Mugalu v Uganda (Criminal Appeal 92 of 2014) [2024] UGCA 159 (15 July 2024)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

(Coram: Hellen Obura, Muzamiru M. Kibeedi & Moses K. Kazibwe JJA)

# CRIMINAL APPEAL NO. OO92 OF 2014

# MUGALU GEOFFREY::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA::::::::::::::::::::::: . . . . . . . . . . . . . . . . . . . **::::::::::RESPONDENT**

(Appeal from the sentence of the Learned Trial Judge Lameck N. Mukasa delivered on the 21<sup>st</sup> day of March 2014 in HCT-SC-O219/2O11 at Mukono).

# JUDGMENT OF THE COURT

### Introduction

The appellant was convicted of the offence of aggravated defilement contrary to section 129(3) and 4(a) of the Penal Code Act, on his own plea of quilty, and sentenced 25 years' imprisonment. Being aggrieved by that decision, he has appealed to this Court against sentence only.

In the sole ground of appeal, the learned trial Judge is faulted for imposing a manifestly harsh and excessive sentence upon the appellant in isolation of the mitigating factors hence causing a miscarriage of justice.

#### **Representation**

At the hearing of this appeal, the appellant was represented by Ms. Brenda Ainomugisha on state brief while Immaculate Angutoko, CSA held brief for Nabaasa Carolyn Hope, Principal Assistant Director Public prosecutions appeared for the respondent.

$\mathbf{1}$

### Appellant's Submission

Both parties filed written submissions which we have considered in this judgment. Counsel for the appellant sought for leave to appeal against sentence only. He then submitted for the appellant that the learned trial Judge merely noted that he had considered both the mitigating and aggravating factors and thereby failed to weigh those factors against each other which resulted into imposition of an excessively harsh sentence of 25 years' imprisonment. Counsel buttressed his argument for a lesser sentence with the decision in **Karuma John v Uganda**, **Court of Appeal Criminal Appeal No.225 of 2010** where the victim was nine years and the appellant was convicted of aggravated defilement and sentenced to 15 years' imprisonment by the trial court. On appeal, this Court reduced the sentence of 15 years to 11 years. He also cited **Ntale Fred v Uganda**, Court of Appeal Criminal Appeal No. 0177 of 2009 where this Court confirmed a sentence of 14 years. He prayed that this appeal be allowed, the sentence of the lower court of 25 years be set aside and a lesser and appropriate sentence be imposed by this Court.

# **Respondent's Submissions**

We must observe from the onset that counsel for the respondent made a very elaborate submission where she cited many authorities to support her argument. We have considered all her arguments and the supporting authorities. However, for purposes of this judgment we will only give a summary of the submission. Counsel stated that they have no objection to the application for leave to appeal against sentence only. On the merits of the appeal, she contended that the resultant effect of the sentence in issue ought to be envisaged in the circumstances of each case so as to warrant the appellate court's interference with the sentence. She submitted that counsel needed to demonstrate how the sentence complained against amounted to an injustice or led to a miscarriage of justice. Further, that counsel has failed to demonstrate how imprisonment for only 25 years' jail term is excessive when the maximum sentence is death penalty. He added that the argument that the sentence was


reached in isolation of mitigating factors is unfounded since counsel has not pointed out from the record of appeal any mitigating factor that was left out during the sentencing proceedings.

### **Resolution of the Appeal**

Since there is no objection to the appellant's application for leave to appeal against sentence only, it is accordingly granted. We are alive to the settled position of the law that an appellate court is not to interfere with the sentence imposed by the trial court which exercised its discretion on sentencing unless the exercise of the discretion is such that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing sentence or where the sentence imposed is wrong in principle (see Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995).

We have perused the record of sentencing proceedings and considered the authorities that counsel for the appellant relied on to buttress her arguments. We note that in mitigation, it was submitted that the appellant had readily pleaded guilty. He thereby acknowledged his responsibility for the offence. He did so even in his charge and caution statement. Counsel submitted that the appellant was repentant. Further, that he had two children of 6 years and 3 years of age who needed his financial provision for their education. In his allocutus, the appellant undertook not to commit the offence again. He requested for leniency.

