Habiyakale v Uganda (Criminal Appeal 215 of 2022) [2024] UGCA 337 (24 January 2024)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT I(ABALE

Coram: Mulgagonja, Luswata & Gashirabake, JJA

# CRIMINAL APPEAL NO. 215 OF 20/22

#### BETWEEN

HABIYAKALE WILSON:3::::33:::::33::::::::33::3:!:::i3:!:3:::::::::::::: APPELLANT

#### AND

UGANDA:::::3:3:::3::::::3:i:i::::!3:3::::3:3!::::33::3:3:::::::i::3!3!:!:::::::: RESpONDENT

# (An appeal o,go;lrrst the d.ecislon of Kazlbute Kauuml J, dellaered. on 7Vh June 2O22 at Kabale in Htgh Cour-t, Crimlnal Session Case No. O1O4 of 2022)

## JUDGMENT OF THE COURT

# Introduction

15 The Appellant was indicted for the offence of aggravated defilement contra-ry to sections 729 (3]r, (a) (a) and (c) of the penal Code Act. After a full trial, he was convicted and sentenced to 17 years and 9 months, imprisonment.

## Background

20 The facts as discerned from the Record were that between 201g and 20L9 the victim, whom we referred to as TD in this judgment, was a pupil at Chuho Primar5r School, Chuho Village, Gasinza parish, Nyakabande Sub county in Kisoro District. The Appellant was the head teacher at the school. TD left that school and transferred to Mother Mary Primary School where she was enrolled for primary Seven under <sup>25</sup> the sponsorship of Compassion, a charity organisation.

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It was alleged that on 28th February 2022, TD got permission to visit <sup>a</sup> hospital, which was granted to her, but she had to get a referrar letter from her sponsors, Compassion, before she could go to the Hospital. TD set off for the Hospital but on her way she met the Appellant with whom they had a discussion about her studies. As fate would have it, it began to rain and the Appellant invited her to take shelter at his home.

while there, the Appellant forced her into having sexual intercourse with him after which he gave her shillings 5,000 and a packet of doughnuts. After a while, fearing that she could have conceived, TD informed the school matron about the incident. A report was made to her guardian and to the Police leading to the arrest of the Appellant.

The Appellant was indicted with the offence of aggravated defilement under the provisions mentioned above, but at his trial, he denied it. The tria,l Judge found sufficient evidence to convict him and on 4th Julv 2022, he sentenced him to 17 years and 9 months, imprisonment.

Being dissatisfied with both conviction and sentence he appealed to this court, first in a memora,dum of appeal that was filed on 3oth January 2023, where 5 grounds of appeal were advanced. However, counsel for the Appellant filed an amended memorandum of appeal on 2gth June 2024, which was allowed by the court, in which he raised the following grounds:

- 1' The learned trial Judge erred in law and fact when he failed to properly examine the evidence on record and thereby wrongfully convicted the Appetlant and occasioned a miscarriage of justice. - 2. The learned trial Judge erred in law and fact when he failed to take note of the gross contradictions and inconsistencies in the prosecution case while convicting the Appellant thereby occasioning a miscarriage of justice.

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3. The learned trial Judge erred in law and fact by passing a sentence against the Appellant which was illegal, harsh and excessive.

The Appellant proposed that the appeal be allowed and the orders of the trial court be set aside. The Respondent opposed the appeal.

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

When the appeal was called on for hearing on 2<sup>nd</sup> July 2024, Ms Nabagala Grace Ntege, Chief State Attorney, represented the Respondent. The Appellant was in court and was represented by Ms Namara Alice on State Brief.

- Court granted the prayer by counsel for the Appellant to validate the 10 memorandum and notice of appeal that had been filed out of time without the objection of counsel for the Respondent. Further to that, court, of its own motion, questioned the validity of ground 1 of the appeal, in view of the provisions of rule 66 (2) of the Court of Appeal - Rules. Counsel for the appellant conceded that it was imprecise and 15 contravened the provision of the Rules of the Court. She withdrew it and proceeded to address court on grounds 2 and 3.

We considered the two grounds of appeal in chronological order. We reviewed the submissions on each of them immediately before we disposed of them.

#### **Analysis and Determination**

The duty of this court as a first appellate court is provided for in rule 30 (1) of the Judicature (Court of Appeal Rules) (Directions) SI 13-10. It is to reappraise the whole of the evidence adduced before the trial court

and come to its own decision on the facts and the law, taking into 25 consideration that it did see the witnesses testify.

