Ageet v Uganda (Criminal Appeal No. 17 of 2019) [2023] UGCA 38 (7 February 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBALE CRIMINAL APPEAL NO.17 OF 2019 (CORAM: Obura, Bamugemereire & Madrama, JA)

AGEET IOSEPH :::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA::::::::::::::::::::::::::::::::::: [Appeal from the decision of Anthony Oyuko Ojok J, dated 12th November 2018 in High Court Criminal Session No.219 of 2016 Holden at Mbale)

# JUDGMENT OF THE COURT

The appellant was indicted for the offence of Aggravated Defilement contrary to section 129 (3) and (4) (a) of the Penal Code Act. It was $15$ alleged that the appellant on the 21st day of January 2015 at Adokar village in Katakwi district performed a sexual act on Irene Acam, a girl aged 6 years, knowing that he was HIV positive.

### Background

The background to this appeal is that on the 21st day of January 2015 at $20$ around 22:00 hours, while the victim was having her meal, the appellant purported to join her and then dragged her behind the house. The appellant ordered the victim to lie down and performed a sexual act on her. The victim's mother inquired from the siblings where the victim was. When the appellant heard he jumped off the victim but the victim's mother found him 25 while he was trying to dress up. The victim's brother and father also joined at the scene of crime and the appellant was arrested.

$10$

$\mathsf{S}$

The appellant pleaded not guilty and after a full trial he was convicted and sentenced to 56 years and 2 months' imprisonment. Dissatisfied, thc appellant lodged this appeal against both conviction and scntencc.

5 However, during thc hearing of the appeal, counsel for thc appellant sought Ieave of this court under rule 67 (2) of the Judicature (Court of Appeal Rules) Directions Sl l3-10 ro substitute thc carlier Memorandum of appcal filed by the appellant with a new one filcd by counsel, appealing against sentence only. Counsel for rhe respondent did not object ro the appellant's prayers. This court allor,,,ed the appellant ro file a supplementary memorandum of appeal and granted leave to appeal against scntencc only. 10

## Ground ofAppeal

That the learned trial Judge erred in law and fact in passing an illegal, manifestly harsh and excessive sentence of 56 years and 2 months to the appellant.

# 1s Re rcsentation

At the hearing of the appeal, Mr. Geoffrey Nappa represented the appellanr on state brief while N4r Sam Oola, Senior Assistant Dircctor of Public Prosecutions (DPP) represented the respondent.

## Appellant's submissions

20 Counsel for the appellant submitted that it is rrite that before any Judge sentences the convict, he or she must take into consideration thc various mitigating factors that may be brought to its attention during allocutus.

Counsel refcrred to guideline 6 (c) of the Constitution (udicature Sentencing Guidelines) which provides that "cvery court shall u'hcn sentencing an offender take into account the need for consistency with appropriate sentencing levels and other means of dealing with the offender in respect of similar offences committed in similar circumstances.

It was counsel's submission thar the need for uniformity was emphasized in

5 the case of Kajungu Emmanuel v Uganda CACA No. 625.

Counsel cited Anguyo Silver v Uganda CACA No. 38 of 2Ol4 where the appellanr who was HIV positive was convicted of Aggravated Defilement and senrenced to 2Z years imprisonment.

Counsel further referenced Ederema Tomasi v Uganda CACA No. 554 of

10 2014 where rhe appellant who was HIV positive n as convicted of Aggravated Defilement and sentenced to 18 years imprisonment.

It was counsel's contention that the trial Judge only considered rhc appellanr being a first offender and thc period spent on remand whilc mitigating the sentence but forgot to consider the age of the appellant.

15 Counsel prayed that this court invokes its powcrs under section ll of the Judicature Act to set aside the harsh sentence imposed by the trial court and accordingly pass a sentence fit in the circumstances.

#### Respondent's submissions

20 Counsel for the respondent submitted that it is trite thar an appropriatc sentencc is a matter for the discretion of the trial Judge and this court can onJy interfere where it has been shown that the sentence was illegal, manifestly harsh or excessive or where there has been failure to take into account a matcrial factor.

Counsel contended thar the maximum sentence for the offence of aggravated defilement is death and the next most serious is Iile imprisonment, however, the appellant was spared the two. Counsel added that the trial Judge considered both the aggravating and mitigating factors

5 before sentencing the appellant.

> Counsel referred to Bacwa Benson v Uganda CACA No. 869 of 2014 where the sentence of Life Imprisonment was upheld on appeal in a case where the appellant who was HIV positive was convicted of Aggravated Defilement of a girl agcd l0 years.

Counsel further cited Kaserebanyi James v Uganda SCCA No. l0 of 2014 where the Supreme Court upheld a sentence of Life Imprisonment in a case where the appellant who pleaded guilty was convicted of Aggravated Defilement of his daughter aged 15 years. 10

It was counsel's argument thar the appellant could have been sentenced to

Life Imprisonment which was more deserving given the gravity of the offence. It was counsel's submission that the sentence of 56 years and 2 months imprisonment against the appellant should not be interfered with. 15

Counsel prayed that the sentence agalnsr rhe appellant be upheld and the appeal be dismissed.

