Katuramu v Uganda (Criminal Appeal 114 of 2016) [2024] UGCA 245 (4 September 2024)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA [Coram: Eva Luswata, Oscar Kihika, and Asa Mugenyl' JJA] CRIMINAL APPEAL 114 0F 2016

[Appeal from the Judgement of High Court sitting at Mbarara in Criminal HCT-O5-CR-SC-68 of 2012 by Justice David Matovu delivered on 14th April 20131

# KATURAMU DAVID ::::::::::::::3::::::::::::::::::::3:33::3:3:::::: APPELLANT VERSUS UGANDA :::::::r::::::::::::::::3::::::::::li::3:3:::3333::::::::::::::::: RESPONDENT

### JUDGMENT OF THE COURT

### 1. INTRODUCTION

This is an appeal against the sentence of the appellant to 44 years of imprisonment for aggravated defilement contrary to S' 129(3) and (4) of the Penal Code imposed by the High Court, Justice David Matovu. 20

### 2- BACKGROUND

On 27th June 20 11, the appellant defiled one Susan Atukwasa aged 4 years. The appellant had the Human Immune Deficiency virus (HIV). The victim was coming home from school when the appellant met and defiled her. The appellant was arrested and charged with aggravated defilement. He was convicted artd sentenced to imprisonment of 44 years.

### 3. GROUNDS OF APPEAL

1. The learned judge erred in law and fact when he imposed a sentence of 44 years of imprisonment which was manifestly harsh and excessive in the circumstances thus causing a miscarriage of justice.

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4. rssuEs

l. Whether the sentence of 44 years of imprisonment on the appellant was harsh and excessive?

### Representation

At the hearing on 3rd September 2024, thre appellant was represented by Ms' Caroline Ninsiima on state brief while the respondent was represented by Ms' Josephine Nanyonga, Senior State Attorney'

#### SUBMISSIONS OF PARTIES

### 5. APPELLANTS'SUBMISSIONS

#### 20

The appellant cited Ssekifol eko Yudah and others u lJgonda SCCA 33 of 2Ol4 where the Supreme court stated that

"an appropriate sentence is a matter for the discretion of the sentencing judge' Each case presents its own facts upon which ajudge exercises his discretion. It is the practice that as the appellant court, this court will not normally interfere urith the discretion ofthe sentencingjudge unless the sentence is illegal or unless the court is satished that the sentence imposed by the trial judge was manifestly so excessive so as to amount to an injustice."

30 The appellant cited s. 11 of the Judicature Act and contended that this court has power to give an appropriate sentence of its own. The appellant submitted that he was 18 years of age at the time of the crime' He was a young man who needed a second chance. Sentencing him to 44 years when he had been on remand for 6 years was manifestly harsh.

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5 The appellant submitted that the trial judge did not consider any decided cases of a similar nature. Under Article 21(1) of the constitution of Uganda, every person is equal before the law. Guideline 6(c) of the Sentencing Guideline is to the effect that;

. Everycourtshallwhensentencinganoffendertakeintoaccounttheneedfor consistencywithappropriatesentencinglevelsandotherareasofdealingwith offenders in respect of similar offences submitted in similar circumstances.'

The appellant cited Aharukundira Yusitina u tlganda criminal Appeal 27 of 2015 where it held that it is the duty of court when dealing with appeals regarding sentences to ensure consistency with cases of a similar nature. consistency is a vital principle of the sentencing regime.

The appellant cited Gennan Benjamin u uganda criminal Appeal 742 of 2olo where the appellant dehled a child aged 5 years. The court of appeal substituted the sentence of 29 years with that of 15 years. In .lvinsima Gilbert u uganda criminal Appeal 0 18O of 2Ol2 the appellant was convicted of aggravated defilement ofa child of8 years. His sentence of 30 years was reduced to l5 years on appeal. ln Arinaitwe Julius u uganda criminal Appeal 0389 of 2015 the court of Appeal reduced a sentence of 16 years to 15 years. The appellant contended that the sentence of 44 years was higher than those in the above cases' The appellant prayed that the court reduces his sentence to 13 years'

#### 6. RESPONDENT'S SUBMISSION

The respondent submitted that sentencing is at the discretion of the trial court and an appellate court can only interfere with the discretion 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 or where the court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong principle. 30 35

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5 The respondent cited Muhtuezi Bgron u LJganda Criminal Appeal 198 of 2O13 which cited James s/o Yorum u R (1950) 18 EACA 147 where it was stated that.

> "lt may be that had this court been trying the appellant it might have imposed a less severe sentence but that by itself is not a ground for interference and this court will not ordinarily interfere with the discretion of a trial judge in the matter of sentence. Unless it is evident that the judge acted on some w'rong principle or over looked some materia.l factor."

