Asiimwe v Uganda (Criminal Appeal 159 of 2011) [2023] UGCA 191 (1 August 2023)

Full Case Text

Leg Com

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA

(Coram: Muzamiru M. Kibeedi, JA, Christopher Gashirabake, JA, Eva K. Luswata, JA)

### CRIMINAL APPEAL NO. 0159 OF 2011

### **BETWEEN**

ASIIMWE HERBERT::::::::::::::::::::::::::::::::::

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# **AND**

**UGANDA :::::::::::::::::::::::::::::::::::**

### [Appeal from the Judgment of the High Court sitting at Bushenyi in Criminal Session Case No. 0023 of 2011 by Hon. Anup Singh 20 Choudry J delivered on the 14th June 2011]

### **JUDGMENT OF THE COURT**

#### **Introduction** 25

- 1] The appellant was charged with the offence of aggravated defilement contrary to Section 129(3) & 4(a) of the Penal Code Act. It was stated in the indictment that Asiimwe Herbert on the 14th day of March 2010, at Mishenyi village in the Bushenyi, District performed a sexual act with AB a person under the age of fourteen $(14)$ years. At the trial, AB was stated to be of six years at the material time she was defiled. - 2] The facts of the case as ascertained from the judgment of the trial 35 court are that on the 14th day of March 2010 at around 10.00pm, the appellant went to the house of the complainant and requested to be allowed to go with AB to his house, to help him retrieve his house key that he had locked in the same house. He then

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- proceeded with AB to his house and let her in through the window. $\mathsf{S}$ AB was able to locate the accused's key and opened the door. However, when the appellant entered the house, he carried AB to his bedroom and had sexual intercourse with her. When he was done, he set her free and warned her against telling anyone about what he had done to her. On the 1st day of March, 2010, AB's older 10 sister saw bruises in her private parts and when she asked her about it. AB reported to her the defilement by the appellant in his house. AB's sister reported to their grandmother who further reported the case at Kasana Police Aid post. The appellant was arrested and charged with aggravated defilement. He denied the 15 charge, and in his defense raised an *alibi*. - 3] The trial Judge found that the prosecution had proved its case beyond reasonable doubt. He convicted and sentenced the appellant to life imprisonment. - 4] The appellant being aggrieved with the decision of the High Court lodged an appeal premised on two grounds set out in the memorandum of appeal as follows; - That the learned trial Judge erred in law and fact $i$ . when he held that the appellant's alibi had been broken by the prosecution hence occasioning a *miscarriage of justice.* - That the learned trial Judge erred in law and fact ii. when he dispensed a harsh and excessive sentence without due regard to the time spent on remand and the *mitigating factors* hence occasioning $\boldsymbol{a}$ miscarriage of justice.

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#### **Representation** $\mathsf{S}$

5] At the hearing of the appeal, the appellant was represented by Counsel Geoffrey Chan Masereka on State brief, while the respondent was represented by Counsel Ssemalemba Simon, an Assistant Director of Public Prosecutions (DPP). Both counsel filed written arguments as directed by Court before the hearing of the appeal. Those have been considered when resolving this appeal.

# Appellant's submissions

#### Ground One 15

- 6 By way of introduction, Mr. Masereka re-stated our powers as a first appellate Court as enunciated in the decision of **Kifamunte** Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997. He also drew our attention to the provisions of **Section 34 (1) (c)** of the Criminal Procedure Code Act Cap 116, under which this Court has powers to reduce a sentence imposed by the High Court. Citing the decision of **Sekitoleko V Uganda (1967) EA 531**, he submitted that should we find any doubt in the prosecution case, then such doubt must be resolved in the appellant's favor. To assist resolve the first ground, Mr. Masereka cited the decision of Uganda versus Tugume, Criminal Session Case 2014/19) [2017] UGHCCRD 115 in which it was held that the prosecution must place the accused at the crime scene by adducing sufficient evidence to show that they were not where they claim to have been on the date and time the offence was committed. - 7 Mr. Masereka then referred to the appellant's evidence that he could not have defiled AB because on the fateful day, he did not share supper with Bahingwire, AB's grandmother as was their usual custom. This was because he had travelled to his home in in Katooma, Kiyima to see his wife who had delivered twins. That he remained in his home between Friday and Monday morning, the same day that he was arrested. In conclusion, Mr. Masereka

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concluded that the appellant's alibi was not broken by the prosecution, and prayed that this ground should succeed.