#### Decision of the Court 20

This being a first appcal, this court is obliged under rule 30 (l) (a) of the Judicature (Court of Appeal Rules) Directions to reappraise the evidence and drarv inferences of fact. This duty u'as rvell expounded in Kifamunte Henry v Uganda SCCA No. l0 of 1997 as follou,s;

"The first appellatc court has a duty to revicu, thc evidcnce of the casc and to reconsider the materials beforc thc trial Judge. The appeilatc court must then make up its own mind not disregarding the judgment appealed from bur carefully wcighing and considering it..."

5 We shall bear the above principles in mind as we resolve the grounds of appeal in this case.

We notc that in Livinqstone Kakooza v Uganda SCCA No. 17 of 1993,lt was obsen'cd that;

"Courts can and will only interfcre with a scntencc of the trial court if the sentence is illegal or is baseci on a wrong principle or the court has overlooked a material factor or where the sentence is manifestly excessive or so Iow as to amount to a miscarriage of justice."

In the instant case. counsel for the appellant contended that the trial Judgc did not consider the age of the appellant while sentencing and thus sentenced him to a harsh sentence. Thc respondent in reply avcrred that thc sentence meted out by the trial Judge was lenient given that the maximum penalty for Aggravated Defilement is death. 15

On the issue of mitigating factt'rrs, the trial Judge while sentcncing noted that;

"True, the convict is a first offender, been 3 years [c l0 months. However, the offence is rampant, victim has been put through such a traumatizing situation which will forevcr be on her mind and haunt her, convict ought to have protected her little sister, rather than harm her in such a way. I therefore sentence the 20

convict to 60 years imprisonment, less 3 years and lO months leaving him to serve 56 years and 2 months."

The abovc excerpt from the scntencing o[ the trial court shows that the trial Judge considered both mitigating and aggravating factors, howcver, he forgot or omirted to consider the age of the appellant at that time.

In Kabatcra Stevcn v Uqanda: CACA No.l23 of 2001 , this ct-rurt hclcl that the age of an accuscd person is a matcrial factor that may act as a mitigating factor, cspecially where thc convict is young. Thc court agreed rvith thc submission that the trial Judge should havc considered the age of the appellant at the time he committed thc offence before passing sentence. He was a young offender and a long period of imprisonment would not serve him to reform."

Fr.rrthcr, in Kawcsa Ivan v Uqanda CACA No. 404 of 2019 , it was held that;

"However, we think that the learned trial Judge did not give due consideration to the youthful age of rhe appellanr at thc time of commission of the offence. The appellant, rvhile testifying in Court in 2019, said that he was 2l years. He was therefore 19 years old at the time of commission of the offence, two ycars earlier. The Iearned trial Judge ought to have considered that the appellant had just passcd the dividing line, of l8 years, between childhood and adulthood, and reflccted that consideration with a shorter sentence than hc imposed." 15 20

Thc appellanr was thus sentenced to 15 ycars imprisonment.

We are cognizant of othcr cascs where this court and thc Supreme Court upheld the sentence of Life Imprisonment in cases of Aggravated Defilement however; we find that each case should be considered basing on its own clrcumstanccs

- s ln Tiborushange Emmanuella v Uganda CACA No. 655 of 2014. u'hich was cited wirh aooroval in Ansuvo Silver v Usanda CACA No. 38 of 2014 it was found that the sentence rangc approved by this court in prcvious aggravated defilement cases which did not possess aggravating factors lay berween ll years and 15 years. - In Ederema Tomasi v Uganda; (supra) this court found a sentencc of 18 years' imprisonment appropriate where the appellant was HIV positive. 10

In the instant case, we have considered that the appellant was 19 years at the time he committed the offence. This makes him a youthful offendor capable of reforming having been a first offender. We are however, mindful

of the fact that the appellant was HIV positive and an elder brother to the victim who was only 6years old which makes this an offence o[ an incestuous nature, never mind that he was not so charged. In our view, however, the sentence of 56 years and 2 months' is on the higher side given that the appellant was still a teenager at the time the offencc was committed. He was therefore a young offender u'ith prospecrs of rehabilitation if granted an opportunity. A long custodial sentence which was almost three times of his spent life was not only harsh and but also 15 20 CXCCSSIVC

25 We therefore set aside the illegal sentence of 56 years and 2 months' imprisonment. Under section ll of the Judicature Act wc now pass a fresh sentence of 24years' imprisonment against the appellant. From this u,c deduct the 3 years and I0 months which the appellant spent on remand. The appellant will now serve a sentcnce of 2l years and 2 months' imprisonment W. E. F l2'h November 2018 being thc date on which he was sentenced.

5 This appcal thcrefore succecds.

## Nota Bene

We call attention to the fact that our lcarned brothcr the Hon. Justice

10 Christopher Madrama JA does not agree rvith the sentencc and therefore has not endorsed this judgment.

+^ 15 Dated at Kampala this Day of ....fu...r0rr.

Hon. tadyJustice Hellen Obura Justice ofAppeal

Hon. l-adyJustice Catherine Bamugemereire Justice ofAppeal

.)J