[2003] UGHC 61

{\rtf1\ansi\ansicpg1252\uc1\deff0\stshfdbch0\stshfloch0\stshfhich0\stshfbi0\deflang2057\deflangfe2057{\fonttbl{\f0\froman\fcharset0\fprq2{\*\panose 02020603050405020304}Times New Roman;}{\f171\froman\fcharset238\fprq2 Times New Roman CE;} {\f172\froman\fcharset204\fprq2 Times New Roman Cyr;}{\f174\froman\fcharset161\fprq2 Times New Roman Greek;}{\f175\froman\fcharset162\fprq2 Times New Roman Tur;}{\f176\froman\fcharset177\fprq2 Times New Roman (Hebrew);} {\f177\froman\fcharset178\fprq2 Times New Roman (Arabic);}{\f178\froman\fcharset186\fprq2 Times New Roman Baltic;}{\f179\froman\fcharset163\fprq2 Times New Roman (Vietnamese);}}{\colortbl;\red0\green0\blue0;\red0\green0\blue255;\red0\green255\blue255; \red0\green255\blue0;\red255\green0\blue255;\red255\green0\blue0;\red255\green255\blue0;\red255\green255\blue255;\red0\green0\blue128;\red0\green128\blue128;\red0\green128\blue0;\red128\green0\blue128;\red128\green0\blue0;\red128\green128\blue0; \red128\green128\blue128;\red192\green192\blue192;}{\stylesheet{\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 \snext0 \styrsid15735591 Normal;}{\*\cs10 \additive \ssemihidden Default Paragraph Font;}{\*\ts11\tsrowd\trftsWidthB3\trpaddl108\trpaddr108\trpaddfl3\trpaddft3\trpaddfb3\trpaddfr3\trcbpat1\trcfpat1\tscellwidthfts0\tsvertalt\tsbrdrt\tsbrdrl\tsbrdrb\tsbrdrr\tsbrdrdgl\tsbrdrdgr\tsbrdrh\tsbrdrv \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang1024\langfe1024\cgrid\langnp1024\langfenp1024 \snext11 \ssemihidden Normal Table;}{\s15\ql \li0\ri0\widctlpar \tqc\tx4320\tqr\tx8640\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 \sbasedon0 \snext15 \styrsid15735591 footer;}{\*\cs16 \additive \sbasedon10 \styrsid15735591 page number;}} {\*\latentstyles\lsdstimax156\lsdlockeddef0}{\*\rsidtbl \rsid144964\rsid620475\rsid674401\rsid2056634\rsid2319401\rsid3278328\rsid4589954\rsid4749374\rsid5571109\rsid6184873\rsid6236857\rsid7632817\rsid8088133\rsid8457184\rsid9133014\rsid9524872 \rsid9896037\rsid11102633\rsid12540634\rsid12794089\rsid13522625\rsid14964943\rsid15272692\rsid15600049\rsid15735591}{\*\generator Microsoft Word 11.0.5604;}{\info{\title THE REPUBLIC OF UGANDA}{\author jkasibante}{\operator jchemeri} {\creatim\yr2009\mo3\dy10\hr10\min47}{\revtim\yr2009\mo3\dy10\hr10\min47}{\version2}{\edmins1}{\nofpages9}{\nofwords1928}{\nofchars10996}{\*\company Courts Of Judicature}{\nofcharsws12899}{\vern24689}} \widowctrl\ftnbj\aenddoc\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\formshade\horzdoc\dgmargin\dghspace180\dgvspace180\dghorigin1800\dgvorigin1440\dghshow1\dgvshow1 \jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\splytwnine\ftnlytwnine\htmautsp\nolnhtadjtbl\useltbaln\alntblind\lytcalctblwd\lyttblrtgr\lnbrkrule\nobrkwrptbl\snaptogridincell\allowfieldendsel\wrppunct \asianbrkrule\rsidroot15735591\newtblstyruls\nogrowautofit \fet0{\*\ftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid674401 \chftnsep \par }}{\*\ftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid674401 \chftnsepc \par }}{\*\aftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid674401 \chftnsep \par }}{\*\aftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid674401 \chftnsepc \par }}\sectd \linex0\endnhere\sectlinegrid360\sectdefaultcl\sftnbj {\footer \pard\plain \s15\ql \li0\ri0\widctlpar\tqc\tx4320\tqr\tx8640\pvpara\phmrg\posxr\posy0\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid11102633 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\field{\*\fldinst {\cs16\insrsid12540634 PAGE }}{\fldrslt {\cs16\lang1024\langfe1024\noproof\insrsid4589954 7}}}{\cs16\insrsid12540634 \par }\pard \s15\ql \li0\ri360\widctlpar\tqc\tx4320\tqr\tx8640\aspalpha\aspnum\faauto\adjustright\rin360\lin0\itap0\pararsid15735591 {\insrsid12540634 \par }}{\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}} {\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8 \pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\insrsid15735591\charrsid4589954 THE REPUBLIC OF UGANDA \par IN THE HIGH COURT OF UGANDA AT MASAKA \par }{\insrsid15735591\charrsid4589954 \par }{\b\ul\insrsid15735591\charrsid4589954 HCSC NO HCT \endash 06 \endash CR \endash SC \endash 0085/2001 \par \par Orign 392/2000 \par CRB 791/2000 \par \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid15735591\charrsid4589954 UGANDA \tab ::::::::::::::::::::::::::::::::::::::::::::::::::::::\tab \tab PROSECUTION \par }\pard \qj \li360\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin360\itap0\pararsid4589954 {\b\insrsid15735591\charrsid4589954 \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid15735591\charrsid4589954 VERSUS \par \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid15735591\charrsid4589954 SEKITOLEKO JOSEPH ::::::::::::::::::::::::::::::::::::::\tab \tab ACCUSED \par \par }\pard \qj \fi360\li720\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\pararsid4589954 {\b\insrsid15735591\charrsid4589954 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\ul\insrsid15735591\charrsid4589954 BEFORE: THE HON. MR. JUSTICE ELIDAD MWANGUSYA}{\b\insrsid15735591\charrsid4589954 : \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid15735591\charrsid4589954 \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\ul\insrsid15735591\charrsid4589954 JUDGMENT \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid620475\charrsid4589954 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid15735591\charrsid4589954 \par The accused, SEKITOLEKO JOSEPH was indicted for the offence of Defilement contrary to Section 123 (1) of the Penal Code Act. The particulars in the indictment were that SEKITOLEKO JOSEPH on the 30}{\super\insrsid15735591\charrsid4589954 th}{ \insrsid15735591\charrsid4589954 day of August 2000 at Kisayi village in the Rakai District had unlawful sexual intercourse with NAMATA JULIET a girl under the age of 18 years. \par \par The accused pleaded not guilty to the indictment and as required in all crimi nal trials the prosecution assumed the burden of proving the guilt of the accused beyond any reasonable doubt and the burden does not shift to the accused to prove his innocence. A conviction is based on the strength of the prosecution case and not a sus picion or the weakness of the defence. This court is also enjoined to examine the case for the prosecution together with that for the defence. \par \par As far as the case for the prosecution is concerned it is briefly as follows:- \par \par On the 30}{\super\insrsid15735591\charrsid4589954 th}{\insrsid15735591\charrsid4589954 day of August 2000 th e prosecutrix, the aged seven years was sent by her mother, SARAH NAMALE (P. W.5) to purchase paraffin from a nearby trading centre. On reaching the trading centre the accused first sent}{\insrsid8457184\charrsid4589954 her to buy cigarettes for him from a small shop. She bought the cigarettes which she took to him. After receiving the cigarettes he offered her some Sweet Pepsi and then \lquote slept on\rquote her after holding her mouth. She was wearing a pair of knickers which the accused removed and tore. He threw it away. After the accused had slept on her he told her not to say anything to her mother.}{\insrsid15735591\charrsid4589954 \par }{\insrsid8457184\charrsid4589954 \par After he had left her she went back home and reported to her mother that the accused had done bad things to her. Her mother examined her and noticed blood coming out of her private parts. She went and reported to the Chairman Local Council I who traced the accused and arrested hi. In the meantime she took the girl to a clinic in Rakai where she received treatment. She was later examined by DR. SESANGA who found her aged about 5 years and fou n d signs of penetration. He found that the hymen had been ruptured and there were inflammation around her private parts. He also found an abnormal vaginal discharge. It was on the basis of thee above evidence that the accused was indicted with this off ence. \par \par }{\insrsid13522625\charrsid4589954 On the other hand the accused gave his defence on oath and denied having defiled the complainant. He testified that he was called from}{\insrsid6184873\charrsid4589954 his home by the Chairman L. C. I who did not tell him why he wanted him. He only told him that the mother of the victim had made a complaint against him. On reaching the Chairman\rquote s home he was taken to Buyamba Police Post where he was informed of the allegations against him. He denied having defiled the girl. He also denied that the girl had been to his home where h e sent her for cigarettes. He stated that the mother of the girl fabricated the case against him because she had borrowed some things and cash Shs.50,000/= from him and did not want to pay. He had threatened to take court action against her and she had him arrested before he did.