Kakuru v Uganda (Criminal Appeal 594 of 2015) [2024] UGCA 258 (4 September 2024)

Full Case Text

#### 5 THE LIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA Coram: Eva Luswata Oscar Klhika and Asa M en 1 JJ CRIMINAL APPEAL 594 OF 2015

(Arising from the judgment of High court criminal case 08 1 of 201 I delivered by David Matovu J. on 16th July 2O14 at Mbarara)

# KAKURU NICHOLAS ::::::3:!:3::::::::::::::::::::l::::::::::::::::: APPELLANT VERSUS

UGANDA ::::::::::::::::::33:;::::3:t::::::::::::::::::::::::::::::l:::::: RESPONDENT

#### JUDGMENT OF THE COURT

# 1. INTRODUCTION

20 This is an appeal against the sentence of the appellant to 40 years of imprisonment for the offence of aggravated defilement contrary to s. 129 of the Pena-l Code by David Matovu J. The appellant defiled a girl of 6 years'

# 2. BACKGROUND

on loth July 2010, the appellant defiled one Anita Kebicoori at Kashangura II cell, Ibanda district. The victim was 6 years old. The victim was following her mother who was heading home. The appellant grabbed her and whisked her to abush where he defiled her. Upon reaching home, when the mother realized that her daughter was not with her, she went back. she was able to flnd the appellant defiling the victim. She made an alarm and the appellant was arrested. The matter was reported to police. On completion of investigation, the appellant was charged with aggravated defilement. He denied the charges. Upon evaluation of the evidence ofthe prosecution and the defence, the appellant was convicted and sentenced to 40 years of imprisonment.

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# 3. GROUNDSOFAPPEAL

10 1. The learned judge erred in law and fact when he imposed on the appellant a sentence of 40 years of imprisonment which is manifestly harsh and excessive given the circumstances of the case, thereby occasioning a miscarriage of justice.

### 4. ISSUES

1. Whether the sentence meted on the accused was manifestly harsh and excessive?

#### Repreaentetlon

At the hearing of the appeal on 4th September 2024, the appellant was represented by Ms. Agnes Natukunda on state brief while the respondent was represented by Mr. Sam Oola, Senior Assistant Director of Public Prosecutions and Mr. Marvin Ninyesiga, State Attorney'

### SUBMISSIONS OF PARTIES

### 5. APPELLANT'S SUBMISSIONS.

- 30 The appellant submitted that it is the duty of the first appellate court to reappraise the evidence and draw inferences under Rule 3O(1)(a) of the Judicature (court of Appeal Rules) Directions. He submitted that it is the duty of the court to give its own consideration and views of the evidence' - 35 The appellant submitted that the sentence of 40 years of imprisonment was manifestly harsh and excessive because there was no mitigation. He stated he 2lPage

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- 5 was looking after three children after the death of his father. He is youthful. He is a hrst offender. The sentence did not afford him an opportunity for reform and to reconcile. The appellant further submitted that the 4 years he spent on remand was never deducted. - The appellant cited Kobusheshe v {Jganda Court of Appeal Criminal Appeal O11 of 2008 where the court upheld a sentence of 17 years imposed by the trial court on the appellant, a 3O-year-old man, who defiled a S-year-old girl. He also cited Ninsima u lJganda Court of Appeal 0180 of 2010 where the court set aside a sentence of 3o years imposed on the appellant and substituted it with a sentence 10 - of 15 years of imprisonment. He prayed that the sentence of 4o years be set aside and substituted with 15 years. He also prayed that the period of 4 years on remand should be deducted. 15

### 6. RTSPONDENT'S SUBMISSION

The respondent submitted that an appellate court will not interfere with the discretion of the sentencing judge unless the sentence is illegal or the sentence was manifestly excessive as to amount to an injustice.

- The respondent submitted that the sentencing guidelines set the range for aggravated defilement to start from 30 years to death' It contended that the appellant has failed to demonstrate how a sentence that is less than the maximum sentence prescribed by law is too harsh. The appellant was spared the death sentence and given 4O years at the discretion ofthejudge. The respondent cited. Aharikundira Yustina u Uganda Criminal Appeal 27 of 2015 where the 25 - 30 - Court stated.

'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

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5 "manifestly excessive." An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation. (Emphasis added)" The respondent contended that the appellant did not discuss the manifested harshness ofthe 40 years in comparison to the death penalty.

10 The respondent further cited Kaalimpa Eduard u IJganda criminal Appeal 10 of 1995which cited with approval R u Hauilland (1983) 5 Cr. App R(s) 109 where it was stated that

"lt is the practice that as an appellate court, this court will not normally interfere with the discretion of the trial judge unless court is satisfied that the sentence imposed by the trial judge was manifestly so excess as to amount to an injustice'' It reiterated that the appellant has failed to demonstrate the harshness of the sentence of 40 years.

The respondent contended that much as consistency is a vital principle in sentencing, it is not about casting a stone into oblivion. No two cases are alike. It invited court to be guided by ssegiinga Fulugensio u lJganda criminal Appeal 0549 of 2016 where a sentence of 43 years for the defilement of a 2-year-old was confirmed. The court stated that, 20

"we take keen cognizance of the fact that the appellant was a youthful man who defiled a two year old child. A two year old child is basically helpless and needs care and protection but instead the appellant defiled her."