In aggravation, it was submitted that the victim was of a very tender age of 5 years old and she was likely to be traumatized all her sexual life as a result of the sexual assault by the appellant who was an adult neighbour. Counsel proposed 40 years of imprisonment as a deterrence to the appellant and other potential child abusers. The mother of the victim who was in court, said the appellant was an in-law and prayed that he should be adequately punished for the abuse of the child's right and protection.

The learned trial Judge stated that he had considered all the factors that were presented by both parties and he arrived at a sentence of 28 years which he found to be appropriate in the circumstances. He took into account the period of 3 years and 3 months the appellant had spent on remand and sentenced him to 25 years' imprisonment to be served from the date of conviction which was 6<sup>th</sup> March 2014.

In his sentencing ruling the learned trial Judge stated as follows: -

"I have considered all the above aggravating and mitigating factors. Court has a duty to protect children against all forms of violence, sexual violence inclusive. It was beastly for the convict to engage such of young girl of 5 years in sexual intercourse (sic). I however note the medical finding that:

"She has no averted physical injuries.... Genital examined showed areas of

inflammation at the external genitalia and introitus. The hymen is still intact."

The convict was however an in-law to the victim's family which traditional puts him in a position of authority over the victim a factor which would qualify even simple defilement into aggravated defilement (sic). The convict must be punished for the offence which he committed which offence contributed to 50% of the 40 cases cause listed for this session. The offence under the Sentencing Guidance has a sentencing range from 30 years of imprisonment to death with a starting point of 35 years' imprisonment.

Considering all the above, I find a sentence in the mid-term of 28 years appropriate. I take into account the three years and 3 months spent on remand and sentence the convict to 25 years of imprisonment from the date of conviction i.e. 6/3/2014."

We note from the above excerpts of the sentencing ruling that the learned trial Judge considered both the mitigating and aggravating factors, but also proceeded to specifically point out some of the aggravating factors. In that regard he noted that it was beastly for the appellant to engage a young girl of 5 years in sexual intercourse. He weighed that against the findings in the medical report that the victim had no averted injuries and the hymen was intact. He also considered the fact that the appellant was an in-law to the victim's family which


$\overline{4}$

traditionally put him in a position of authority. Further, that the offence of aggravated defilement formed 50% of the 40 cases cause-listed in that session implying that the offence was rampant. However, there was no specific mention of any of the mitigating factors presented on behalf of the appellant at that stage of weighing of the factors.

We therefore accept the appellant's submission that the mitigating factors presented by the appellant were not specifically pointed out by the learned trial Judge in his ruling and weighed against the aggravating factors. More attention was paid to the aggravating factors which marred the fact that the appellant was a first offender who pleaded guilty at the commencement of the trial and did not waste court's time. The medical examination report which was admitted as an agreed document and marked Exhibit P2 indicates that the appellant was only 19 years at the time he committed the offence on 22<sup>nd</sup> December 2010. His counsel had stated that he was 21 years as at the time of sentencing. Those factors were not specifically weighed against the aggravating factors.

In Sseruyange vs Uganda CACA No. 080 Of 2010 the learned trial Judge stated in his sentencing ruling that he had considered both the aggravating and mitigating factors but went ahead to explicitly single out the aggravating factors without doing the same to the mitigating factors. On appeal this Court highlighted the remarks of the trial court and held as follows: -

"Although the learned trial Judge remarked that she had considered all the mitigating and aggravating factors, it is our view, that a reasonable person would conclude from reading those remarks that it was the factors that the learned trial Judge explicitly referred to, that prominently weighed on her mind as she sentenced the appellant.

The reasonable person could conclude, that because she did not, in her sentencing remarks explicitly refer to the fact that the appellant was a first offender the learned trial Judge did not consider it to be a material factor. This was an error. In our view, the fact of a being a first offender is a material factor that a sentencing court ought to consider. In the authority of **Kamya Johnson vs. Uganda, Supreme Court Criminal Appeal No. 016 of 2000** (unreported) in which it was held that an appellate court

$\mathsf{S}$

may interfere with a sentence imposed by the trial court if there was a failure to take into account a material consideration in sentencing.

