[2025] UGCA 133

# THE REPUBLIC OF UGANDA IN THE COURT OF APPE,AL OF UGANDA AT ARUA

[Coram: Geoffrey Kiryabwire, JA; Irene Mulyagonja, JA; Eva K. Luswata, JA]

## CRIMINAL APPEAL NO. 423 OF 2OI4

(Arising from High Court Criminal Session Case No. 0031 of 2012 at Arua)

## BETWEEN

WADRI VAN VALARE APPELLANT

#### AND

UGANDA RESPONDENT

(An Appeal from the Judgment of the High Court of Uganda Nyanzi Yasin JA Delivered on the 6tr'day of March 2013)

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## JUDGMENT OF THE COURT

#### **Introduction**

The Appellant was indicted and convicted of the offence of **Aggravated Defilement** C/S 129(3) and $4(b)$ of the Penal Code Act Cap 120.

#### **The Facts**

On the 25^th December 2010 at around 9:00pm, the victim (14 years old) was on her way home from Adraka Trading Centre, in Adraka Village, Arua District. On her way home she met the accused Wadri Van Valere (54 years old). He introduced himself to her and asked her name. After answering his question, he promised her that she would die. He pulled her to the bush, strangled her, removed her knickers and had sexual intercourse with her, while he was HIV positive. She eventually ran back and reported to her brother Atenza Hassan and father. Through the Local Council (LC) authority and police, the accused was arrested and charged. The victim was examined on police form PF3 and found to have injuries and a raptured hymen and determined to be around 14 to 15 years old.

#### **Decision of the Trial Court**

The Trial Judge sentenced the Appellant to 30 years' imprisonment. Dissatisfied with the said decision, the he appealed against conviction and sentence on the grounds that: -

- 1. The learned trial judge erred in law and fact when he convicted and sentenced the Appellant to an illegal and harsh jail term of 30 years' imprisonment. - 2. The learned trial judge erred in and fact when he failed to properly evaluate the evidence before him thus reaching a wrong decision.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Mr Aleku James of M/S Solace Advocates, and the Respondent by Aleto Innocent Senior State Attorney from the Office of the Director of Public Prosecutions.

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The parties sought the leave of Coutt to adopt their written submissions as their legal arguments in this Appeal which was granted.

## Powers of the Appellate court

This is a first Appeal. We are alive to the duty of a first appellate Court which was espoused in the case of Kifamunte Henry v Uganda SCCA No.lO of 1997 to reappraise all the evidence at the trial and come up with our own inferences of law and fact.

On the altemative ground of contesting the sentence that had been passed we are also alive to the decision in Ogalo s/o Owoura v R (1954) 21 EACA 270.|n the appeal, the appellant appealed against a sentence of l0 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. On the relevant principles to interfere with sentence, the East African Cout of Appeal in that appeal held that: -

"... The principles upon which the appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by the trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has also acted upon wrong principle or overlooked some material factor. " To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offence ottracting less severe penalties. Courts also have odded another principle ofconsistency in terms of equality before the law so that the offences commitled under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor ... "

We shall apply the above principles to this appeal.

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Ground No.2: The learned trial judge erred in and fact when he failed to properly evaluate the evidence before him thus reaching a wrong decision.

## Submissions of Appellant

Under this ground Counsel for the Appellant argued that the Trial Judge while evaluating the entire evidence regarding the defence of alibi raised by the Appellant, did not consider the aspect of time when each event happened, but rather considered only dates thereby erroneously rejecting his plea of alibi.

Counsel further argued that it is the duty of the Prosecution to place the accused at the scene of crime at the material date and time before rejecting the defence of alibi.

Counsel contended that the trialjudge was supposed to evaluate evidence regarding time, while evaluating the evidence of alibi raised by the accused which he did not do thus reaching a wrong conclusion. The Appellant had testified that, he did not go anywhere that night and slept at home in the same room as DW2 who was his father.

Counsel argued that, by the Appellant raising the defence of alibi, he did not assume the burden ofproving it. It was the duty ofthe prosecution to disprove his defence, through adducing cogent evidence, but they did not take time to investigate his defence. Counsel asked Court to find that the Appellant had raised doubt about his presence at the scene of crime on the day and specifically the time that the victim was defiled.

Counsel submitted that the evidence of PW3 showed that there were inconsistencres and contradictions in the prosecution evidence, however the same were ignored by the judge during evaluation of evidence.

## Submissions of the Respondent

Counsel for the Respondent submitted that the Appellant was placed at the crime scene by the victim, and the defence of alibi was an afterthought, since it was not raised at the earliest opportunity during the trial. The Trial Judge rendered the Appellants defence untruthful. The evidence of DW1, the Appellant and DW2 were

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marred with contradictions. On the one hand, the Appellant testified on page 20 of the Record of Appeal that he returned from church with his aunt; he stayed at home and sent DW2 to go look for his brother. On the other hand, DW2 testified that he did not leave the home on that fateful day. Thus the Judge rightly disbelieved the evidence of alibi.

