Mugerwa John v Uganda (Criminal Appeal No. 375 of 2020) [2023] UGCA 400 (7 June 2023)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0375 OF 2020

[CORAM: R. Buteera, DCJ; C. Gashirabake & O. Kihika, JJA]

#### **APPELLANT** MUGERWA JOHN :::::::::::::::::::::::::::::::::::: **VERSUS** UGANDA :::::::::::::::::::::::::::::::::::

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(Arising from the decision of the High Court of Uganda at Kampala, Jane Frances Abodo, J, in Criminal Case No. 1419 of 2016, dated 20th July 2018)

#### JUDGMENT OF THE COURT

### **Introduction**

The appellant was indicted for Aggravated Defilement contrary to **Section** 129 (3) (4)(a) of the Penal Code Act, Cap 120.

### The back ground facts

Facts as found by the trial Judge are that in the month of May 2015, at Bukasa Village, Kirinya Parish, Kira Town Council, Wakiso District, the appellant performed a sexual act on A. K, a girl aged 5 years.

That towards the end of May 2015, the victim and her mother left for the village for about 2 months and returned in July 2015. On the fateful day in July 2015 after their return, the victim suddenly came running to her mother who was in the presence of PW4 and narrated how the appellant wanted to take her to his house where he had earlier defiled her. She went 30 ahead to narrate how it had happened. On hearing this, the victim's mother rang the child's father. He advised that the matter be reported to Police.

Investigations were conducted and the appellant was arrested and indicted accordingly. He pleaded not guilty and put up a defence of alibi. Upon a

full trial, he was convicted and sentenced to 25 years, two months and 10 35 days' imprisonment after deducting a period of 2 years, ten months and 20 days as the period the appellant had spent on remand. Dissatisfied with that decision, the appellant filed this appeal.

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# Grounds of Appeal

- 1. That the learned trial Judge erred in law and fact when she failed to adequately evaluate all the evidence adduced before her thus arriving at a wrong conclusion that the charge of Aggravated Defilement had been proved against the appellant. - 2. That the learned trial Judge erred in law and fact when she held that the prosecution had proved the participation of the appellant whereas not. - 3. That the learned trial Judge erred in law and fact when she held that - prosecution had destroyed the defence of alibi adduced by the appellant whereas not. - 4. That the learned trial Judge erred in law and fact in sentencing the appellant to 25 years, two months and 2 days' imprisonment which sentence was deemed illegal, manifestly harsh and excessive in the circumstances

### Representation

At the hearing of the Appeal, the appellant was represented by Mr. Emmanuel Muwonge, while the respondent was represented by Ms' Immaculate Angutoko, Chief State Attorney in the Chambers of the DPP.

Counsel for the appellant moved under Section L32 (1) of the Trial on Indictments Act and Rule 45 of the Judicature (Court of Appeal Rules) Directions, to seek leave to file a supplementary Memorandum of Appeal' Counsel for the respondent did not object. Leave was granted and the Supplementary Memorandum of Appeal duly adopted.

Both counsel prayed that Court adopts the written submissions they had filed. Their Applications were granted. Court will consider the written submissions, the lower court record and relevant authorities to resolve the Appeal.

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# Case for the appellant

Counsel for the appellant highlighted the duty of the first appellate court He argued grounds 1, 2 and 3 together and ground 4 separately.

# Grounds 1, 2 and 3

- 5 Counsel contended that it is always incumbent upon the prosecution to prove the guilt of the accused, prove each and every ingredient of the offence charged to a standard of proof beyond reasonable doubt. He cited Woolmington v DPP; (1935) AC 462 and Ojapan Ignesious v Uganda; SC Criminal Appeal No. 25 of 2OO5. - Counsel conceded to the victim's age being below l8 years. He argued, however, that the second and third ingredients were not proved by the prosecution evidence as it was littered by grave inconsistencies which went to the root of the case. 10

He cited the testimony of Dr. Ojara Santa, PWz, the medical officer, who conducted the medical examination and filled PF3 and its appendix, who during his examination in chief stated that: 15

> "The hymen was raptured and healed, she had extensive inflammation around the vulva, I concluded that it was caused by blunt force, probably rubbing, I took the blood, she wAs negative. My conclusion was attempted defilement. I shaded the area that was injured. The healing showed it was more than 4 weeks old."

Counsel submitted that PW2, on cross- examination, stated that the injuries on the victim were 5 days old and they could not be explained by the 2 months' allegation as to when the offence happened. That he further stated that an adult defiling a five-year-old would cause extensive damage contrary to what he had observed on the victim. 25

Counsel noted that the PF3 and its appendix were not attached to the Record of Appeal yet it would have been important to make the assessment.