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we therefore re-appraised the whole of the evidence that was placed before us, taking into consideration the decision of the trial court appealed against, the submissions of counsel and the authorities that were cited, as well as those not cited but which we considered appropriate for the disposal of the appeal.

#### Ground 2

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The Appellant's grievance in ground 2 was that the tria-l Judge failed to consider the gross contradictions and inconsistencies in the prosecution evidence while convicting the Appellant and he thereby occasioned a miscarriage of justice.

Ms Namara, counsel for the Appellant submitted that there were inconsistencies and contradictions in the evidence adduced in that the Appellant was not placed at the scene of the crime. That because of that, he had at alibi. She contended so because the indictment stated that the offence took place between the year 2019 and Februar5r 2022. Tlnat the word "betu.teen" used in the Indictment did not include the month of February 2022. Neither did it include the year 201g.

counsel went on to point out that pw1 testified that when she went to the Appellant's home in 2OI8, there was nobody at the home. But during cross examination, she stated that she told the police what she stated in court, that she first went to the head teacher's house when she was in Primary six in 2o 18 and this evidence was confirmed by the trial Judge at page 1 1 of his judgment. she went on to observe that the victim further stated that she went back to the head teacher,s house on 28tt' Februar5i 2019. Impliedry, these were contradictions in the 20

testimony of the victim about when she went to the Appellant,s house.

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Counsel further pointed out that the victim testified that she got permission from the teacher on duty, Christine Iraguha (pW7)). That however, PW7 stated that pupils had to get a chit for permission to go to hospital. But later on she contradicted herself when she stated that the victim was given permission orally. she contended that this cast doubt as to whether she got permission and raised questions as to whether she left the school at all to go to the hospital.

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counsel went on to contend that it was incumbent on the prosecution to prove that the victim was below the age of 14 years when the Appellant was alleged to have committed the offence. However, the medical evidence (PF3) exhibited as PEX1 indicated that the victim was <sup>14</sup>years'old. Impliedly, she was not below the age of 14 years, so the Appellant was entitled to benefit from this. She referred to the decision of this court in Byakatonda Bosco v. Uganda, Criminal Appeal No. O348 of 2Ol7 to support her submission. 10 15

Ms Namara further submitted that it was unchallenged evidence that by the end of Term I of 2019, the victim had left Chuho primary School. That as a result, the appellant was no longer her head teacher because she was at the time of the alleged defilement a pupil at Mother Mary Primary School. The Appellant was therefore no longer a person in authority over her.

counsel then contended that the provisions under which the Appellant was indicted required the court to come to the conclusion as to whether the Appellant was a person in authority over the victim. However, the trial Judge did not eva-luate the evidence in that regard nor make <sup>a</sup> decision about it. She went on to submit that the penal code Act does not define who a "person in authoitu,, is. That the term was defined in Uganda v. Abdalla Nabil Salaam, High Court Criminal Session Case <sup>I</sup>

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No. OOO4 of 2014, to mean any person acting in loco parentis to the victim, or any person responsible for the education, supervision or welfare of the child and persons holding a fiduciary relationship with the child.

5 She concluded that had the trial judge evaluated the evidence in that regard, he would have come to the conclusion that this ingredient was not proved and the conviction and sentence ought to be set aside.

In reply to the contention that there was a contradiction or inconsistency in the evidence as to whether the victim got permission to get out of the school to seek medical treatment at the hospital, counsel for the Respondent submitted that it was on the Record that she did so' That PWlo gave a referrar note on 2gth February 2o22 and, the victim did actually get out of the school. 10

with regard to the contention that there was a contradiction with regard to the victim's age, counsel conceded that she testified that she was <sup>14</sup> years old at the time the offence was committed. That however, there was no contradiction because it was recorded in pEXl that the victim was 14 years old by dentition, but her birth certificate showed that she was 4 months' shy of making the age of 14 years. She exprained that the victim was to turn 14 years in Jury 2022 and was therefore below the age of 14 years. She thus asserted that this contradiction was <sup>a</sup> minor one that did not go to the root of the evidence against the appellant. 15 20

counsel then submitted that the victim did get permission to leave the school and go to hospital for treatment. She met the Appelant who was a person in authority over her and he defiled her. She relied on the decision in serapio Tinkamarirwe v. uganda, Suprme court criminar Appeal No 27 of 1989, where it was held that, not every inconsistency 25

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will result in a witness' testimony being rejected. It is only the grave inconsistencies, unless satisfactorily explained, that result in rejection of the evidence.

