thc scntence imposed to be manilestly cxcessive or so low as to amount to ^a miscarriage of justice. Counsel cited Kiwalabye vs. Uganda SCCA Appeal No. 15 - 143 of 2001 cited in Kimera Zaverio vs. Uganda (Court of Appeal Criminal Appeal No.427 of2014) 20

¹¹is counsel's subrnission that the lcarned trialjudge did not take into considcration rnitigating lactors put to her, to u,it that the Appcllant is a first time ollendcr with no previous criminal lecord, plcadcd guilty on second thought and thus saved courts time and was only 26 ycars at thc material timc of committing ol'thc said offence.

Conscqucntially, counscl submittcd that thc scntcnce rnctcd down to thc Appcllant was harsh and cxccssive.

2lt'3ge

Counsel cited Kabatera vs Uganda CACA No. 123 of 2001, whcrc thc Appcllant was convicted of defilcmenl ancl scntenccd to l0 ycars of imprisonrncnt. On Appeal, this Honourable Court sct aside the scntcncc ol l0 ycars and substitutcd it with 5 years imprisonmcnt, reasoning that thc agc ol'an accuscd person is always a material factor that ought to be taken into consideration bc{bre a sentcncc is imposed. 5

C-'ounscl praycd that thc scntcncc ol 15 ycars bc sct asidc.

## Submissions by counscl for thc ll.espondcnt,

Counsel for thc Respondent submitted that they did not objcct to thc Appcllant's oplion to appeal against thc scntcncc only. Counsel howcvcr opposcd thc appcal against the scntence of l5 years and 3 months as well as it bcing reduccd.

Counscl citcd Rwabugande Moscs vs. lJganda. SCCA No. 25 of 2014, whcrc thc Supremc Court citcd K1'alimpa E,dward vs. Uganda Criminal Appcal No. l0 of 1995, whcrc it was hcld that:

"An appropriatc scntcncc is a rnatler lbr thc discrction ol'thc scntcncingjudgc. each casc prcscnts its olvn facts upon which thcjudgc cxcrciscs his discrction. It is the practice that as an appcllalc coun, lhis court will not intcrl'crc with thc discretion of the scntencing judge unless lhe sentcnce is illcgal or unlcss thc courl is satisficd that thc scntcncc imposcd by lhc trailjudgc was nranifcstly cxccssivc as lo amount to an in-iusticc"

Counsel submitted that the court in Rwabugande (Supra) was guidcd by its decision in Kamya Johnson Wavamunno vs. Uganda Criminal Appeal No. l6 of 2000, where it was hcld thar: 25

> 'is wcll scttlcd that thc Court ofappcal uill not intcrlbrc rvith thc cxcrcisc ol discretion unlcss therc has bccn a failurc to cxcrcisc discrction. or lhilurc to takc into accoulrt a nratcrial considcration. or an crror in principlc was rnadc.

3lPar;;

⁵ it is not sufficicnt that lhc rncmbcrs ollhc Court would have cxcrciscd thcir ^di scrct ion ^di lfercnt ly. "

Counsel further submittcd that thc trial judge considcrcd all the aggravating f-actors advanced by the prosecution and the mitigating factors advanced by the Appellant himself.

Counsel submiucd that the trial judgc looked at thc provisions of thc (-'onstitution of the Republic of Uganda 1995, the Penal Code Act and thc Constitution (Sentencing Guidelines for Court of Judicature) Practice Dire ctions, Lcgal Noticc No. 8 of 2013 and concludc that a sentcnce ol- I 7 ycars was bcfitting thc naturc olcrimc committed against the victirn. 'l'he trial court then deductcd thc I ycar and l0 months and 5 days that the Appellant had been on pre{rial rcmand and tinally r0 15

sentenccd him to t5 ycars and 03 months imprisonmcnt.