Counsel for the Respondent further submitted that conditions for correct identification of the Appellant were sufficient for the identification of the Appellant. There was also sufficient moonlight to identify him, thus the Trial Judge properly evaluated the evidence, reaching the right decision.

## **Findings and Decisions of Court**

We have considered the submissions of both Counsel for which we are grateful.

Rule 66 (2) of the Court of Appeal Rules provides as follows:

"The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and ln a third appeal the matters of law of great *public or general importance wrongly decided.* "(Emphasis added)

According to this Rule, the Memorandum of Appeal in a first appeal such as this one, should set forth concisely the grounds of objection to the decision appealed against specifying the points of law or fact or mixed law or fact, which are alleged to have been wrongly decided. Given the submissions for the Appellant, it becomes clear that what counsel wanted to appeal against was not framed in the Memorandum. It was a general ground that was included in the Memorandum of Appeal to enable counsel for the Appellant to fish for wrongs in the decision that he had not identified as he prepared for the appeal.

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For those reasons, ground 2 did not comply with the requirements of Rule 66 (21 of the Court of Appeat Rules. We therefore have no altemative but to strike it out.

## Ground No.l: The learned trial judge erred in law and fact when he convicted and sentenced the Appellant to an illegal and harsh jail term of 30 years' imprison ment.

## Submissions of Appellant

Under this ground, the Counsel for the Appellant submitted that the Trial Judge while imposing the sentence on the Appellant reasoned that the actions of the Appellant called for a deterrent sentence and rendered a sentence of 30 years' imprisonment. Furthermore, that the Appellant by his own testimony confessed to being HIV positive and on medication, and that as he was of advanced age, that ought to have been put into consideration for mitigation of the sentence.

Counsel argued that the Trail Judge in his judgment treated the Appellant as a first time offender, atluding to the fact that the Appellant was a widower and his imprisonment would leave his 3 children with no care-taker as he had been on remand for 2 years and 6 months. These factors should have been factored in for leniency. Further, had the Trial Judge properly addressed their mind to the mitigating factors, he would have imposed a sentence below 30 years. Counsel submitted that there was a need for parity in sentences, and the Appellants sentence should have been found to be illegal.

## Submissions of Respondent

Counsel submitted that the sentence of 30 years' imprisonment for Aggravated Defilement was neither harsh nor excessive or inconsistent with the cases of a similar nature. Furthermore, that Counsel for the Appetlant had not demonstrated how 30 years' imprisonment was excessive, in light of the maximum sentence of death. Counsel submitted that sentencing was at the discretion of the Trial Judge and an Appellate Couft can only infer with the sentence of the lower court where in the exercise of its discretion, the Court imposes a sentence which is manifestly excessive or so low as to amount to a miscarriage of justice.

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Counsel further argued that there was consistency in the sentencing as numerous cases in both the Supreme Court and Court of Appeal have found sentences of 30 years' imprisonment for the offence of Aggravated Defilement neither harsh nor excessive.

As to the period spent on remand, counsel for the Respondent submitted that the legal regime at the time of sentencing the Appellant did not require the Trial Judge to mathematically deduct the period spent on remand, as the Appellant was sentenced on the 06^th March, 2013. The legal regime changed on the 03^rd March 2017 with the case of **Rwabugande Moses Vs Uganda SCCA No. 25 of 2014.**

## **Findings and Decisions of Court**

We have considered the submissions of both Counsel for which we are grateful.

Under this ground Counsel for the Appellant argued that had the Trial Judge properly addressed his mind to the Appellants mitigating factors, he would have imposed a sentence below 30 years. Counsel submitted that the trial Court overlooked some material facts and this Court should reduce the sentence to a range consistent with a plea of guilty which this Court has imposed on cases that are alike in nature.

We have also addressed ourselves to the **Sentencing Guidelines for the Courts of** Judicature (Practice) Directions, Legal Notice No. 8/2013, and in particular **Guideline 6(a)** (Supra) which Counsel for the Respondent referred to.

The trial Judge found as follows when sentencing the Appellant: -

... I treated him as a first offender. I have considered the period he has been on remand which is over 2 years now. I have considered his social obligation. He being a widower meaning that if his imprisonment leaves the 3 children

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with no caretaker. His background also is relevant to pronouncing his *sentence. He is educated only up to P.7 and then joined the army.*

However, the kind of offence he committed is an offence committed for pleasure or out of style. There are not compelling factors for one to defile. In murder provocation may be a mitigating factor, defilement has no such situation. This is an offence committed by selfish people to please their emotions, his disobedience of their rationality the accused knew of his HIV status in 2005. He was on drugs. He is a father. He would have been kind to other people's children not to expose them to such life threatening or *terminating situation...*"

The Trial Judge rightfully applied both mitigating and aggrieved factors. There is also evidence that the victim sustained scratches on her neck suggesting strangulation, and injuries on her thighs alluding to violence. We are unable to fault the trial Judge in this regard.

