[2025] UGHC 481

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT WAKISO**

# **CRIMINAL SESSION CASE No. 0717 OF 2022**

| UGANDA | ::::::::::::::: | PROSECUTOR | |--------------------|-----------------|------------| | | VERSUS | | | SEWANTAYI JONATHAN | ::::::::::::::: | ACCUSED |

## **BEFORE: HON. LADY JUSTICE GRACE FLAVIA LAMUNO**

## **SENTENCE AND REASONS FOR SENTENCE**

The accused was indicted with the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act now section 116 (3) and (4) (a) of the Penal Code Act Cap 128. When this case came up on 22nd May 2025, for plea, the accused pleaded guilty to the indictment.

The learned Resident State Attorney, Ms. Akello Dolly Gladys narrated the following facts of the case; on 22nd October 2020 at about midday at Kirimamboga village in Wakiso, the victim, NS, left her parents' home in the rain and she went to the neighbourhood where the accused person resides. She found the accused outside the house and she went directly to the house of the accused person where she was defiled. She has been a friend of the accused person and the accused person has defiled her since March 2020. The victim stated that they have been playing sex with the accused person. The victim revealed to the mother what happened and that it was not the first time the accused had played sex with her. The victim's mother together with her eldest son went and reported the mater to Buloba Police Station. The police arrested the accused. Upon interrogation, the accused admitted having had sexual intercourse with the victim on three occasions and he was charged with aggravated defilement. The victim was taken for medical examination where she was examined and found to be a juvenile of 10 years old and her hymen had ruptured due to penetrative sexual intercourse. The accused too was examined

and was found to be an adult of sound mind of 24 years. Both police forms; P. F. 3A and P. F 24A and immunization care of the victim were tendered as part of the evidence.

Upon ascertaining from the accused that the facts as stated were correct, he was convicted on his own plea of guilty for the offence of Aggravated Defilement c/s 116 (3) and (4) (a) of The Penal Code Act.

Submitting in aggravation of sentence, the learned State Attorney stated that although the accused is a first time offender, the offence is very rampant and there's need to help the convict to reform. She added that the victim was only ten years old, she has been deprived of her innocence not once but thrice and she prayed that he be given a deterrent sentence. She added that of all the adult women, the convict chose a ten-year girl which is painful. The sentence should be deterrent enough to send a message to would be defilers to leave young girl/children to pursue their dreams.

In response, the learned defence counsel Mr. Julius Seluwambala prayed for a lenient custodial sentence on grounds that; the convict has no pending criminal charges against him, is a first time offender, has pleaded guilty and saved court's time and resources. He has been on remand for over four years. He is 24 years old with a bright future ahead of him. He is a remorseful person.

In his *allocutus*, the convict prayed for lenience on grounds that he has been on remand for long, he committed the crime and is apologetic. He is now a reformed man no longer controlled by his body. He prayed that the time has spent on remand be considered his sentence. When he comes out of custody, he commits to educating other citizens not to commit such crimes.

The maximum punishment for aggravated defilement under section 116 (3) of the Penal Code Act Cap 128 is the death sentence. However, Part VII of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 (hereafter Sentencing Guidelines) provides that this punishment is reserved for the "rarest of the rare" cases where the alternative of imprisonment for life or other custodial sentence is demonstrably inadequate. In view of the fact that death was not a likely or foreseeable outcome of the offence, I do not consider the death sentence to be appropriate in this case

Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. Part VII of the Sentencing Guidelines provides the considerations for imposing a sentence of imprisonment for life. While the offence is serious, the principle of proportionality requires that the punishment not exceed what is necessary to achieve justice in the particular case. A life sentence, though lawful, may become disproportionately harsh where it does not consider the offender's potential for rehabilitation, reintegration and mitigating circumstances. A sentence that offers hope of reintegration is more consistent with the rehabilitative objectives of justice. Therefore, since proportionality is the cardinal principle underlying sentencing practice, and although the offence qualifies as aggravated under the law, I do not consider the sentence of life imprisonment to be appropriate in this case where the circumstances do not reveal elements of extreme violence, or premeditation, that would justify a severe custodial sanction.