The respondent submitted that the appellant was spared the maximum sentence of death and given 44 years at the discretion of the judge. It submitted further that the appellant has failed to demonstrate how a sentence that is less than the maximum sentence prescribed by law is too harsh to amount to an injustice. It submitted that the sentencing guidelines set the range for aggravated defilement. The respondent also cited Aharikundira Yustina u uganda criminal Appeal 27 of 2015 where the 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 "manifestly excessive." An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation. Emphasis added'"

- The respondent further cited Kyalimpa Eduard v (Jganda Criminal Appeal 10 of 1995 which cited R u Hauilland (1983) 5 Cr. App R(s) 109 where it is 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'" 25 - 30

The respondent submitted that it is mindful of the principle of consistency but no two cases are alike. It invited court to be guided by the following cases. In Bonyo Abdul u LJganda SCCA 7 of 2011 the Supreme Court confirmed a life imprisonment for aggravated dehlement of a 14-year-o1d victim who had been exposed to HIV infection. ln Bachtua Benon u uganda Appeal 869 of 2014 the victim was 10 years old, a sentence of life imprisonment was confirmed. The court pronounced that exposing the victim to HIV was an extra deterring factor. 4lPaBe

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- 5 ln Kaserebangi James u IJganda sccA 10 of 2074 the sentence of life imprisonment was confirme d. ln Bengwanira Emmanuel u tJganda CACA 012O of 2018 the court sentenced the accused to 32 years. ln Abingoma Defortzi u IJgand.a CACA 0284 of 2016 the court of appeal upheld a sentence of 40 years for defiling a victim of 10 years highlighting that the appellant was HIV positive. - ln ssegiinya Fulgensio u uganda criminal Appeal o549 of 2016, a sentence of 42 years for aggravated dehlement of a 2-year-old was confirmed' 10

#### DETERMINATION

- on 27rh June 2011, the appellant defiled one susan Atukwasa aged 4 years . The appellant had the Human Immune Deficiency virus (HIV). He was arrested and charged with aggravated defilement. He was convicted and sentenced to imprisonment of 44 Years. 15 - 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 Karauei ulJganda CACA 110 of 20O8 it was held that sentencing is at the discretion of the trial judge . In Kiualabge Bernard u uganda criminal Appeal 143 of 2001 the 20 - supreme court held that it is trite law that the appellant court is not to interfere with the sentence imposed by a trial 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 - to be considered while passing sentence or where the sentence is imposed on wrong principle. 30

Aggravated defilement carries a maximum sentence of death. The constitution (Sentencing Guidelines for courts of Judicature) (Practice) Directions, 2o 12 Guideline 19 in the 3'd Schedule Part 1 provides a starting point of 35 years and above. Guideline 6(c) of the Sentencing Guideline provides that; 5lPage 35

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- 5 "Every court shall when sentencing an offender take into account the need for consistency with appropriate sentencing levels and other areas of dealing with offenders in respect of sinilar offences submitted in similar circumstances." - ln Bgaruhanga okot u IJganda CACA 078 of 2010 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 offence is committed. A 4-year-old child is an infant that needs protection from society. The appellant instead abused her. In Bonyo Abdul u lJganda sccA 7 of 2011, the Supreme court confirmed life imprisonment for aggravated defilement of a l4-year-old victim who was exposed to HIV infecti on. ln Bachtua Benon u Uganda cACA 869 of 2014, this court confirmed life imprisonment for aggravated defilement of a 10 year-old who was also exposed to HIV infection. ln Segiringa u Uganda Criminal Appeal 549 of 2016 [2004] UGCA 204 a sentence of 43 years was confirmed where the victim was 2 years old and the appellant was HIV positive' In okutairutoth Jakan u uganda criminal Appeal 3o7 of 2ol7 the appellant deftled a girl who was ascertained to be about 14 years of age. The appellant was sentenced to 14 years and 5 months. ln Angogtt Siluer u uganda CACA 38 of 2Ol4 the court set aside a sentence of 27 years of imprisonment for being harsh and imposed a sentence of 25 years of imprisonment on the appellant who defiled agirl of 7 years while he was HIV positive. ln Tutesigge Esau u uganda CACA 31 of 2018 the court found a sentence of 32 years imposed on the appellant excessive, set it aside and imposed a sentence of 25 years. The appellant in that casi was HIV and defiled a girl of 8 years. 10 15 20 - we shall take note of the aggravating and mitigating factors. The mitigating factor is that the appellant was a young man of 18 years at the time of the crime' The aggravating factors are that the appellant committed a heinous crime. The victim was 4 years old. She needed protection from monsters like the appellant' The appellant denied the charges. The appellant was HIV positive. He was exposing the child to HIV. When we weigh the aggravating factors with the mitigating factors, the former outweigh the latter. Though the aggravating factor outweigh 6lPage 30

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- the mitigating factors we consider the sentence of 44 years of imprisonment for aggravated defilement as too harsh and excessive. To arrive at this, we considered the cases stated above which were of a similar crime. There is need for consistency in sentencing accused persons who have committed the same crime. we sha\_ll set aside the sentence and issue a fresh one. The appellant was - a young man of 18 years. He was a first offender. He has chances of rehabilitation. However the girl he defiled was only 4 years. The appellant was HIV positive. Taking the said factor into consideration we shall reduce the sentence to 25 years of imprisonment to be served from the date of conviction' The appellant was charged on the 8th July 2011. He was convicted on 14th April 10 - 2016, The months spent on remand are 4 years 10 months and 7 days which should be deducted. The appellant should serve 20 years 1 month and 23 days from the date of conviction. 15

Dated at Mbarara this ... Lh day ....... 20 Luswata Justice of eal t5 U I Justice .4\*P"^t Dr. Asa ugen Justice of Appeal 30 2024

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