She finally submitted that the trial judge properly evaluated the evidence and came to the finding that the Appellant was guilty and $\mathsf{S}$ convicted him. She prayed that this ground of the appeal fails.

# **Resolution of Ground 2**

It is a settled principle of law that minor inconsistencies, unless they point to deliberate untruthfulness on the part of prosecution witnesses, should be ignored and that major ones which go to the root of the case, should be resolved in favour of the accused. (See Alfred Tajar v. Uganda, EACA Criminal Appeal No. 167 of 1969)

Counsel for the Appellant challenged the evidence adduced by the prosecution on the basis of four inconsistencies and/or contradictions in the evidence adduced by the prosecution, as follows:

- The manner in which the indictment was framed led to the $i)$ inference that the date on which the Appellant is alleged to have committed the offence was excluded, implying that he had an alibi; - The evidence adduced through Iraguha Christine (PW7) 20 ii) contradicted the testimony of the victim about whether or not she got permission to leave the school and go to hospital and led to the inference that she did not leave the school on that day. - There were inconsistencies in the evidence about the age of the 25 iii) victim which meant the prosecution did not prove that she was below the age of 14 years contrary to the provisions of section 129 $(4)$ (a) of the PCA

Crossillar The evidence on the record did not prove that the Appellant was $iv$ a person in authority over the victim.

We addressed the alleged contradictions or inconsistencies as Issues under this ground of appeal, in the order that we framed them.

Issue 1 $\mathsf{S}$

With regard to the complaint that the manner in which the Indictment was framed excluded the date on which the offence is alleged to have been committed, we are of the view that it would not amount to an inconsistency or contradiction in the evidence adduced by the prosecution. The complaint was therefore misplaced by counsel in her submissions under the 2<sup>nd</sup> ground of appeal.

Nonetheless, in order not to prejudice the Appellant, we dealt with the complaint. First of all, we observed that the Appellant's Advocate at the trial did not object to the manner in which the Indictment was framed. In that regard, section 50 (1) of the TIA provides as follows:

# 50. Orders for alteration of indictment.

(1) Every objection to an indictment for any formal defect on the face of the indictment shall be taken immediately after the indictment has been read over to the accused person and not later.

- It is rather late in the day to challenge the Indictment for the Appellant 20 was already tried and convicted on its basis. However, we still examined the manner in which it was framed in order to ensure that reliance on it did not fall under the circumstances stated in section 139 (1) of the TIA, which provides that: - 25

(1) Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order

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# judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.

Pursuant to this provision therefore, it had to be established whether

the manner in which it was framed occasioned a miscarriage of justice 5 to the appellant.

The Indictment, which was at page 112 and 113 of the Record, was framed as follows:

### STATEMENT OF OFFENCE

AGGRAVATED DEFILEMENT C/S 129 (3), 4 (a) AND (c) OF THE 10 PENAL CODE ACT.

## PARTICULARS OF OFFENCE

#### HABYAKALE WILSON BETWEEN THE YEAR 2019 AND FEBRUARY 2022, AT CHUHO VILLAGE, GASIZA PARISH, NYAKABANDE SUB COUNTY IN THE KISORO DISTRICT BEING A PERSON 15 $\mathbf{IN}$ AUTHORITY OVER (TD) AS A HEADMASTER AT CHUHO PRIMARY SCHOOL UNLAWFULLY PERFOREMED A SEXUAL ACT WITH (TD) A GIRL BELOW THE AGE OF 14 YEARS.

We further perused the summary of the case, at page 115 of the Record.

- It was evident from it that the date that was targeted by the prosecution, 20 and in respect of which most of the evidence was adduced was the 28<sup>th</sup> February 2022. It was largely in respect of TD's activities on that day that she testified. That date, without a doubt, fell between the year 2019 and February 2022. - However, we also observed that in the un numbered paragraph after 25 paragraph 4 of the Summary of the case, it was stated thus:

"That this was the second time for the accused Wilson to have forceful sexual intercourse with the victim. Sometime in 2019 while the victim was a pupil at Chuho Primary School, the accused sent Daphine to his home for keys and ended up forcing her into sex although the matter was never reported to authorities then. The accused was the head teacher to the victim at that time and this forced the victim to change school(s)."

