Kwizera v Uganda (Criminal Appeal 195 of 2014) [2024] UGCA 246 (3 September 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA Coram: Eva K. Kihika n CRIMINAL APPEAL NO. O 195 of2O14

[Appeal from the Judgement of Htgh Court at Mberara ln Crlmlnal Seeslon Case O83 of2O11 by Hon, Justlce V T Zehurtklze dellvered on 9th August

# KWIZERA JONAN !:::::::::::::r:::::::!:::::3:::::::i:t:::::::::33:::::::::::: APPELLANT VERSUS UGANDA ::::::::::::::33:::3:::::::::::::::::::::::::::::::::::::::::::33::3::::: RESPONDENT

#### JUDGMENT OF THE COURT

### 1. INTRODUCTION

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The appeliant was charged with aggravated defilement contrary to S. 129 (1), (3) & 4(a) ofthe Penal Code Act Cap 128. He was indicted, convicted and sentenced to allegedly 21 years of imprisonment. The appellant performed a sexual act on a girl below the age of 8 years at Kabuhweju in Ibanda district.

## 2. BACKGROUND

30 35 On 16th August 201O, Tindimwebwa Medius, a girl of 8 years, left home for church in Kabuhweju village. Upon reaching the church, she joined other people and started singing. After some time, the victim went to the toilet for a short call. While in the toilet, the appellalt found her there. The appellant grabbed the victim, put her on the ground. He removed her trouser and knickers halfway and had sexual intercourse with her. After committing the offence, the appellant left the scene of crime. The victim went back home and informed her mother, a one Kyogabi, that the accused had defiled her. Kyokabi checked the victim and saw

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5 blood oozing out of the latter's vagina. Kyokabi reported the matter to the area LCI chairperson who forwarded her to Kacuzi Police Post. The accused was arrested and charged with aggravated defilement. The victim was examined on police form 3 and found to be 8 years old. The accused was examined on police form 24 which states that he is 24 years old and mentally normal'

The appellant was tried and convicted of aggravated defilement contrary to S. 129(l), (3) and 4(a) of the Penal Code Act Cap l2O by Justice Y. T. Zehwkiriza, High court at Mbarara on 9th August 2013 and sentenced to 2l years of imprisonment. Being dissatisfied with the sentence of the trial judge, the appellant appealed to this court.

## 3. GROUND OF APPEAJ.

The learned trial judge erred in law and fact when he sentenced the appellant to a harsh and excessive sentence of 2l years. 20

## 4. ISSUES

1. Whether the sentence meted on the appellant was manifestly harsh and excessive? 25

#### Representatlon

At the hearing of the appeal on 3'd September 2024, the appellant was 30 represented by Mr. Emanuel T\.rmwebaze on state brief while the respondent was represented by Ms. Immaculate Angutoko, Chief Sate Attorney and Ms. Hope Mutonyi, Senior State Attorney.

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#### SUBMISSIONS OF PARTIES

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### 5. APPELLANT' S SUBMISSIONS

The appellant cited Kiualabye u Uganda SCCA 143 of 20O1 and Semanda christopher and another u tJganda cAcA 77 of 2010 where it was stated that, the appellant court cannot interfere with the sentencing discretion of the trial court, unless it is satisfied that the sentence imposed is manifestly excessive, or so low as to amount to a miscarriage of justice or where the trial court ignores to consider important matters or circumstances which ought to be considered when passing sentence or where sentence imposed is wrong in principle' 10

The appellant submitted that there is need to maintain consistency while sentencing persons convicted of similar offences. He cited Mbunga Godfreg u IJganda Criminal Appeal 4 of 2Ol1 which emphasized the principle that there is need to maintain in consistency when sentencing people. He also crted Olara

- John Peter u uganda crimina-l Appeal 30 of 2010 where the appellant had been sentenced to 16 years of imprisonment which was upheld by this court The appellant had defiled an 8-year-old child when he had the knowledge that he was HIV positive. The appellant also cited Kibarumo John u uganda cACA 225 - of 20 1o where the appellant was convicted of the offence of aggravated defilement of a 9-year-old girl on his own plea of guilty and sentenced to 15 years of imprisonment. on appeal to this court, the sentence was reduced to 11 years. The appellant submitted that his sentence of 21 years of imprisonment is inconsistent with the sentences upheld or given by this court, making it harsh 25 - and manifestly excessive for similar offences as stated above' 30

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## 5 6. RESPONDENT,S SUBMISSIONS

In reply, the respondent submitted that it is now settled law that sentencing is at the discretion of a trial judge and an appellant court will only interfere with the sentence imposed if it is evident that it acted on a wrong principle, overlooked some material fact or if the sentence is manifestly harsh and excessive or low in the view of the circumstarces of the case. It also cited Kiwalabye Bernard u lJganda SCCA 143 of 2001 which cited with approval Karisa Moses u Uganda SCCA 23 of 2016. The respondent contended that the appellant court should not interfere with the sentence imposed by the trial court on the ground that it would have imposed a different sentence. It further cited Kgalimpa Edward u Uganda SCCA 10 of 1995.