## **Respondent's submissions**

- 8] In response to the appellant's submission, Mr. Ssemalemba Simon agreed with his learned friend's submissions with regard to the power of this Court when sitting on first appeal. He argued however that at the trial, the prosecution adduced cogent evidence which positively placed the appellant at the scene of crime, and as such, the learned trial Judge cannot be faulted on his finding. He in particular referred to AB's evidence that on the day in question at about 10:00pm, the appellant called her to his house where he forcefully had sexual intercourse with her. Mr. Ssemalemba submitted further that, that evidence was corroborated by that of PW3 who was present when the appellant went with the victim to help him retrieve his keys from his house, and subsequently heard AB crying, and also watched the appellant exit his house while holding AB. - 9] Mr. Ssemalemba submitted further that according AB's evidence, the appellant's house was only 30 meters from her house and it is clear from her evidence, and that of PW4, that the appellant was well known to both of them for they used to have supper together. He continued that although the offence is alleged to have been committed at night, AB and PW4 clearly identified the appellant as they were well known to him, which would eliminate any chance of mistaken identity. In Mr. Ssemalemba's view, the trial Judge ably dealt with the evidence of AB and PW4, together with the appellant's defence of alibi, before coming to a correct conclusion that AB's evidence was well corroborated by the evidence of both PW4 and the appellant, which put the appellant squarely at the scene of the crime. $c^{202}$

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10] In conclusion, counsel submitted that the trial Judge cannot be faulted on his findings.

# Analysis and decision of court.

- 11] The agreed legal position is that the general duty of this Court, as a first appellate court, is to re-appraise all evidence that was adduced before the trial Court and come to our own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. See: Rule 30 $(1)(a)$ of the Judicature (Court of Appeal Rules) Directions, S. I 13-10 and Kifamunte Henry vs. Uganda Criminal Appeal No. 10 of 1997 of the Supreme Court of Uganda. In the first ground of appeal, the appellant contests the trial Judge's findings that his alibi was disproved by the prosecution. Conversely, the respondent's counsel contends that the appellant was positively placed at the scene of crime, which discounted his alibi and therefore that the trial Judge cannot be faulted for his findings. - 12] It is open for any accused person to present a defence of alibi. 25 However, they should do so at the earliest possible time for this will give the prosecution a chance to investigate it. See Yufusa Kyobe Semalogo versus Uganda, MB 3/67. The accused person is under no obligation to prove their alibi, but only to raise its reasonable probability. Once an alibi is raised, the prosecution 30 must adduce sufficient evidence to rebut it by placing the accused at the crime scene and sufficiently connect him to the commission of the offence. See Kagunda Fred versus Uganda, SC Criminal **Appeal No. 14 of 1998.** Further, every trial court presented with an alibi must before making a decision, investigate its strength. 35 See Androa Asenua & Anor v Uganda, SC Criminal Appeal No. 1 of 1998 (that cited with approval the authority of **R** versus Sukha Singh S/o Wazir Singh & Others 1939 (6 EACA 145). In

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5 Bogere Moses and Another versus Uganda, SC Criminal Appeal No. 1 of 1997, the Supreme Court provided pertinent advice on proof of alibi. It was stated as follows:

> "What then amounts to putting an accused person at the scene of crime? We think that the expression must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieued, the court must not base itself on the isolated eualuation of the prosecution euidence alone, but must base itself upon the eualuation of the euidence as a u.thole. Where the proseantion adduces euidence showing that the accLtsed person uas at the scene of cime, and the defence not only denies it but also adduces euidence showing that the acansed person uas elsewhere at the mateial time, it is incumbent on the court to eualuate both uersions judiciallg giue reasons uhg one and not the other uersion is accepted. It is a misdirection to accept the one uersion and then hold that because of that acceptance per se the other uersion is unsustainable. "

131 We have observed that in his judgment, the Judge readily considered the alibi alongside evidence of the prosecution that was raised to rebut it. In particular, he considered what he believed was uncontested evidence that the appellant lived with AB and Bahingwire and shared a meal with them daily at 9pm or lOpm. He also noted the appellant's testimony that he was called away on Friday 12th March, 20 10 to visit his wife who was just delivered twins. He also noted that the appellant stated that he only returned on Monday 15tn March, 2010 at 7am while Bahingwire stated that it was at 9am the same day. On the other hand, he pointed out that during the trial, AB was able to point out the appellant as the man who defiled her. That she could vividly remember him 15 months after the event. He considered re's evidence as sufficient to collaborate AB that on the Bahingwi

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fateful day at 10pm, the appellant went with the victim to find his house keys but upon AB's return she was crying but her grandmother did not take serious notice of it. He specifically construed AB as a very consistent witness who for her age would have no grudge with the appellant. For those reasons, the Judge rejected the alibi as an afterthought story, one raised to avoid responsibility. Our own re-evaluation of the evidence confirms those findings.