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With regard to that statement in the summary of the case, at page 120 of the Record, TD testified as follows:

"The Accused had also defiled me when I was in Primary Six. It was at him home, and I was a pupil at CHUHO Primary School. There was no one at his home at the time. He sent me to take keys to his home that the wife wanted them, I found there nobody. He followed me, defiled me, gave me shs. $20,000/$ =. I bought books, a pen and stockings with the money. I told my friend who kept quiet, nothing happened. She is JUSTINE. I do not know where she is now."

TD was not directly cross examined about this statement. But during 10 cross examination, at page 129 of the Record, she explained why she left Chuho Primary School as follows:

I left CHUHO Primary School since Covid started in 2019. I left CHUHO in Primary Six in 2019 when the $1^{st}$ term was about to end. My last report was in December 2020 (PEX4). I left the school because the Head master used me. I have not sat for primary seven. I was once in BUSAMBA Primary School when primary sevens were allowed back to school in 2020.

The Appellant did not say anything to controvert TD's testimony about the incident in 2019. In fact, what he stated in his testimony in chief, 20 at page 155 of the Record, seemed to support TD's behaviour, that of a child that has been abused, and it was as follows:

> "DAPHINE had 2 siblings in the school before. She was brought to my attention by the former Director of CBC, I have no sexual relations with her. When we closed for 2019, she had been absenting herself. In 2020 she did report after the $1^{st}$ week unlike other pupils. I told her to call her parents."

It then becomes clear that the prosecution targeted this incident that had no specific date but was stated to have taken place in 2019 and in respect of which the victim testified. The Appellant also admitted that at the time, TD was still a pupil at Chuho Primary School.

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This also resolves the contention in sub issue 3, that the prosecution failed to prove that the Appellant was a person in authority over the victim. Though the offence on 28<sup>th</sup> February 2022 was committed when she had already left the school, the defilement that took place in 2019 was during the time when she was still a pupil at Chuho Primary School.

Section 22 of the TIA, at the time that the Indictment was framed, provided as follows:

## 22. Contents of indictment.

$\mathsf{S}$

- Every indictment shall contain, and shall be sufficient if it 10 contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. - In view of this provision, we could not fault the Indictment for it had 15 sufficient information for the Appellant to understand the offence with which he was indicted. There was therefore no miscarriage of justice occasioned to the Appellant on account of the manner in which the Indictment was framed. - We are further unable to fault the manner in which the Indictment was 20 framed for it was neither an inconsistency nor a contradiction in the evidence adduced by the prosecution. Though it did not have specific dates on which the offence was committed, the evidence that was adduced fell within the time frame that was stated in it. - We therefore do not agree with Ms Namara's submission that the 25 manner in which the Indictment was framed led to the inference that the Appellant had an alibi. Had she intended to address the court on the defence of alibi, she ought to have succinctly framed it in the memorandum of appeal. In the absence of a clear ground in that regard

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we are unable to address the defence of alibi in this appeal because neither counsel for the Appellant nor the Respondent addressed it in a manner befitting of the attention of the court as a ground of appeal.

### Issue 2

As to whether the testimony of Iraguha (PW7) contradicted that of TD $\mathsf{S}$ with regard to whether she got permission to leave the school and go to hospital and whether she did go to hospital at all, at pages 123-124 of the Record, TD testified that she got permission to go to hospital from the teacher on duty, Madam Christine. She added that she was the head teacher. She further stated that she went to the Hospital with the 10 permission chit from the teacher on duty.

However, at page 125, she states that she went to the Compassion Office in Kisoro town for a referral letter. That it was given to her by Aunt Peace, the Director. She explained that because it was late, the latter

- advised her not to go to the hospital but to do so the following day, 29<sup>th</sup> 15 February 2020. But she did not go the following day. At page 125 of the Record, she stated that when she left the Compassion Office, she went to Aunt Hope's House. She explained that she had gone to Compassion office and she had a problem with her stomach she asked her for books - but Aunt Hope said she would bring the books to school. She thus went 20 back to school. She then went on to state thus:

At school I slept. On Tuesday (01/03/2022) I went to hospital, I was treated, returned to school. I slept after taking the tablets, I became dizzy. I told the matron called KYABII. I slept.

