Kesunge v Uganda (Civil Appeal 310 of 2017) [2024] UGCA 184 (19 July 2024)

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA SITTING AT ARUA

*Coram: Kiryabwire, Mulyagonja & Luswata, JJA*

# CIVIL APPEAL NO. 310 OF 2017

**KESUNGE ORYEMA ::::::::::::::::::::::::::::::::::::**

#### VERSUS

UGANDA::::::::::::::::::::::::::::::::::: 10

### JUDGMENT OF THE COURT

## **Introduction**

The Appellant was indicted for the offence of aggravated defilement contrary to sections 129 (3) and (4) (a) and (b) of the Penal Code Act. On 15 10<sup>th</sup> July 2016 he was convicted and sentenced to 21 years and one months' imprisonment.

### **Background**

The facts that were accepted by the trial Judge were that on 29<sup>th</sup> August 2013 at around 8.00 pm, the victim whom we shall refer to in this 20 Judgment as Immaculate, a girl who was 9 years old, was asleep in her mother's hut. She was shocked out of her sleep and found the Appellant on top of her defiling her. She raised an alarm to which her mother, whom she left in the kitchen before she went to sleep, responded. The

mother found that Appellant running out of the hut but raised an alarm 25 to which neighbours responded. They arrested him while he was still in her compound.

Luna.<br>Ghih

A report was made to the police upon which both Immaculate and the Appellant were medically examined. It was established that Immaculate was subjected to sexual intercourse and that the Appellant was HIV positive. He was indicted, tried and convicted and sentenced to 21 years and one months' imprisonment. With leave of court under section 132 $(1)$ (b) of the Trial on Indictments Act, he appealed against sentence only on the following ground:

1. The learned trial Judge erred in law and fact when he sentenced the Appellant to 21 years and I months' imprisonment, which harsh and manifestly excessive the sentence was $\overline{in}$ circumstances of the case.

The Appellant proposed that the sentence be set aside and varied by this court. The respondent opposed the appeal.

# **Representation**

$\mathsf{S}$

$10$

At the hearing of the appeal on 21<sup>st</sup> November 2023, Mr Omia Patrick, 15 Chief State Attorney, represented the respondent while Ms Daisy Patience Bandaru represented the Appellant.

Both parties filed written submissions which they, with leave of court adopted as their final arguments in the appeal and the appeal was disposed of on that basis.

# **Submissions of Counsel**

In his submissions, Counsel for the Appellant referred to the statement that he made before the trial court before sentence. He then pointed out that in his sentencing ruling, at page 26 of the record of appeal, the trial

Judge observed that the victim was kidnapped with intent to subject 25 her to the unnatural lust of the convict, which is itself was another $\frac{1}{2}$ .

aggravating factor. He complained that there was no evidence at all on the record that Immaculate was kidnapped. That it was thus surprising that the trial Judge found that the victim was kidnapped and relied upon it as a further aggravating factor of the offence.

- Counsel went on to submit that it was not clear when the Appellant got $\mathsf{S}$ to know about his HIV status because there was no such evidence adduced before the trial court. That the sentence of 21 years and one month handed down by the trial Judge was in the circumstances of the case harsh and excessive. - 10 Counsel then referred court to several decided case where the courts considered the HIV status of an Appellant, such as **Dratia Saviour v. Uganda, Criminal Appeal No. 154 of 2011** where the Appellant, who was 33 years old and HIV positive, was sentenced to 20 years' imprisonment for aggravated defilement. He added that the court considered the fact that he was 33 years old, had family responsibilities 15 and required frequent treatment as mitigating factors before arriving at that sentence. He also referred us to the decisions in **Ederema Ivan v.** Uganda, Court of Appeal Criminal Appeal No. 554 of 2014 where the Appellant, who had knowledge that he was HIV positive, defiled a victim who got infected with the virus had his sentence of 20 years substituted 20 with a sentence of 18 years' imprisonment.

Counsel further referred to **Mwebaze Ivan v. Uganda, Court of Appeal Criminal Appeal No. 541 of 2015**, where the Appellant who was 29 years old defiled a child aged 9 years old and was sentenced to 32 years'

imprisonment. On appeal to this court, the sentence was substituted 25 with 17 years and after deducting the 2 years and 5 months spent on remand, he was sentenced to 14 years and 7 months' imprisonment.