It cited the following cases. In Bongo Abdul u uganda sccA 7 of 2Ol1 the supreme court conlirmed a life imprisonment for aggravated defilement of a 74' year-old victim who had been exposed to HIV infection. In Bachuta Benon u Uganda Appeal 869 of 2074 the victim was l0 years, a sentence of life imprisonment was confirmed. The court pronounced that exposing the victim to HIV was ajl extra deterring factor. In Kaserebanyi James u uganda SCCA 1O of 2014 the sentence of life imprisonment was conlirmed. lrr Bengwanira Emmanuel utJganda CACA O12O of 2Ol8 the court sentenced the accused to 32 years' In Abingoma Defouzi u [Jganda CACA 0284 of 2016 the Court of Appeal upheld a 30 35

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sentence of 40 years for defiling a victim of 10 years, highlighting that the appellant was HIV positive. 5

The respondent submitted that the trial judge considered the period the appellant spent on remard. It quoted a passage of the sentence which stated,

"The convict is hereby sentenced to 40 years of imprisonment (the period he has been in detention has been considered in the sentence. Emphasis added (p. 12 of the judgment)."

The respondent concluded that the trial court discharged its constitutional duty and cannot be faulted for applying the law as it is.

### 7. APPELLANT'S SUBMISSIONS IN REJOINDER

In rejoinder, the appellant cited Mbunga Godfrey u (Jganda Criminal Appeal 4 of 2011 which emphasized the need to maintain consistency while sentencing persons convicted of similar offences. He stated that he has already raised several cases in their submissions where the Sentences were reduced to 17 and 15years. He submitted that the appellate court has powers to interfere with the discretion of the trial judge where the sentence passed is manifestly harsh and illegal according to the circumstances.

### 8. DETERI\IINATION

The appellant was convicted for aggravated defilement of a 6-year-old girl and sentenced to 40 years of imprisonment. The only ground of appea'l was on the harshness of the sentence. The appellant did not raise a ground on the period the appellant spent on remand. Therefore, we shall stick to the only ground raised by the appellant. 30

35 It is trite law that sentence is at the discretion of the trial judge. An appellate court will only interfere with the sentence, if it is evident that the trial judge acted on a wrong principle or overlooked some material fact. In Kobusheshe Karaueri 5lPage

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- 5 v uganda CACA 110 of 20o8 it was held that sentencing is at the discretion of the trial judge . ln Kiualabge Bernord u Uganda Criminal Appeal 143 of 2001 the supreme court held that it is trite law that the appellant court is not to interfere with the sentence imposed by a tria-l court which has exercised its discretion unless the discretion is such that it results in the sentence imposed being manifestly excessive or low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought 10 - to be considered while passing sentence or where the sentence is imposed on wrong principle. - one way of hnding whether a sentence is harsh is by looking at court decisions in respect of sentencing of the same offence. A court that does not consider similar decisions of the same offence may impose a sentence on a wrong principle. Guideline 6(c) of the Sentencing Guideline provides that, 15

"Every court shall when sentencing an offender should take into account the need for consistency with appropriate sentencing levels and other areas of dealing with offenders in respect of similar offences submitted in similar circumstances'"

ln Bgaruhanga Okot u uganda CACA 078 of 2Ol0 it was held that the court is bound to follow the principle of parity and consistency while sentencing, bearing in mind the circumstances under which the offences were committed. ln German Benjamin u IJganda Criminal Appeal 142 of 2OlO the appellant defiled a S-year-

- old girl. His sentence was reduced from 20 to 15 years. In lVinsiima Gilbert u tJganda criminal Appeal 18o of 201o the appellant was convicted of defiled an 8-year-old girl. His sentence was reduced from 30 to 15 years. ln Ainatiaute u uganda Criminal 0389 of 2015 the Court of Appeal reduced the sentence from 25 - 16 to 15 years. In those cases, the accused were youthful. 30

In this case, the appellant was also a youth. He was 21 years at the time of the crime. When we compare the sentence imposed on him with those in the above cases, we note that the sentence on the appellant was harsh and excessive. Though the respondent cited cases where the sentences were life imprisonment

and above 40 years, it seems the tide has changed. The sentences swing between 6lPage

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- 5 those that are high and those that are low. This depends on the circumstance of the case. Having stated that the accused was a youth and is likely to reform we irnd the sentence of 4o years harsh and excessive. we therefore set is aside. we note that the appellant was convicted after a full trial and not on a plea of guilt' Therefore, we shall sentence him to 18 years. Article 23(8) of the constitution of - Uganda provides that 10

"Whereapersonisconvictedandsentencedtoatermofimprisonmentforan offence, any period he or she spends in lawful custody in respect of the offence beforecompletionofhisorhertrialshallbetakenintoaccountinimposingthe term of imPrisonment.'

Theappellantwaschargedon20thJuly20lo'Hewasconvictedonl6sJuly 2014. Tne appellant served 3 years 11 months and 26 days on remand' The said period spent on remand shall be deducted from the sentence' The appellant will serve 14 years 10 months and 4 days from the date of conviction' We so order' 15

20 Dated at Kampala thi" ../+f . dav ...'. 2024

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