We observed that at page 137 of the Record, PW7 testified that she gave 25 permission to TD to go to Mutolere Hospital but she sent her to the Teacher on Duty, Milere Fred, to give her written permission for it was

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required of the school by Compassion, TD's sponsor. She further testified as follows, and it is useful to quote that verbatim:

"I later heard about her on $01/03/2022$ . She told me that she was to go to Hospital that day and wanted permission. I allowed her to go early to the Hospital. She left. On 02/03/2022 l learnt from the matron at 8:00 am that she had taken a lot of drugs saying she is pregnant."

It is thus clear from the evidence on the record that TD got permission from the head teacher to go to the Hospital on 28<sup>th</sup> February 2022, when she got a chit from Milere Fred, the teacher on duty, but she did not go to hospital on that day. She instead went to Compassion and got further 10 permission. Thereafter, she went back to school because Aunt Hope, the Director at Compassion advised her that it was too late for her to go to hospital. She did not go the following day, the 29<sup>th</sup> February 2022, either. But on 1<sup>st</sup> March 2022, she went back to the head teacher to seek permission to go to hospital. She did go there on that day, as it is 15 shown in **PEX6**, Treatment Notes from St Francis Hospital Mutolere. The question then arises as to when she met the Appellant.

In that regard, at page 124 of the Record, TD testified about what happened on the 28<sup>th</sup> February 2022 after she got permission to go to hospital. She stated that as she was going to Hospital, at around break $20$ time, she met the Appellant who stopped and talked to her. It rained and the Appellant invited her to seek shelter in his home. That there was no one in the home, except the Appellant. He switched on the television and gave her soda while she sat in the sitting room. He left her in the house and said he was going to the school, and she should 25 stay and wait for the rain to stop. TD's testimony after that was as follows:

> "When he returned I was still in the sitting room. It was after about 30 minutes. He sat beside me, started touching me on the breasts. I told him to stop.

> > 13

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$\mathsf{S}$

He held me, slept on top of me I did not make an alarm because nobody was there. When he finished, he gave me Shs. 5,000/- and a packet of doughnuts.

I was in the school uniform; he directed his penis in my vagina. I had knickers. which he removed. I went away with a Boda using the money *he gave me. I went with my knickers.*

I went to the Compassion Office in Kisoro town for a referral letter to the Hospital. It was given to me by Aunt Peace, the Director."

In view of this testimony, we have no doubt at all in our minds that TD set off to go to Compassion to get a referral letter after she got a chit 10 from the teacher on duty, following permission from the head teacher, PW7. It was on the way to the Compassion Office that she met the Appellant who took advantage of the rain to divert her to his house, entertain her and then have unlawful sexual intercourse with her.

The contradictions about whether she got written permission from the 15 head teacher, PW7 or another person, and whether such permission was required by Compassion paled in the face of the testimony of TD about the conduct of the Appellant. We therefore, as the trial judge did, find that any inconsistencies or contradictions in the testimony of the $20$

two witnesses were minor. They did not point to untruthfulness on the part of either of them and they could safely be ignored. The trial Judge therefore made no error at all when he ignored them.

### Issue 3

$\mathsf{S}$

With regard to the age of the victim, when she testified on 12<sup>th</sup> April 2022, she stated that she was 14 years old. On 3<sup>rd</sup> March 2022, the $25$ examining doctor assessed her age by dentition as 14 years, but that is never the exact age of the person examined. This court in **Ahimbisibwe**

Duncan v. Uganda, Criminal Appeal No 011 of 2020, (unreported

Cross Gul relied on an expert opinion about dentition from an article by B. S. Manjunatha and Nishit K. Soni<sup>1</sup> where they stated that:

$\mathsf{S}$

"The developing dentition is used to assess maturity and estimate the age in many disciplines including anthropology, archaeology, forensic science, paediatric dentistry and orthodontics. There is evidence that dental development is less affected than skeletal development by malnutrition and hormonal disorders. There are two methods of dental age assessment, radiographically and by clinically visualization (sic) of eruption of teeth. The clinical method to assess dental age is based on the emergence of teeth in the mouth. This method is more suitable since it does not require any special equipment, expertise and is more economical. Tooth formation is the best choice for estimating the age as variations are less as compared to other development factors. Eruption of teeth is one of the changes observed easily among the various dynamic changes that occur from the formation of teeth to the final shedding of teeth. The times of eruption of teeth are fairly constant and this can be made use of in ascertaining the average age of eruption of the tooth. Assessment of age of an individual by examination of teeth is one of the accepted methods of age determination.