Counsel further submitted that the appellate court will not interfere Counsel turther submitted $\frac{1}{2}$ with the sentence imposed by the trial court unless is it shown that the $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\$

trial court did not consider a material factor in the case, or has imposed a sentence which is harsh and manifestly excessive in the circumstances. He referred to Klzito Senkula v. Uganda, Supreme Court Criminal Appeal No 24 of 2OO1, to support his submissions. He then prayed that this court considers the sentence which was imposed in the case of Mwebaze Ivan (supra) where the Appellant knew he was HIV positive and defiled a 9-year-old girl. He prayed that the sentence of 2l years and one month be substituted with 13 years and 8 months, imprisonment.

In reply, counsel for the respondent emphasised the fact that the victim was traumatised by the assault upon her by the Appellant. She was left helpless and running around to the extent that she tried to hide in the bush. That the aggravating factors in the case clearly outweighed the mitigating factors and therefore called for a deterrent sentence. 10

With regard to the authorities cited by counsel for the Appellant, counsel submitted that no two cases can ever be the sarne as it was emphasised in Leo Byaruhanga v. Uganda, Supreme Court Crlminal Appeal No. 29 of L994. Counsel then referred to Bonyo Abdu v. Uganda, Supreme Court Criminal Appeal No. OO7 of 2Ol4 where a convict who was HIV positive and defiled a l4-vear-old girl had the sentence of life imprisonment imposed upon him sustained. He further referred to Kabazi Issa v. Uganda, Court of Appeal Criminal Appeal No. 268 of 2O15 where a sentence of 32 years' imprisonment was maintained against an Appellant who defiled two victims who were below the age of 14 years. Further, that in Balitwanimana Juma v. Uganda, Criminal Appeal No 198 of 2o19, a sentence of 30 years, imprisonment was upheld for an Appellant who defiled a 1S-year-old girl when he was HIV positive. 15 20 25

uJ<

Counsel then concluded that the violation of one child by a person who ought to have protected her but chose to abuse her put her at the risk of acquiring the HIV virus. That this calls for a deterrent sentence and the sentence imposed by the trial Judge ought to be upheld.

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

The principle that the appellate court will only interfere with the sentence imposed by the trial court, where it is illegal, founded upon a wrong legal principle or law, or is a result of the trial courts' failure to consider a material factor, or is harsh and manifestly excessive in the circumstances of the case is well settled. [See Kakooza v. Uganda [1994] UGSC 17, Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No 143 of 2001 and Bashir Ssali v. Uganda [2005] $\mathbf{UGSC} \ 21.]$

In the appeal now before us, the Appellant's only complaint about the 15 sentence seems to be that the trial Judge found that the Appellant abducted the victim whereas he did not. That this caused him to impose a higher sentence than he would have had he not included the alleged abduction as a further aggravating factor.

We observed that while sentencing the Appellant on the 10<sup>th</sup> July 2016. the trial Judge found and ruled, at page 29 and 30 of the record, that:

"Indeed, I observe that the victim was kidnapped with intent to subject her to the unnatural lust of the convict, which of itself is another aggravating factor. The victim was not only traumatized, and dehumanized but was exposed to the danger of contracting HIV. Although these circumstances did not create a life threatening situation. in the sense that death was not a very likely immediate consequence of the action such as would have justified the death penalty, they constitute a callous disregard of the victim's dignity, autonomy and inviolability of person and as such are sufficiently grave to warrant a deterrent custodial sentence. I have as well considered the disparity in age between the victim and the convict being seventeen years at the time of the offence

(the victim was 9 and the convict was 26 years old). He was also related to the victim by blood. The message should ring out loud and clear to the *convict that sexual abuse of this nature is totally unacceptable. It is for* those reasons that I have considered a starting point of thirty years' imprisonment.