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- 14] AB testified that on non-specific date at 10pm, the appellant put her on his bed and raped her inside his house. She knew the appellant well and was able to identify him by name and then point him out in Court. - 15] PW3 Bahingwire being AB's grandmother testified that she knew the appellant very well as one who had worked for her son for five 20 months previous to the fateful day. That on the date in question, she shared supper with AB and the appellant in her kitchen. That after supper, the appellant informed her that he had left his key inside the door of his house and that the door had locked itself. The appellant requested and Bahingwire allowed him to take AB 25 to assist him get his key from the house. That later, as she was going to the latrine, she heard AB making an alarm, after which she observed the appellant leaving his house while holding AB. That although she questioned the child of the reason of her distress, she did not reveal anything to her. However, that two 30 days after that incident, one Benethi, another occupant of the same homestead, who observed the child walking with difficulty, examined the child and reported the defilement to Bahingwire. That Bahingwire herself examined AB and saw a discharge flowing 35 from her private parts. Upon questioning, AB told her that the appellant had defiled her in his house. She then reported the matter to AB's father who came with police and had the appellant arrested.

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- [16] Conversely, the appellant denied participation in the offence $\mathsf{S}$ stating that while in the market on a Friday, he received news that his wife had given birth to twins and he had to go and check on her. That he did not return until Monday at 7pm, the same morning he was arrested. He admitted that it was the practice for him to share supper with Bahingwire but denied being home that 10 day, and did not take supper with them because he had gone to see his wife. - 17] As pointed out by the Judge, the uncontested evidence is that the appellant resided in an outhouse, about 30 meters from AB and 15 Bahingwire's house. The appellant admitted that he usually shared supper with Bahingwire in her house. He further testified that due to the nature of his work, he only returned to his home in Kitooma Kayima once a month. However, that on a Friday the $12th$ , of a month that he could not recall, he was not in 20 Bahingwire's house because he had gone to check on his wife who had delivered twins and remained there until Monday 15th at 7am. Conversely, AB testified that the appellant defiled her in his house on the night of 14th March 2010 evidence that was corroborated by Bahingwire who claimed to be present on the same night, and 25 a medical examination report that was admitted on record without contest. - 18] As pointed out by the trial Judge, it is conceivable that both AB and Bahingwire knew the appellant well. Due to their close association, it also conceivable that the appellant requested and Bahingwire allowed AB to go with the appellant to his house to assist him retrieve his key. Bahingwire explained that the child accessed the house through a window. Being a child, and small enough to gain entrance that way, it would explain why the appellant requested for her assistance. Bahingwire testified that it was the appellant and no other that she saw taking AB to his

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Loop ark house and in the same vein, AB testified that it was the appellant and no other who after opening the house, picked her up and placed her on his bed before having forceful sexual intercourse with her. Bahingwire's evidence that she later heard the child raise an alarm and noted that she was crying when the appellant exited his house while holding her in his hands, strengthened the evidence of his presence at the crime scene and participation in the offence. The Judge who conducted the trial observed that AB was very consistent in her testimony, was able to positively identify the appellant, to the extent that when the Judge tested her by pointing her to a court clerk, she still insisted that it was the appellant and no other, who was her assailant.

- 19] We consider the appellant's alibi quite weak. He could not remember the dates his own wife delivered the twins and did not submit the identity of the person who informed him about the 20 delivery, to prompt him move to Kitooma to check on his wife. That alibi would largely pale against the strong evidence of AB and Bihingwire both who knew him well and were consistent about the events of the night AB was defiled. The appellant was properly identified by AB as the man who defiled her, and that evidence 25 was corroborated with that of Bahingwire who watched the appellant take AB into his house, and later saw him bring her out when is in a distressed state. AB eventually reported to Bahingwire that it is the appellant who defiled her. Given the totality of the prosecution evidence adduced, we find that the trial 30 Judge was correct in rejecting the alibi put up by the appellant. Therefore, we find no reason to interfere with the decision of the learned trial Judge. - 20] Accordingly, ground one must fail. 35