In order to conclusively prove the age of the victim, the prosecution 20 produced TB's birth certificate, PEX2, which showed that she was born on 18<sup>th</sup> July 2008. That means she would have made exactly 14 years on that day in 2022. She was therefore on the basis of the birth certificate, 13 years and 7 months old at the time the incident occurred and there was an inconsistency in the evidence adduced by the 25 prosecution.

However, we do not agree with the submission that the inconsistency between the examining doctor's medical assessment of the victim and her own testimony about it was a major one, or that it was calculated to deceive the court. We say so because there is ample authority on proof of the age of a child in this jurisdiction. The Kenya Court of Appeal

Choon Liken

<sup>&</sup>lt;sup>1</sup> Examination of age from development and eruption of teeth; Journal of Forensic Dental Science, 2014 May-August: 6(2); 73-76. Retrieved from https://www.ncbi.nlm.gov/pmc/articles/PMC4 130020/#sec1-3title on 23rd September 2023.

relied on it in Mwalango Chichoro Mwanjembe v. Republic [2016] **eKLR,** at page 3, where it was stated that:

"The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if $\mathsf{S}$ the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R, Cr. Appeal No.19 of 2014 and Omar Uche v R, Cr. App. 10 No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim. Appeal No. 2 of 2000. We think 15 that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim's age, it has to be credible and reliable."

We therefore find that the trial Judge made no error when he relied on the evidence adduced by the prosecution to come to the decision that the victim was below the age of 14 years.

Ground 2 of the appeal therefore also fails.

## Ground 3

The complaint in ground 3 was that the sentence that was imposed upon the Appellant was harsh and excessive in the circumstances of the case and thereby occasioned a miscarriage of justice.

## **Submissions of Counsel**

Ms Namara correctly submitted that an appellate court will not interfere with the sentence imposed by the trial court unless it is shown that it is illegal, or founded on a wrong principle of law, or where it is shown that the court failed to take into account an important principle, or that

it imposed a sentence which is harsh and manifestly excessive in the

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circumstances. She referred to Kiwalabye Bernard v. Uganda, Supreme Court Crlminal Appeal No. 148 of 2OO1 to support her submission.

5 Counsel then went on to submit that in Kizito Senkula v. Uganda I2OO2I UGSC 36, the Supreme Court held that courts ought to take into consideration sentences imposed in previous cases while sentencing. She referred to the decision in Aharikundira yustina v. Uganda, Supreme Court Criminal Appeal No 27 of 2OtS; [2O181 UGSC 4g and Anguyo Silva v. Uganda, Court of Appeal Crimlnal Appeal No. O3g of 2OL4; I2O2L| UGSC 3, where it was held that the sentences approved by the court in previous cases of aggravated defilement range between 10

11 and 15 years.

counsel then submitted that the triat Judge did not state whether he considered any aggravating factors. Instead he went on to hand down a sentence of 18 years' imprisonment to the Appellant which, in her opinion was harsh and excessive since it as outside the range of sentences this court handed down in the cases she referred to. She did not address the aspect of illegality that was pleaded in this ground so we understood it to have been abandoned and did not address it either. 15

- She prayed that court takes into consideration sentences imposed in similar offences for there is need for uniformity and consistency in sentencing. Further, that the court finds that the sentence that was imposed was harsh a,d excessive and accordingly sets its aside and resentences the Appellant. 20 - In reply, Ms Nabagala submitted that counsel for the Appellant cited cases with lesser sentence to make a case for reduction of the Appellant's sentence. She prayed that before we reach our decision on this ground we do consider the circumstances in which the crime was 25

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committed. She further pointed out that perfect uniformity sentencing is not always possible. ln

Counsel then referred court to the decision in Wasaija AIex v. Uganda, Court ofAppeal Crlminal Appeal No. 482 of 201-7; l2024l UGCA 94 where this court upheld a sentence of 25 years for the offence of aggravated defilement. she also drew the attention of the court to Mugerwa Paul v. Uganda, Court ofAppeel Criminal Appeal No. 461 of 2OL6; 12o231 UGCA 183, where the Appellant who was in <sup>a</sup> relationship with the victim's mother defiled her and was sentenced to 26 years' imprisonment. She further referred to Senoga Frank v.

