[2020] UGHC 74

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT GULU**

## **CRIMINAL CASE No. 0094 OF 2019**

**UGANDA ….….……………….….…….….….….….…..…………….… PROSECUTOR**

#### **VERSUS**

| RUBANGAKENE KENNEDY | ….………………………….….…………… ACCUSED | | |---------------------|------------------------------|--| |---------------------|------------------------------|--|

#### 10 **Before: Hon Justice Stephen Mubiru.**

#### **PROCEEDINGS**

10th July, 2020 9.01 am

### 15 Attendance

Mr. Kilama Stephen, Court Clerk. Mr. Omia Patrick, Resident State Attorney for the Prosecution. Mr. Abore Patrick, Counsel for the accused. The accused is present in court

**Accused**: I speak Acholi.

**State Attorney**: we have negotiated a plea bargain and accordingly executed a plea agreement which I pray to present to court.

**Counsel for the accused**: That is correct.

- 25 **Accused**: I signed the agreement willingly at pages 5. My constitutional rights were explained to me and I willingly waived them fully cognisant of the consequences of signing the plea agreement. - **Court**: The agreement is received and hereby forms part of the court record.

………………………………….. 30 Stephen Mubiru Judge 10th July, 2020.

**Court**: The Indictment is read and explained to the accused in the Acholi language.

**Details**; Aggravated Defilement C/s 129 (3) and (4) (b) of *The Penal Code Act*. It is alleged that the accused on the 9 th day of April, 2018 at Kal Centre in Amuru District, being a person afflicted by HIV, performed an unlawful sexual act with Apio Agnes, a girl aged 12 years.

**Accused**: I have understood the indictment. It is true. **Court**: A plea of guilty is entered.

………………………………….. Stephen Mubiru 10 Judge 10th July, 2020.

**State Attorney**: On the fateful day, the victim went to the market with one of her aunties and after the market they went to a bar with the aunt. He introduced the 15 victim to the accused who lured the victim to his home as the aunt went back home. He had sexual intercourse with her. She lived with him for three days. The matter was reported to the police and he was arrested. On examination the victim was found to be 12 years and mentally normal and had torn genitals. The hymen was broken and the mucous membrane was 20 reddish as a result of penetrative sexual intercourse. She appeared to be in pain while walking. The accused was medically examined and found to be above 18 years but HIV positive. He was mentally normal. He told the police that he was 19 years old at the time he recorded his statement. **State Attorney**: I pray to tender in the medical forms. 25 **Defence Counsel**: I have no objection. **Court**: They are received as part of the facts and are marked P. Ex.1 and P. Ex.2 respectively.

………………………………….. Stephen Mubiru 30 Judge 10th July, 2020.

**Accused**: I have understood the facts. They are correct.

**Court**: The accused is convicted on his own plea of guilty for the offence of Aggravated Defilement C/s 129 (3) and (4) (b) of *The Penal Code Act*.

………………………………….. 5 Stephen Mubiru Judge 10th July, 2020.

**State Attorney**: the aggravating factors are that the accused took advantage of the victim's 10 age and exposed her to the infection of HIV. **Counsel for the accused**: the mitigation is that he readily pleaded guilty, he is 19 years old and remorseful, he is a first offender and capable of reform.

**Accused**: I have nothing to add.

#### 15 **SENTENCE AND REASONS FOR THE SENTENCE**

According to section 129 (3), the maximum penalty for the offence of Aggravated Defilement c/s 129 (3) and (4) (b) of *The Penal Code Act,* is death. However, this punishment is by sentencing convention reserved for the most extreme circumstances of perpetration of the offence such as 20 where it has lethal or other extremely grave consequences. Examples of such consequences are provided by Regulation 22 of The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013* to include; where the victim was defiled repeatedly by the offender or by an offender knowing or having reasonable cause to believe that he or she has acquired HIV/AIDS, or resulting in serious injury, or by an offender previously convicted of the same 25 crime, and so on. I construe these factors as ones which imply that the circumstances in which the offence was committed should be life threatening, in the sense that death is a very likely or probable consequence of the act. I considered the circumstances in which the offence was committed which were not life threatening, in the sense that death was not a very likely consequence of the convict's actions, for which reason the death sentence was discounted, giving 30 way to a plea bargain.

Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. None of the aggravating factors prescribed by Regulation 22 of the Sentencing Guidelines, which would justify the imposition of a sentence of life imprisonment, is applicable to this case. A sentence of life imprisonment may as well be justified by extreme gravity or brutality of the crime committed, or where the prospects of the offender reforming are negligible, or where the court assesses the risk posed by the offender and decides that he or she

5 will probably re-offend and be a danger to the public for some unforeseeable time, hence the offender poses a continued threat to society such that incapacitation is necessary (see *R v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410*). The convict in this case does not fit that description and therefore I do not consider the sentence of life imprisonment to be appropriate in this case. Although the circumstances of the case neither 10 justify the death penalty nor a sentence of life imprisonment, they are sufficiently grave to warrant a deterrent custodial sentence.