$\overline{a}$

$\mathsf{S}$

From the earlier proposed term of twenty-five years' imprisonment, arrived at after consideration of the mitigating factors in favour of the convict, the convict having been charged in August 2013 and been in custody since then, I hereby take into account and set off three years and eleven months as the period the convict has already spent on remand. I *therefore sentence the accused to a term of imprisonment of twenty (21)* years and one $(1)$ month, to be served starting today. The convict is advised of his right to appeal against both conviction and sentence, within a period of fourteen days."

While it is true that the trial Judge erred when he stated that the victim was abducted and then subjected to sexual intercourse by the Appellant, we do not think that he considered it as a further aggravating factor while handing over the sentence to the Appellant. This is because,

the offence against the victim as stated in the indictment as contrary to 20 sections 129 $(3)$ , $(4)$ $(a)$ and $(b)$ of the Penal Code Act, which provide as follows:

> (3) Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

(4) The circumstances referred to in subsection (3) are as follows—

(a) where the person against whom the offence is committed is below the age of fourteen years;

(b) where the offender is infected with the Human Immunodeficiency Virus (HIV);

The Appellant could have also been charged with the felony under clause 4 (c) of the same provision which provides for situations where

June M.<br>Lun.<br>Luk

the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed, but he was not. This is because we observed that in her testimony, on page 8 of the record, Joyce Akumu (PW4), the mother of the victim testified that the Appellant was a son to her brother in law. He was 26 years old and lived in the same compound as the victim and at his age and position of responsibility he had authority over her.

Nonetheless, the Appellant's offence was aggravated by two factors. Immaculate was not only a child aged 9 years old but the Appellant was

- also HIV positive. Although counsel for the Appellant contended that it 10 was not clear on the record that the Appellant committed the offence well knowing that he was HIV positive, the medical examination report (**PEX2**) at page 40 of the record, clearly showed that he was examined and found to be HIV positive. The Appellant's only remaining grievance - is then that the sentence of 21 years and one months' imprisonment 15 was manifestly harsh and excessive in the circumstances of this case.

ln Kiwalabye Bernard v. Uganda, Supreme Court Criminal Appeal No. 143 of 2001, the Court spelt out the principles upon which an Appellant court may interfere with a sentence imposed by the trail court as follows:

"The appellate Court is not to interfere with the sentence imposed by the trial Court which has exercised its discretion on sentence, unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial Court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence, or where the sentence imposed is wrong in principle."

The Supreme court in Aharikundira Yustina v. Uganda [2018] UGSC 49 had occasion to consider what is meant by the expression "manifestly excessive" in circumstances were a sentence of death for the Iron.<br>hhl 30 offence of murder was challenged, and held thus:

"There is a high threshold to be met for an appellate court to interfere" 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 court further observed that:

"It is the duty of this court while dealing with appeals regarding 10 sentencing to ensure consistency with cases that have similar facts. *Consistency is a vital principle of a sentencing regime. It is deeply rooted* in the rule of law and requires that laws be applied with equality and *without unjustifiable differentiation.*"

- In the appeal now before us, counsel for the Appellant cited cases were 15 various custodial sentences were imposed upon accused person that were convicted of aggravated defilement and found to be HIV positive on the lower spectrum. Counsel for the respondent cited those on the higher spectrum. - However, since there is no wrong principle that has been brought to our 20 attention by Appellant, we are left to consider whether in view of the fact that the maximum sentence that can be imposed for the offence of aggravated defilement is death, the trial Judge imposed a sentence that was manifestly excessive in the circumstances of this case, after considering the decisions that were cited by counsel for both parties. 25

Having considered them, we are of the view that the sentence that was imposed was not out of range with sentences imposed for similar offences. The sentence of 21 years and one months' imprisonment was a legal sentence; it was neither manifestly excessive nor harsh in the circumstances of this case and we see no reason to disturb it.

Ikon.<br>Khlk

## Determination

In conclusion, this appeal fails and it is hereby dismissed. The Appellant shall continue to serve the sentence of 21 years and one months' imprisonment that was imposed upon him by the trial court.

It is so ordered. $\mathsf{S}$

Dated this $\bigcirc$ day of $\bigcirc$ 2024.

Geoffrey Kiryabwire **JUSTICE OF APPEAL**

Irene Mulyagonja 20 **JUSTICE OF APPEAL**

Eva K Luswata **JUSTICE OF APPEAL**