In the present case the learned trial Judge failed to take into account the fact that the appellant was a first offender when she sentenced him. For that reason, we shall interfere and set aside the sentence of 33 years' imprisonment that was imposed on the appellant."

We therefore respectfully fault the learned trial Judge in the instant case for his failure to consider the fact that the appellant was a first offender of 19 years who pleaded guilty at the commencement of the trial and did not waste court's time.

In the circumstances, we find that the trial court ignored to consider an important matter. Consequently, we interfere and set aside the sentence of 25 years imposed on the appellant. We now invoke section 11 of the Judicature Act which gives this Court the power of a trial court, to sentence the appellant afresh. To that end, we will consider the aggravating and mitigating factors presented before the trial court, which we have already highlighted above and see no need to reproduce them here again. We will also consider some decisions of this Court in similar cases of aggravated defilement. We thank counsel for the respondent for providing a number of those authorities to support her submission against reducing the sentence.

In *Apiku Ensio vs Uganda [2021.] UGCA 15*, the appellant was convicted of aggravated defilement and sentenced to 25 years' imprisonment. The victim was under 14 years, dumb and with mental disability. This court found a sentence of 20 years' imprisonment appropriate and upon deducting the period spent on remand, the appellant was sentenced to 17 years and 1-month imprisonment.

In **Byera vs Uganda [2018] UGCA 61**, the appellant who was 39 years old was convicted of the offence of aggravated defilement and sentenced to 30 years' imprisonment. The victim was $3^{1/2}$ years old and a stepdaughter to the appellant. This court found the sentence of 30


years harsh and excessive. In substitution thereof a sentence of 20 years' imprisonment was found to be appropriate and upon deducting the period spent on remand, the appellant was sentenced to 18 years and 4 months' imprisonment.

In Sseruyange vs Uganda (Supra) where the victim was 9 years, this Court imposed a sentence of 27 years upon the appellant who was 24 years at the time of commission of the offence. In Othieno John vs Uganda, CACA No.174 of 2010 this Court while confirming the sentence imposed by the trial court, accepted the respondent's submissions that the appellant had failed to demonstrate how a sentence of 29 years for aggravated defilement case was harsh and excessive.

In Benywanira Emmanuel vs Uganda, Court of Appeal Criminal Appeal No. 0120 Of 2018 where the appellant had pleaded guilty to aggravated defilement of a victim estimated to be 4 years, on appeal this Court found that the sentence of 32 years was legal and that there was no basis for setting it aside.

In Kayanja Hassan vs Uganda Court of Appeal Criminal Appeal No. 206 of 2021 this Court found a sentence of 22 years to be within the permissible range and also underscored that the sentence was too lenient considering the circumstances of that case.

In **Kabagambe Yoweri vs Uganda CACA No. 659 Of 2015**, the appellant, who was 20 years old while the victim was 11 years, pleaded quilty of aggravated defilement and on appeal this Court did not interfere with the sentence of 22 years' imprisonment that was imposed by the trial court. In Twayigira Soteri vs Uganda CACA No. 094 of 2020, this Court confirmed a sentence of 22 years' imprisonment upon finding that the trial court had considered all aggravating and mitigating factors.

In *Kamugisha Asan vs Uganda CACA No. 212 Of 2017*, this Court reduced a sentence of 26 years to 22 years' imprisonment.


$\overline{7}$

In this case, we have considered both the aggravating and mitigating factors, especially the fact that the appellant was a young man of 19 years and a first offender who pleaded guilty and did not waste court's time. We are of the view that in the circumstances, a sentence of 25 years would be appropriate. Upon deducting the period of 3 years and 3 months spent on remand, we sentence the appellant to 21 years and 9 month's imprisonment to be served from 6<sup>th</sup> March 2014 being the date of his conviction.

We so order.

Dated at Masaka this.................................... .......2024

Hellen Obura **JUSTICE OF APPEAL**

Muzamiru M. Kibeedi

**JUSTICE OF APPEAL**

Moses K. Kazibwe **JUSTICE OF APPEAL**