}{\insrsid8457184\charrsid4589954 \par }{\insrsid6184873\charrsid4589954 As in all cases of defilement contrary to Section 123 (1) of the Penal Code Act, the prosecution is required to prove that the victim of the alleged defilement was below 18 years of age, that she was involved in an act of unlawfu l sexual intercourse and that the accused person was responsible for the act of unlawful}{\insrsid9133014\charrsid4589954 sexual intercourse.}{\insrsid6184873\charrsid4589954 \par }{\insrsid9133014\charrsid4589954 \par In the instant case Counsel for the accused submitted that the defence did not contest the age of the complainant because quite clearly she was be low the age of eighteen years at the time of commission of the offence. Even at the time she testified in court which was more than two years after the incident her testimony and that of her mother was that she was aged below 18 years and her physical ap pearance indicated so. I hold that this element of the offence has been proved beyond reasonable doubt. \par \par On the issue of unlawful sexual intercourse the prosecution mainly relied on the complainant whose narration of what befell her was not very clear. He r description of the act of unlawful sexual intercourse was that the accused slept on her and she felt bad. She stated that she was laying on her stomach when the accused slept on her. She could not explain what the accused did that made her feel bad an d neither could she explain what she meant by \lquote feeling bad\rquote . She kept quiet and looked down when asked what the accused did to her. My observation of this girl was that she was too shy to describe in detail what the accused did to her. Secondly, consider ing that she was aged only five years at the time of the incident}{\insrsid15272692\charrsid4589954 and took about two years before she testified in court she might have forgotten the details of what happened to her. It would be dangerous to act on the uncorroborated evidence of her testi mony and I warned the assessors so. But corroboration is to be found in the testimony of her mother who examined her immediately after the alleged sexual intercourse and blood coming out of the girl\rquote s private parts. The medical examination revealed that the girls hymen had been ruptured and there were inflammations around her private parts as which were consistent with force having been used sexually. This satisfies the requirements of S.38 (3) of the Trial on Indictments Decree that accused person shal l not be liable to be convicted. On the unsworn testimony of}{\insrsid9133014\charrsid4589954 }{\insrsid15272692\charrsid4589954 a child of tender years unless such evidence is corroborated by some other material evidence in support thereof implicating the accused the evidence of the complainant was such testimony and it i s corroborated. I find that this element of the offence has been proved by the prosecution}{\insrsid9896037\charrsid4589954 . The inability of the girl to give details not withstanding.}{\insrsid6184873\charrsid4589954 \par }{\insrsid9896037\charrsid4589954 \par On whether or not the accused is the one who had sexual intercourse with the girl the accused denied having defiled her and alleged that the mother of the girl fabricated the case against him because she owed him money which she had refused to pay and had threatened to take court action against her. The mother of the girl was a witness in this trial and

none of the allegations by the accused was put to her in cross-examination. The defence sought to establish that she was selling alcohol in her home and one of her customers could have defiled the girl. But the girl was defiled during broad daylight by some one whom she knew. He first sent her for cigarettes and she identified the accuse as that person. She knew him very well and I don\rquote t think that this girl}{\insrsid144964\charrsid4589954 mentioned him to protect another defiler as the defence would like this court to believe. There was absolutely no reason for doing so.}{\insrsid9896037\charrsid4589954 \par }{\insrsid144964\charrsid4589954 \par Mr. Sendegeya, defence Counsel submitted on the discrepancy between the dates the girl is alleged to have been defiled and the date she was examined when the testimony of the complainant and her mother was that she was examined on the same day. The mother of the complainant testified that she went to the Hospital twice. She did not have the forms when she first went. She collected the forms from the Police later. Although she stated that everything was done in th e month of August the medical report which was admitted at the commencement of trial indicates that the examination was done in September and the injuries observed were not fresh. This is an indication that if the complainant was examined after the defile ment the findings were not recorded immediately and this necessitated recording of the findings later. So to me the discrepancy in the dates does not go to the roof of the case and is to be ignored. It does not raise any doubt about the fact of}{ \insrsid2056634\charrsid4589954 defilement which her own testimony and the medical report established.