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## Ground 2 $\mathsf{S}$ Appellant's submissions

- 21] In his submissions, Mr. Masereka relied on the decision in Livingstone Kakooza V Uganda SCCA NO. 17 of 1993, to relate the principles that the court should consider before altering a 10 sentence. He then raised an alternative prayer that this Court should consider setting aside the sentence of life imprisonment for a lesser and more fair sentence. Citing the decision of **Rwanyaga** Charles versus Uganda, Criminal appeal Number 35 of 2014, he argued that Article 23(8) of the Constitution dictates that in 15 sentencing a person convicted of an offence, the time spent in lawful custody before the end of the trial should be considered. - 22] Mr. Masereka then referred us to page 16 of the record before submitting that during allocutus, it was stated for the appellant 20 in mitigation that he had been on remand for 1 year and two months, and being a young man, was capable of reforming. He thus prayed for a lenient sentence with the promise that the appellant who had left a wife with twins, could transform into a good citizen. Counsel in addition cited the Supreme Court decision 25 of Aharikundira Yustina versus Uganda, SC Criminal Appeal No. 27 of 2015, in which courts are encouraged to apply the principle of consistency in sentencing. He in addition referred to the decision of Tigo Stephen v Uganda, Criminal Appeal No. 08 of 2009, to argue that as was the case here, the appellant's 30 sentence ought to be considered to be a sentence of 20 years' imprisonment but not imprisonment for the whole of his natural life. Counsel in addition invited us to consider as a good precedent, the decision of **Ainobushobozi v Uganda, Criminal appeal 242 of 2014** in which a sentence for manslaughter was 35 reduced to ten years' imprisonment.

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[23] In conclusion, counsel prayed that this honorable court be $\mathsf{S}$ pleased to reduce the appellant's sentence and the appeal be allowed.

## Respondent's submissions.

24] Mr. Ssemalemba agreed with his learned friend on submissions of the power of an appellate court during sentencing. He however differed on the submission that the sentence of life imprisonment passed against the appellant was harsh and excessive in the circumstances. As a way of demonstrating the consistency 15 principle, he cited the cases of **Bacwa Benon versus Uganda, CA** Criminal Appeal No. 869 of 2014, Bonyo Abdul versus. Uganda, SC Criminal Appeal No. 07 of 2011 and Kaserebanyi James versus Uganda, SC Criminal Appeal No. 10 of 2014, where this Court and the Supreme Court confirmed sentences of 20 life imprisonment passed against the appellants for the offence of aggravated defilement. He concluded then that a similar sentence here was legal and neither excessive nor harsh in the circumstances. He prayed for the appellant's appeal to be dismissed and the sentence of life imprisonment passed against 25 the appellant be upheld.

## **Analysis and our decision**

- 25] Appellant's counsel has moved us to set aside the sentence which 30 he considers both harsh and excessive made without due regard to the mitigating factors that were presented at the trial, and without considering the period spent on remand. The law as to the circumstances under which this Court, as a first appellate court, may interfere with the sentence of a trial court is settled. Before 35 this Court can interfere with a sentence, any one or more of the factors below must exist: - a) The sentence is illegal.

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- b) The sentence is harsh or manifestly excessive. - c) There has been failure to exercise discretion. - d) There was failure to take into account a material factor. - e) An error in principle was made.

## See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014; Kyalimpa Edward Vs Uganda, Supreme 10 Court Criminal Appeal No. 10 of 1995; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2000 and Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

To determine whether the trial Judge followed the above $26$ 15 guidelines, we reproduce excerpts of his sentencing ruling. He stated at page 16 of the record that:

> "This is serious offence of defilement which is committed. Mostly young men as I had stated that 60% of population are young ones and in the defilement cases there is no first offender. If $I$ give the accused a chance that means I would have given the one left at home also a chance to go and defile. Accused defiled a girl of 6 years. I accordingly sentence the accused to Life *imprisonment, this will act as signal to the rest.*"

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It is clear from his order that the Judge took no consideration of $27]$ the mitigating factors presented for the appellant that he was a young man who was capable of reforming and had a wife and a set of twins to care for. He also made no reference to the prayer for a lenient sentence. He instead concentrated on the aggravating factors and in addition made an incorrect observation that a convict cannot be regarded as a first offender in a defilement case. The prosecutor had in his submissions confirmed that the appellant had no criminal record and thus, there would be no basis for the Judge to ignore or disregard that fact.