- Counsel therelorc subrnitted that it was misleading lor counscl fbr the Appcllant to submit that the learned trial judgc did not take into account thc mitigating lactors. - F'urthermore, counscl submitted that the submission that thc scntcncc was harsh and excessive is baseless givcn the circumstanccs undcr which the olTcncc was committed. These circumstances includcd the lact that the victim was agcd only l5 years old, she was mentally challenged and thus vulncrablc and in necd of' protection and the sexual abuse left her with a ruptured hymen and bruises and lacerations in her private parts. On the contrary, the Appellant aged 26 years, and a village mate to the victim, ought to have known better than to abusc hcr vulnerability. 20 25

Counscl submitted that under paragraph 3 of the Constitutional Scntcncing guidelines,, r.r,hereas the objcctivcs ol'the sentencing guidelincs includc providing a mechanism that promotcs unilormity, consistcncy and transparcncy in

41 , ,, ,'

sentencing, another key objective is to provide a mechanism for considering the $\mathsf{S}$ interest of victims of crime and the community when sentencing. Furthermore, the purpose of the sentencing guidelines is to promote rule of law in order to maintain a just, peaceful and safe society and promote initiatives to prevent crime. a critical review of paragraph $5(b)$ and (c) shows that among the aims of sentencing is to deter a person from committing an offence and to separate the offenders from 10 society where necessary.

Additionally, counsel submitted that it follows therefore that court has a duty to protect the society and children from such persons as the Appellant by withdrawing them from the community for such durations as the court deems necessary, the trial judge thus embraced her duty to protect persons with disabilities, young girls and the community from actions of the Appellant.

Counsel cited Baruku Asuman vs. Uganda Court of Appeal Criminal Appeal No. 0387 of 2014, where this court discussed a number of authorities where it approved sentences ranging between 11 to 25 years for the offence of aggravated defilement.

#### And in Biryomumisho Alex vs. Ug. CACA No 464 of 2016, held that:

"we must note that interfering with the sentence is not a matter of emotions but rather one law. unless it can be proved that the trail judge flouted any of the principles of sentencing, then it does not matter whether the members of this Court would have given a different sentence if they had been the one trying the Appellant"

Counsel submitted that this court finds that the sentence of 15 years and 3 months imprisonment was neither harsh nor excessive, and will accordingly dismiss the appeal for lack of merit.

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#### **Consideration of Court.** $\mathsf{S}$

In resolving the issue raised in this appeal, this court is mindful of its duty as a first appellate court to re-evaluate the evidence presented before the trial court to reach its own conclusion. See Pandya vs. R, (1957) EA 336 and Kifamunte Henry vs. **Uganda, Supreme Court Criminal Appeal No. 10 of 1997.**

- The Appellants' complaint in this court is that the sentence meted out to him was 10 harsh and excessive. That the learned trial judge did not take into consideration mitigating factors as put to her, that the appellant was a first time offender with no previous criminal record and that he later on pleaded guilty. He was only 26 years of age at the time of commission of the offence. - In sentencing the Appellant, the trial Judge stated: 15

"Having taken all the above into consideration. I have taken cognizance of the

circumstances under which this offence was committed; I have noted that the victim in this case was aged only between 15 years old at the time' but what aggravates this offence more is that she was mentally challenged The convict is an adult man, aged over 23 years old at the time the offence was committed and is of sound mental status The victim in this case was very vulnerable and could not take care for herself or make any informed decisions regarding her life because of her mental disability. She was also still a child who needed protection and care from everybody in society. The offence committed against her put her life at great risk of contracting HIV /AIDS' other STDs and unwanted early pregnancy. I have also cautioned myself of the evil of engaging underage girls in sexual activities and the court condemns the acts of the convict because of the impact it would have on the health of this young girl for the rest of her life, her family and the community generally.

It is also apparent that the convict is still a young man' however at his age; he

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ought to know that the victim who lived in the same area as him was mentally challenged. The offence is also very rampant in this area and it is the duty of this court to protect persons with all kinds of disabilities such young girls from the likes of the convict. For that reason, the sentence should also serve to deter other people who may be tempted to do the same. It is apparent that in this case, the convict targeted the victim because of her mental disability.