The respondent argued that the record of appeal shows when the Judge sentenced the appellant he gave his reasons. The judge's reason for sentencing was in full compliance with Article 23(8) of the Constitution and there is no illegality in the sentence of 21 years of imprisonment. The respondent submitted further that the sentence of 21 years of imprisonment in the circumstances is consistent to sentences deemed appropriate and upheld by this court and the Supreme Court. It cited Ouma Ben alias Ofit-tono u Uganda SCCA 20 of 2016 where the appellant was convicted of the offence of aggravated defilement and sentenced to 26 years of imprisonment. This court of appeal upheld the sentence and on further appeal to the Supreme Court, the appeal was dismissed for lack of merit. It also cited Kaserebangi u uganda SCCA 10 of 2Ol4 in which an appellant was convicted on his own plea of guilty for aggravated defilement and sentenced to 26 years of imprisonment. This Court dismissed the appeal against the sentence and the sanne was upheld by the Supreme Court. It cited Kizza Geoffreg u uganda Criminal Appeal 076 of 201O where the appellant was convicted of aggravated delilement of a l2-year-old victim and was sentenced to 30 years of imprisonment. A similar sentence was passed in Kabazi Isa u Uganda 20 25 30

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- 5 cAcA 268 of 2015 where the appellant's sentence of 30 years of imprisonment was confirmed for aggravated dehlements of 7 and 72-yeat-old girls. This was thesamewithAsegaGilbertutJgandaCACA016of2ol3wheretheappellant was also sentenced to 30 years for aggravated defilement' - 10 The respondent invited this court not to interfere with the discretion of the tria-l judge as no illegality was occasioned and all material factors were duly considered in imposing a sentence. They prayed that this appeal is disallowed' the conviction arrd sentence upheld

## 15 7, DETERMINATION BY COURT

The appellant contended that the trial Judge imposed a sentence inconsistent with the others upheld or given by the court of appeal making it harsh and manifestly excessive for similar offences'

The learned judge in his decision of sentencing stated,

"l have considered submissions by both counsel and the convict's prayer and in particular that he is a first time offender. He has been on remand for quite a long timeandhehasfamilyresponsibilities. Heisstillyoung. Ontheotherhand,he committed a serious offence, which is rampant in this country' Court has a duty to protect the girl child from such insensitive characters. A message should be sent to the would-be offenders. considering all the circumstances of this case and doing all the best I can, I would sentence the convict to a term of 24 years' But,sincehehasbeenonremandfor3years,theperiodisdeducted. Itherefore sentence him to a term of 21 years of imprisonment '"

Actually,thejudgesentencedtheappellantto24yearsofimprisonmenta]]dnot 2I years as indicated in the memorandum of appeal and in the parties' submissions. The 21 years was after he deducted the period spent on remand.

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- 5 In determining whether the sentence was excessive, we shall consider the mitigating and aggravating factors. In mitigation, the appellant was young man of 25 years at the time of the crime. He was a first offender. He had been on remandforabout3years. Hehadnocriminalrecord. Theappellantinformed court that his mother and father are dead, and his dependents have no one to look after them. In aggravation, the victim was 8 years old' Aggravated defilement 10 - is a grave offence. The convict's acts were traumatizing. Prosecution prayed that thecourtkeepspeoplewhobehavelikebeastsoutofsociety'Thisisarampant offence, and a message should be sent to the public' - The maximum penalty for the offence of aggravated defilement with which the appellant was convicted is death. Under the constitution (Sentencing Guidelines for court of Judicature) (Directions) 2o13, the starting point for aggravated defilement is 35 years. The sentencing range is between 30 years and death' In this case, we note that the appellant is a young man who dehled an 8-year-old 15 - child. In Gerrnan Benjamin u [Jganda criminal Appeal 142 of 2OLO the appellant defiled a S-year-old girl. His sentence was reduced from 20 to 15 years' In Ninsiima Gilbert u tJganda Criminal Appeal 180 of 2010 the appellant was convicted of defiling an 8-year-old girl. His sentence was reduced from 30 to 15 years. InAinatiauleutJgondaCriminal03Sgof2Ol5theCourtofAppeal 20

reduced the sentence from 16 to 15 years' 25

The sentence imposed on the appellant is a bit different from the sentences rn the above decisions with similar circumstances. In line with principle of consistency, by taking into consideration the above past court decisions we do find the sentence of 24 yeats of imprisonment excessive or harsh' We shall therefore set it aside and deliver a fresh sentence. we note that the conviction of the appellant was after a full trial. The appellant was a young man who can reform. we shalt reduce the sentence to t8 years of imprisonment from the date of conviction. The period spent on remand of 2 years 11 months and 13 days is

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5 deducted. Therefore, the appellant should serve 15 years and 18 days from the date of conviction. The appeal is allowed.

Dated at Mbarara tt is Q.l.ft aay 2024

Luswa

Justice ppeal

V Justice A

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Dr. ugenyi Justlce of Appeal