With regard to the consistency of the sentence we have addressed our minds to the following cases where 30 years' imprisonment for the offence of Aggravated Defilement was upheld. In the case of, Okello Geoffrey V Uganda SCCA No. 34 of 2014 where the Court held: -

"...in terms of severity of punishment in our laws, a sentence of life imprisonment comes next to the death sentence which is still enforceable under our laws... courts have powers to pass appropriate sentences as long as they do not exceed the maximum sentences provided by law. Article 28(8) of the Constitution provides that no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum that could have been imposed for the offence at the time it was committed."

In the case of Ndika v Uganda (Criminal Appeal 357 of 2015) [2024] UGCA 190 (19 July 2024), the Appellants were relatively young men, and this Court found that the sentence of 23 years' imprisonment imposed on the Appellant were neither harsh nor excessive. The appeal was dismissed.

Further there is a need for consistency and parity as elucidated in **Aharikundira** Yustina v Uganda SC Criminal Appeal No. 27 of 2015. The case of Ndika $\mathcal{M}$ . (Supra) at pgs. 18-19 espouses the two principles:

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"... In Olara John Peter versus Uganda, CA Appeal Criminal Appeal No. 30 of 2010, this Court declined to interfere with a sentence of 16 years' imprisonment imposed on an Appellant who pleaded guilty to defiling a l4*vear-old girl. In Bonyo Abdul versus Uganda CA Criminal Appeal No. 7 of* 2021, the Supreme Court upheld a sentence of life imprisonment for an Appellant who defiled a girl of 14 years. In **Kayanja Hassan versus Uganda**, **CA Criminals Appeal No. 206 of 2021**, this Court upheld a sentence of 22 years and one month for an Appellant who defiled a school girl of 15 years. In Anguvo Siliva versus Uganda, CA criminal Appeal No. 0038 of 204, this *Court when following the Anguyo decision, reduced a sentence of 27 years to* 21 years and 28 days' imprisonment for a 32-year-old Appellant who had defiled a girl under the age of 14 years. Yet in Kayanja Hassan versus Uganda, CA Criminal Appeal No. 206 of 2021, this Court declined to interfere with a sentence of 22 years I month for the same offence by an Appellant aged 25 years. In Tiboruhanga versus Uganda, CA Appeal **Criminal Appeal No. 655 of 2014**, this Court imposed a sentence of 22 years on a 30-year-old Appellant who pleaded guilty to defiling a 13-year-old girl."

Further, in the case of **Katuramu v Uganda** (Criminal Appeal 114 of 2016) [2024] UGCA 245 (4 September 2024), the Appellant who was HIV positive was convicted of Aggravated Defilement and sentenced to 44 years' imprisonment. On appeal, the sentence was reduced to 20 years, 1 month and 23 days from the date of conviction.

In Ocen v Uganda (Criminal Appeal 19 of 2022) [2024] UGCA 97 (3 May 2024), the Appellant was HIV positive was convicted for the offence of Aggravated Defilement and sentenced to 20 years in prison. This Court upheld the sentence of 20 years, and considered the time spent on remand.

In Kayanja Hassan v Uganda (Criminal Appeal 206 of 2021) [2024] UGCA 30, the Court noted that in similar cases where the Appellants were HIV positive, the sentencing range was between 21-25 years' imprisonment. Therefore, the Court upheld the sentence of 22 years and 1 month's imprisonment.

With regard to the period spent on remand, the Appellant was sentenced on the 06^th March 2013. The Trial Judge on this point found: -

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"l have considered the period he has been on remand which is over 2 years novJ

The requirement to apply arithmetic formula to deduct the period spent on remand commenced with the decision in Rwabugande Moses Vs Uganda SCCA No. 25 of 2014, which was delivered on 03'd March2017. This notwithstanding whereas the record shows that the Appellant spent 2 years and 6 months on remand the trial Judge was vague when he stated that the Appeltant had spent " ...over 2 years now... ". This makes it unclear where the starting point for sentencing was vls-a-vis the period spent on remand. We accordingly find that the sentence rneted does not meet the constitutional requirement to properly take into account the period spent on remand. We therefore set aside the sentence as illegal and exercise our resentencing powers under Section 11 of the Judicature Act to sentence the Appellant to 25 years' imprisonment.

We resolve this ground in the affirmative.

## Final Decision

Having held as we have on the above issues, we decide and order that: -

1. The sentence of the trial Court is set aside and replaced with a fresh sentence of25 years. To this sentence we deduct the period on remand of2 years and six months. The Appellant shall now serve a period of 23 years and 6 months from the date of conviction of 06'r' March 201 ³

We so order.

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Dated at Kanpale. ...................................

Hon Mr Justice Geoffrey Kiryabwire, JA

$\overline{\phantom{a}}$ Hon Lady Justice Irene Mulyagonja, JA $\blacksquare$

Hon Lady Justice Eva K. Luswata, JA