- Uganda, Court of Appeal Criminal Appeal No OZ4 of 2O1rO, I2O2L| UGCA 18O, where the Appetlant, who was an uncle to the victim and her guardian, defiled her and was sentenced to 2g years and four months'imprisonment. 10 - counsel finally submitted that the sentence that was imposed on the Appellant was lenient. She prayed that we enhance it to 30 years, imprisonment and that the appeal as a whole should fail. 15

## Resolution of Ground 3

It is a well settled principle that this court is not to interfere with the 20 sentence imposed by the trial court exercising its discretion unless the sentence is illegal or this court is convinced that the trial court did not consider an important matter or circumstance which ought to be considered when passing sentence. Further, that the court may interfere if it is shown that the sentence was manifestly excessive or so low as to 2s amount to an injustice. (See Livingstone Kakooza v. uganda; sccA No. 17 of 1993; It994l UGSC 2z)

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The Appellant's complaint is that the trial judge did not state that he considered any aggravating factors before he arrived at his sentence. He simply handed down a harsh and excessive sentence upon him. It is therefore pertinent to lay down the sentencing ruling of the trial Judge which was at page 176 of the Record and as follows:

"Convict sentenced to 18 years, less the 3 months spent on remand. he shall serve 17 years, 9 months from 04/07/2022."

It is apparent from the ruling that the trial Judge did not state that he considered the aggravating factors; neither did he show that he considered them and weighed them against the mitigating factors that $10$ were advanced in allocutus. We accept the submission that this was an error on his part. The trial judge ought to have considered both the mitigating and aggravating factors, as it is required by paragraph 21 of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, 2013. 15

However, that was not the point that the appellant appealed against with regard to his sentence. His complaint was that the sentence was harsh and excessive in the circumstances of the case, and what amounts to a sentence that is harsh and excessive was described in Aharikundira **Yusitina** (supra), as follows:

"There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence imposed exceeds the permissible *range or sentence variation.*

*{Emphasis added}*

Therefore, in order for this court to intervene in the present appeal, counsel for the Appellant had to show that the sentence of 17 years and 30

Cross Shill

$\mathsf{S}$

9 months that was imposed in this case, where the Appellant was indicted for aggravated defilement under section 129 (3) and (4) (a) and (c) of the Penal Code Act, was out of the range of sentences imposed for that offence in other cases by this court and the Supreme Court.

Counsel for the Appellant referred to **Anguyo Silva v. Uganda** (supra) $\mathsf{S}$ where it was held that the sentences approved by the court in previous cases of aggravated defilement were in the range of 11 and 15 years' imprisonment. The statement is not correct because the facts in Anguyo's case were different from those in the present appeal. In coming to its decision in Anguyo's case, the court while reviewing 10 previous sentences for the offence of aggravated defilement where the Appellant was not only the guardian of the victims in that he cohabited with their mother, observed thus:

In Tiboruhanga Emmanuel vs. Uganda, Court of Appeal Criminal Appeal No. 0655 of 2014, this Court stated that the sentences approved by this Court in previous aggravated defilement cases, without additional aggravating factors, range between 11 years to 15 years. The Court considered the fact that the appellant was HIV positive as an additional aggravating factor in that he had, by committing a sexual act on the victim while HIV positive, exposed her to the risk of contracting HIV/AIDS. The Court imposed a sentence of 25 years' imprisonment.

## *[Emphasis added]*

It is evident from the excerpt above that the range that the court referred to was in respect of cases of aggravated defilement, "without additional aggravating factors." **Anguyo's case** had additional aggravating factors 25 and as a result, he was sentenced to 21 years and 28 days' imprisonment.

Given that the facts in this case raised an additional factor that the Appellant was in a position of authority, counsel for the Respondent

commended sentences to the court that ranged between 25 and 28 30 years' imprisonment for aggravated defilement, where the Appellant was

Chean City

related to the victim and thus in a position of authority over her. we see no reason to review further sentences in this case, in addition to what was cited by counsel for the Respondent, which show that the sentence imposed was on the lower side of the range of sentences. She thus submitted that this court should enhance the sentence but we see no reason to do so.

we are of the view that the sentence that was imposed by the trial court, though rather lenient, should not be disturbed and we uphold it. The appeal on the whole was unsuccessful and it is hereby dismissed. The Appellant shall continue to serve the sentence of 17 years and nine (9)

months' imprisonment that was imposed upon him by the trial Judge. It is so ordered.

Dated this day of 2024.

( 15 Irene Mulyago a

JUSTICE OF APPEAL

Eva ma Luswata JUSTICE OF APPEAL

t

Christopher Gashirabake JUSTICE OF APPEAL 25