Both the State Attorney and defence counsel agreed that there are no previous known records against the convict; this court will therefore treat him as a first offender. I have noted that in such a case, the maximum sentence would have been the death penalty. However I find that this sentence will not serve the ends of justice in this case and is too harsh in this particular case given that it is a plea of guilty. That being the case, I have also taken into account the age difference between the convict and the victim which is about 07 years. I have also checked the file to ascertain the time spent on pretrial remand; it comes to 1 year and 10 months and 5 days.

While I believe that he deserves a second chance in life to mend his ways a very short sentence would only be a pat on the back and will not assist him to reflect and mend his ways. I therefore believe that he deserves a sentence that will give him enough time to reflect and mend his ways. The State prayed for a deterrent Sentence of 15 years imprisonment. while the defence suggested 13 Years imprisonment.

While the sentencing range in terms of years would be at least 35 years' imprisonment, taking into account all the circumstances of the case and the provisions of the law, I find that a sentence of 17 (seventeen) years imprisonment would have been justified. I have ,however ,deducted the period spent on pretrial remand. The final sentence he will serves is therefore 15 years and 03 months (fifteen years and three months) which I have found as appropriate taking into account the circumstances of this case."

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$\mathsf{S}$

- From the above record, it is not true that the trial court did not take into $\mathsf{S}$ consideration the mitigating factors as presented before court. The trial judge took cognisance of the fact that the Appellant was a first time offender and young in age that had an opportunity to reform. The trial Court having weighed the aggravating factors and concluded that the Appellant needed a deterring sentence. - According to Section 129 (3) of the Penal Code Act Cap 120, the maximum 10 penalty for the offence of Aggravated Defilement is death. However, this maximum sentence is reserved for the most severe circumstances of perpetration of such an offence. In assessing this severity of the sentence the trial judge observed that the maximum sentence would not serve the ends of justice. - It is now an established position of the law that a sentencing court is bound by the 15 principle of consistency. This principle is to the effect that the sentences passed by the trial Court must as much as circumstances may permit, be similar to those passed in previously decided cases having similar facts. See: Aharikundira Yustina vs. Uganda, Supreme Court Criminal Appeal No. 27 of 2015. - Guideline No. 6(c) of the (Sentencing Guidelines for Courts of Judicature) 20 (**Practice) Directions, 2013** provides that:

"Every court shall when sentencing an offender take into account the need for consistency sentencing an offender take into the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances"

In Apiku Ensi vs. Uganda C. A Criminal Appeal No.751 of 2015, this court was guided by the previous authorities and found that the sentence of 25 years imprisonment was out of range of the sentences in similar offences. In *Ninsiima* vs. *Uganda*, *CACA No. 1080 of 2010*, this Court found that the range of sentences

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$\epsilon$

for similar offences of aggravated defilement is 15-18 years. In that case, this Court $\mathsf{S}$ reduced a sentence of 30 years to 20 years imprisonment for the offence of aggravated defilement.

Considering both the mitigating and aggravating factors, and the authorities cited above a sentence of 15 years and 3 months after deducting the period spent on pre-

trial remand is not harsh and excessive in the circumstances of this case. We 10 therefore uphold the lower court sentence of 15 years and 3 months.

We so hold.

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| 15 | 2022 | $\frac{28}{28}$<br>$\cdots \text{Of } \cdots \cdots \overbrace{\mathbb{S}^{\mathbb{S}}}^{\mathbb{S}^{\mathbb{S}}}$<br>Dated at Kampala this | |-----------------------------|----------|---------------------------------------------------------------------------------------------------------------------------------------------| | | | | | 20 | | ELIZABETH MUSOKE | | | | <b>JUSTICE OF APPEAL</b> | | | | | | | | <b>CHRISTOPHER GASHIRABAKE</b> | | 25 | | JUSTICE OF APPEAL | | | | EVAK. LUSWATA | | | | <b>JUSTICE OF APPEAL</b> | | 30 | | | | $\mathcal{L} = \mathcal{L}$ | 9 Page | |