When imposing a custodial sentence on a person convicted of the offence of Aggravated Defilement c/s 129 (3) and (4) (b) of *The Penal Code Act*, the *Constitution (Sentencing* 15 *Guidelines for Courts of Judicature) (Practice) Directions, 2013* stipulate under Item 3 of Part I (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule, that the starting point should be 35 years' imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the relevant mitigating factors. In doing so, the court must take into account current sentencing practices for purposes of comparability and 20 uniformity in sentencing. I have therefore reviewed and taken into account the current sentencing practices in relation to cases of this nature as well. I have accordingly adopted a starting point of a range of 30 – 35 years' imprisonment.

From this, the convict is entitled to a discount for having pleaded guilty. The practice of taking 25 guilty pleas into consideration is a long standing convention which now has a near statutory footing by virtue of regulation 21 (k) of *The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*. As a general principle (rather than a matter of law though) an offender who pleads guilty may expect some credit in the form of a discount in sentence. The requirement in the guidelines for considering a plea of guilty as a mitigating factor 30 is a mere guide and does not confer a statutory right to a discount which, for all intents and purposes, remains a matter for the court's discretion. However, where a judge takes a plea of

guilty into account, it is important that he or she says he or she has done so (see *R v. Fearon [1996] 2 Cr. App. R (S) 25 CA*). In this case therefore I have taken into account the fact that the convict readily pleaded guilty as one of the factors mitigating his sentence.

5 The sentencing guidelines leave discretion to the Judge to determine the degree to which a sentence will be discounted by a plea of guilty. As a general, though not inflexible, rule, a reduction of one third has been held to be an appropriate discount (see: *R v. Buffrey (1993) 14 Cr App R (S) 511*). Similarly in *R v. Buffrey 14 Cr. App. R (S) 511*). The Court of Appeal in England indicated that while there was no absolute rule as to what the discount should be, as 10 general guidance the Court believed that something of the order of one-third would be an appropriate discount. In light of the convict's plea of guilty, and persuaded by the English practice, because the convict before me pleaded guilty, I propose at this point to reduce the sentence by one third from the starting point of a range of 30 – 35 years to a range of 20 – 23 years' imprisonment, before mitigation.

Having considered the sentencing guidelines and the current sentencing practice in relation to offences of this nature, the aggravating and mitigating factors outlined above, I hereby accept the submitted plea agreement entered into by the accused, his counsel, and the State Attorney and in accordance thereto, find the proposed sentence of fourteen (14) years' imprisonment as befitting

20 the circumstances of the case and the antecedents of the convict.

In accordance with Article 23 (9) of the Constitution and Regulation 15 (2) of The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I note that the convict was charged on 24th 25 April, 2018 and been in custody since then. I hereby take into account and set two (2) years and three (3) months as the period the convict has already spent on remand. I therefore sentence the convict to a term of imprisonment of eleven (11) years and ten (10) months to be served starting today.

Having been convicted and sentenced on his own plea of guilty, the convict is advised that he has a right of appeal against the legality and severity of this sentence, within a period of fourteen days.

| 5 | this 10th<br>Dated at Gulu<br>day of July, 2020. | …………………………………<br>Stephen Mubiru,<br>Judge.<br>10th July, 2020. | |----|--------------------------------------------------|----------------------------------------------------------------| | 10 | | | | 15 | | | | 20 | | | | 25 | | | | 30 | | | | 35 | | | | 40 | | |

**Warrant of Commitment on a U. C. FORM 90 Sentence of Imprisonment Section 299(1) Criminal Procedure Code Act**


## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN**

10 **TO: AT GULU**

**The Officer in Charge,**

**Government Prison, Gulu.**

## **WARRANT OF COMMITMENT**

*WHEREAS* on the **10th** day of **July** 2020, **RUBANGAKENE KENNEDY**

15 the Prisoner in Criminal Session Case No.**0094** of the Calendar Year for **2019** was convicted before me: Hon. Justice **MUBIRU STEPHEN, a Judge of the High Court of Uganda,** of the offence of **AGGRAVATED DEFILEMENT C/s 129 (3) and (4) (b)** of The Penal Code Act and was sentenced to **ELEVEN (11) YEARS AND TEN (10)**

20 **MONTHS' IMPRISONMENT.**

**THIS IS TO AUTHORISE AND REQUIRE YOU**, the Superintendent to receive the said **RUBANGAKENE KENNEDY** into your custody in the said prison together with this **Warrant** and there carry the afore said 25 sentence into execution according to Law.

**GIVEN** under my Hand and the Seal of the court this **10th** day of **July,** 2020**.**

………………………………....… 30 **JUDGE**.