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Mitigation of sentences is a matter of Statute. Under Section 108 $\mathsf{S}$ 281 of TIA, any person including those liable to imprisonment for life, may be sentenced for any shorter term. That provision is by no means mandatory. However, since the decision in Attorney General versus Susan Kigula & Others, Constitutional Appeal No 3 of 2006, held that the death sentence is no longer a 10 mandatory sentence for offences specified in the Penal Code, those convicted of aggravated defilement can benefit from mitigation. However, since the appellant here was liable to suffer death on conviction, and in this case of a prevalent offence, public interest would require a substantial penalty. Thus it cannot be 15 said that the sentence of life imprisonment was made on wrong principle. However, what we are prepared to find is that a sentence of life imprisonment in the circumstances of this case, given without considering the uncontested mitigating factors, resulted into a harsh and manifestly excessive sentence that 20 caused a miscarriage of justice. The interests of justice would require that we set it aside, which we do. We then proceed under the powers of this Court pronounced in Section 11 of the Judicature Act, to consider an appropriate sentence in the circumstances. 25

29] In coming to a just decision, we shall be guided by the principle of consistency which has traditionally been well followed by the courts to avoid wide disparity in sentences that may appear to give an appearance of injustice to a particular convict or appellant. It is in itself a measure of whether in given circumstances a particular sentence is harsh and manifestly excessive. We are fortified in our findings by the provisions of Paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, which provides that "*a court should be* quided by the principle of consistency while passing a sentence to a convict." Also by the case of **Aharikundira Yustina versus Uganda (Supra)** it was stated that:

> "... it is the court while dealing with appeals regarding *sentencing to ensure consistency with cases that have* similar facts. Consistency is a vital principle of a

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- 301 Some previous cases although not precedents for this purpose, can give valuable reference. In Ssentongo Latibu vs Uganda, Court of Appeal Criminal No. 73 & 111 of 2016, the appellant defiled a S-year-old daughter of his neighbor and was sentenced to 48 years' imprisonment. On appeai the sentence was reduced to 25 years. Yet in Senoga vs. Uganda, Criminal Appeal No. O74 of 2O1O (unreported), the appellant who was convicted of defiling his niece of 10 years was sentenced to 30 year's imprisonment, which this court maintained. Again in Byera Denis vs. Uganda, Court of Appeal Criminal Appeal No. 99 of 2OL2, this Court substituted a sentence of 30 years' imprisonment with one of 20 years' imprisonment lor aggravated dehlement of a child aged 3 years. 15 20 - 31] During the allocution proceedings the prosecutor submitted that the accused was a first time offender, but that the victim was a girl child, vulnerable and in need of protection. That she went under psychological torture that may have lasted up to the time the appellant was convicted, and as such, the appellant ought to be kept away from public. We in addition take into consideration that the appellant was well known to AB and her grandmother. He was in a position to protect her but instead sexually ravished her and then denied the offence. Conversely it was stated in mitigation for the appellant that he was a young man who had been on remand for one year and two months, and capable of reform. His counsel prayed for a lenient sentence. The appellant himself added that he would leave prison and become a good citizen and that being an orphan, he was leaving his wife with twins. In our view, the appellant's age and family situation at the time of his conviction, as well as his demonstration of remorse, are important mitigating factors that we do not take lightly. 1iry

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- 32] Thus, after taking into account the gravity of the offence, and after $\mathsf{S}$ weighing the aggravating and mitigating factors that have been identified and similarly decided cases, we consider a sentence of 20 years' imprisonment more appropriate. - 33] In addition, we are enjoined under Article 23(8) of the Constitution $10$ to take into account the period of 1 year and 2 months spent on remand, which we deduct from the 20 years' imprisonment. Accordingly, the appellant shall instead serve a term of 18 years and 10 months' imprisonment, to run from 14th June 2011, the date of his conviction. 15 - 34] Accordingly this appeal has succeeded in part in the terms above.

**Dated** at **Kampala** this .................................... 20 Minabre 20 MUZAMIRU M. KIBEEDI **JUSTICE OF APPEAL** 25 **CHRISTOPHER GASHIRABAKE** 30 **JUSTICE OF APPEAL** 35 K. LUSWATA JUSTICE OF APPEAL