S.19 (1) of the sentencing guidelines provides that the court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence. When imposing a custodial sentence on a person convicted of the offence of Aggravated Defilement c/s 116 (3) and (4) (a) of the Penal Code Act Cap 128, the sentencing guidelines 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 the basis of the aggravating factors that may justify a harsher sentence or reduced on account of the relevant mitigating factors that may support a reduced sentence.

Although the circumstances of the offence did not amount to a direct and immediate threat to life so as to justify the ultimate penalty, the gravity of the act involving the sexual violation of a vulnerable child is so serious that it demands a firm and deterrent custodial sentence to reflect society's condemnation and to protect other potential victims. At the time of the offence, the accused was over 24 years old and the victim 10 years old. The age difference between the victim and the convict was 13 years. He took advantage of the trust the victim had placed in him. I am, however, guided by the decision of the Court of Appeal in *Ninsiima v. Uganda*, Criminal Appeal No. 180 of 2010, in which the Court emphasized that sentencing guidelines must be applied in light of established judicial precedents, particularly in cases with comparable facts. In that matter, the Court set aside a sentence of 30 years' imprisonment and substituted it with a term of 15 years for a 29-year-old appellant who had been convicted of defiling an 8-year-old child.

I have also taken into account current sentencing trends in cases of this nature. In *Agaba Job v. Uganda*, C. A. Crim. Appeal No. 230 of 2003, the Court of Appeal, in its judgment of 8th February 2006, upheld a sentence of 10 years' imprisonment for an appellant who pleaded guilty to defiling a six-year-old girl. Similarly, in *Lubanga v. Uganda*, C. A. Crim. Appeal No. 124 of 2009, the Court upheld a 15-year sentence for a guilty plea to aggravated defilement of a one-year-old child. In *Abot Richard v. Uganda*, C. A. Crim. Appeal No. 190 of 2004, the Court upheld a sentence of 8 years for defilement of a 13-year-old, noting that the appellant had already spent 3 years on remand. In *Lukwago v. Uganda*, C. A. Crim. Appeal No. 36 of 2010, a sentence of 13 years' imprisonment was confirmed for a guilty plea to aggravated defilement of a 13-yearold girl.

Lastly, in *Ongodia Elungat John Michael v. Uganda*, C. A. Crim. Appeal No. 06 of 2002, a sentence of 5 years' imprisonment was upheld for a 29-year-old convict who had defiled and impregnated a 15-year-old school girl, having already spent 2 years on remand. Guided by these precedents and in light of the aggravating features present in the current case, I have adopted a starting point of nine (9) years' imprisonment which in the view of this court, is just, proportionate, and necessary to serve the purposes of punishment, deterrence, and the protection of vulnerable members of our society.

In mitigation, I have considered the offender's lack of prior convictions and demonstrated remorse which suggest a capacity for reform. I have also considered the fact that the convict pleaded guilty. The practice of recognizing a guilty plea as a mitigating factor is well-established and now enjoys near-statutory recognition under Regulation 21(k) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. While this does not confer a legal right to a sentence reduction, it remains a principled basis upon which courts may, in the exercise of their discretion, grant a sentencing discount. In the present case, I have taken the guilty plea into account as a mitigating factor. It was entered at the earliest opportunity and spared the complainant, a child, the trauma of testifying. For this, he is entitled to a degree of leniency. A plea of this nature, particularly when entered prior to the commencement of trial, may typically justify a sentencing discount of up to one-third of the sentence that would otherwise have been imposed after a contested hearing. His plea is taken as a sign of remorse and has been considered as a mitigating factor in determining the appropriate sentence.

Having considered the submissions in mitigation and the convict's allocutus, I reduce the sentence to six (6) years' imprisonment which is sufficient to reflect the gravity of the offence while preserving the possibility of rehabilitation. Pursuant to Article 23(8) of the Constitution and Regulation 15(2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the court is required to deduct from the sentence the period the convict has already spent on remand, after all relevant factors have been considered. I deduct the four (4) years, six (6) months, and eleven (11) days the convict has spent on remand. I now sentence you Sewantayi Jonathan to one (1) year, five (5) months, and nineteen (19) days' imprisonment, for aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act Cap 128 starting from 22nd May, 2025 the date of conviction.

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.

Dated at Wakiso this 12th day of June, 2025.

**GRACE FLAVIA LAMUNO JUDGE 12 June 2025**

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