}{\insrsid144964\charrsid4589954 \par }{\insrsid2056634\charrsid4589954 \par The assessors were unanimous in their opinion that the prosecution had proved all the ingredients of the offence of Defilement C/S 123 (1) beyond reasonable doubt. They advised court to find th e accused guilty as indicated. I agree with the opinion of the assessors. The accused is found guilty as indicted and is convicted accordingly \par \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid2056634\charrsid4589954 ELIDAD MWANGUSYA \par JUDGE \par 20.01.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid2056634\charrsid4589954 \par }{\b\ul\insrsid2056634\charrsid4589954 Order: \par }{\insrsid2056634\charrsid4589954 The accused testified that he is now aged 20 years which puts his ag e at the commission of the offence below 18 years. This court will carry out an inquiry to establish age of accused because my observation is that he is well above the age of 20 years. This inquiry to establish the age of accused will be carried out on 03.02.2003. \par Accused to be remanded till then. \par \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid2056634\charrsid4589954 ELIDAD MWANGUSYA \par JUDGE \par 20.01.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid2056634\charrsid4589954 \par }{\insrsid8088133\charrsid4589954 \par \par \par \par \par \par }{\b\insrsid2056634\charrsid4589954 03.02.03 \par }{\insrsid8088133\charrsid4589954 Accused/convict in court.}{\insrsid2056634\charrsid4589954 \par }{\insrsid8088133\charrsid4589954 Mr. Sendegeya for accused S/brief \par Mr. Byansi RSA for state \par Both assessors absent \par Mr. Mbazira Court Clerk. \par \par }{\b\ul\insrsid8088133\charrsid4589954 Court: \par }{\insrsid8088133\charrsid4589954 Case for ascertainment of age of convict. \par \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid8088133\charrsid4589954 ELIDAD MWANGUSYA \par JUDGE \par 03.02.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid8088133\charrsid4589954 \par \par DR. DANIEL KIBUKA MUSOKE D/ASP, Police Surgeon, Southern based at the Regional Police Headquarters, Masaka. \par I hold a Bachelor of Medicine/Surgery obtained from Makerere University in 1999. I also hold a Post Graduate Diploma in Foresisic Medicine obtained from the Royal College of Police Surgeons in Cleveland USA.}{\insrsid4749374\charrsid4589954 I also hold a certificate in HIV/AIDS care from the Academic Alliance between Makerere Univ. and North America Infections Disease Society. I also hold a certificate in C/ASP Police Course.}{\insrsid8088133\charrsid4589954 \par }{\insrsid4749374\charrsid4589954 \par I know the accused person. I was requested by the Regional CID Officer to examine him and ascertain his age. I examined the accused today at 9.30 a.m. I made my report in that respect. \par \par }{\b\ul\insrsid4749374\charrsid4589954 Court: \par }{\insrsid4749374\charrsid4589954 Witness shown a document and states:- \par This a Police Form24 compiled by me. \par The apparent age of accused is established to be 23 years. The accused was found to have a fully developed dentention co}{\insrsid12540634\charrsid4589954 nsistent with the age of 23 years. He was found to have no inj uries and his mental state is normal.}{\insrsid4749374\charrsid4589954 \par }{\insrsid12540634\charrsid4589954 \par }{\insrsid6236857\charrsid4589954 The report is signed, stamped by me.}{\insrsid12540634\charrsid4589954 \par }{\insrsid6236857\charrsid4589954 \par }{\b\ul\insrsid6236857\charrsid4589954 Mr. Byansi: \par }{\insrsid12794089\charrsid4589954 I apply to tender the medical report on PF.24.}{\insrsid6236857\charrsid4589954 \par }{\b\ul\insrsid12794089\charrsid4589954 Mr. Sendegeya: \par }{\insrsid12794089\charrsid4589954 I have no objection. \par }{\b\ul\insrsid12794089\charrsid4589954 Court: \par }{\insrsid12794089\charrsid4589954 P. F. 24 tendered and marked court exhibit 1. \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid12794089\charrsid4589954 \par ELIDAD MWANGUSYA \par JUDGE \par 03.02.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid8088133\charrsid4589954 \par }{\b\ul\insrsid12794089\charrsid4589954 Mr. Sendegeya cross-examination:}{\b\ul\insrsid8088133\charrsid4589954 \par }{\insrsid12794089\charrsid4589954 I am sure accused is above 23. Dental formula is the method I used. This is a method recommended by the International Working Committee on age. They are methods including x rays of the bones of a victim. In a like p erson dental formula is the one recommended. \par }{\b\ul\insrsid3278328\charrsid4589954 \par }{\b\ul\insrsid12794089\charrsid4589954 Mr. Byansi}{\insrsid12794089\charrsid4589954 : \par No re-examination. \par }{\b\ul\insrsid3278328\charrsid4589954 \par }{\b\ul\insrsid12794089\charrsid4589954 Court: \par }{\insrsid12794089\charrsid4589954 On the original charge sheet the age of the accused is given as 22 years. He has been on remand as an adult and now as a child. Dr. Kibuka Musoke\rquote s testimony is to the e ffect that accused is over 23 years which confirms the original age given the accused\rquote s testimony that he is now aged twenty must have been for the purpose of escaping punishment and it is t}{\insrsid3278328\charrsid4589954 o be ignored. He will be sentenced as an adult. He is not a child for the purpose of the children\rquote s Statute.}{\insrsid12794089\charrsid4589954 \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid3278328\charrsid4589954 \par ELIDAD MWANGUSYA \par JUDGE \par 03.02.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid12794089\charrsid4589954 \par }{\b\ul\insrsid3278328\charrsid4589954 Mr. Byansi: \par }{\insrsid3278328\charrsid4589954 The convict is presumed a first offender. The convict has been convicted of a serious offence carrying a maximum death sentence. It should be considered that offe nce has become so prevalent. It is a duty of the court to protect the public from persons like accused. The victim of this case was a very young innocent child aged only 5 years. In this error of Aids this child was exposed to the danger of catching th e killer disease. The convict deserves a severe custodial sentence to keep him away from society. \par \par }{\b\ul\insrsid3278328\charrsid4589954 Mr. Sendegeya: \par }{\insrsid3278328\charrsid4589954 As stated by my learned friend the accused is a first offender. He has been on remand for almost 2 \'bd years. He is a young man. A very long custodial sentence will not assist him in reformation which is one of the purposes of punishment. He is sorry for what happened. He is not a}{\insrsid14964943\charrsid4589954 hardened criminal. I pray that this court gives him a reasonably short sentence.}{\insrsid3278328\charrsid4589954 \par }{\insrsid14964943\charrsid4589954 \par }{\b\ul\insrsid14964943\charrsid4589954 Accused/Convict}{\insrsid14964943\charrsid4589954 : \par I pray for mercy from this court. I am looking after children of my late father. They have left school since I was arrested. I would want to back and cater for their education. \par \par }{\b\ul\insrsid14964943\charrsid4589954 Court: \par }{\insrsid14964943\charrsid4589954 The victim of this defilement was aged only five years. The circumstances of thi s defilement must be condemned by this court because the young girl was sent by her mother on an errant and she ended up in the hands of the convict who lured her into sexual intercourse at such an innocent age. Many young girls are sent on such errands a nd this court is to send out a message that such girls are to be protected and their defiles will be mercilessly dealt with. In the circumstances of this case and taking into account the period accused has spent on remand he will be sentenced to a term o f imprisonment of ten years. \par \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid14964943\charrsid4589954 ELIDAD MWANGUSYA \par JUDGE \par 03.02.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid7632817\charrsid4589954 \par \par }{\b\ul\insrsid14964943\charrsid4589954 Court: \par }{\insrsid7632817\charrsid4589954 R/A explained.}{\insrsid14964943\charrsid4589954 \par }{\insrsid7632817\charrsid4589954 \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\b\insrsid7632817\charrsid4589954 ELIDAD MWANGUSYA \par JUDGE \par 03.02.2003 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4589954 {\insrsid7632817\charrsid4589954 \par }{\insrsid3278328\charrsid4589954 \par }}