He submitted that PW2's evidence which was very important in proving a sexual act was inconsistent with and contradictory to the evidence of PW1 $\mathsf{S}$ and PW3 which stated that there was a sexual act.

He pointed out that the medical doctor who examined the victim stated that he was just told by the victim's mother that the victim had been defiled, contrary to his findings. Counsel contended that the testimony was hearsay which should not be admitted by the court.

He relied on the case of Ndyaguma David v Uganda; C. A. Criminal Appeal No. 236, cited with approval in Apea Moses v Uganda; C. A. Criminal Appeal No. 0653 of 2015; all cited with approval in the case of Lugemwa v Uganda; C. A. Criminal Appeal No. 216 of 2017, where the Court held that in cases where the victim of a sexual offence is not brought to testify 15 in court, evidence by persons called as witnesses that the victim told them that the accused defiled her is hearsay evidence, inadmissible at common law and such evidence ought to be rejected.

He also referred to Candiga Swadick v Uganda; C. A. Criminal Appeal No. 23 of 2012 on contradictions and inconsistencies. He noted that in $20$ Lugemwa v Uganda (supra), Court cited the case of Obwalatum Francis v Uganda; Criminal Appeal No. 30 of 2015, where the Supreme Court held that:

"the law on inconsistency is to the effect that where there are inconsistencies and discrepancies/ contradictions between the witnesses which are minor and of a trivial nature, these may be ignored unless they point to the deliberate untruthfulness. However, where contradictions and discrepancies are grave, this would ordinarily lead to

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# the rejection of such testimony unless satisfactorily explained"

Counsel contended that the contradictions on when the act of defilement took place and whether the act really took place are very major and go to the root of proving a major ingredient of the offence.

On the third ingredient of participation, counsel argued that this was not proved by the prosecution since PWl made a dock identification of the appellant and did not know the appellant's name' That the victim only knew the appellant as father to Ssentongo, yet the victim's mother testified that when she asked the victim to identify the person who had defiled her, the victim stated that it was not Taata Ssentongo but the one who drinks Iiquor and has a boda.

Counsel further pointed out that PW4, Nakalanzi Mariam, a friend to the victim's mother, testified that when she had gone to visit PW3 who had just given birth, the victim came to them running and said, 'Mummy I don't want Taata Ssentongo to take me, he had taken me to his house and removed my knickers and defiled me. So I don't want to go to his house'' 15

He thus argued that from the above evidence, the contradictions surrounding the identity of the person who attacked the victim were still major and that the trial Judge's failure to take them into account led to a miscarriage of justice to the appellant.

He prayed that the grounds of appeal are decided in favour of the appellant.

# Ground 4

Counsel argued that the learned trial Judge failed to take into consideration the mitigating factors before sentencing the appellant to a term of imprisonment of 25 years, 2 months and 10 days' imprisonment' He cited Kiwalabye Bernard v Uganda; S. C. Criminal Appeal No. 143 of 2001, on sentencing. He noted that Section 11 of the Judicature Act grants 25

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the Court of Appeal the same powers of sentencing as the trial court. He also made reference to Paragraph 6 (1) of the Constitution (Sentencing Guidelines for Court of Judicature) (Practice) (Directions), 2013.

Counsel submitted that the learned trial Judge set out the reasons for sentencing the appellant but did not take into consideration the period the $\mathsf{S}$ appellant had spent on remand.

He further submitted that the appellant was a young man aged only 24 years, with a young family and three children and with a lot of room to reform. To counsel, given those circumstances, the sentence imposed by the trial Judge was manifestly harsh and excessive.

Counsel invited Court to apply the comparative test where the perpetrators in a similar offence received lighter sentences as compared to the appellant. He cited Kizito Senkula v Uganda; S. C. Criminal Appeal No. 24 of 2001, where the appellant defiled a girl aged 11 years old and was sentenced to 15 years' imprisonment. The Supreme Court found it appropriate but reduced it to 13 years after taking off 2 years as the remand period.

He cited Bikanga Daniel v Uganda; C. A. Criminal Appeal No. 38 of 2000, where the appellant defiled a girl under the age of 18 years and was sentenced to 21 years' imprisonment. The Court of Appeal reduced the sentence to 12 years' imprisonment.

In Katende Ahmed v Uganda; Criminal Appeal No. 6 of 2004, an appellant who had defiled his nine-year-old daughter on several occasions was sentenced to 10 years' imprisonment. This sentence was confirmed by the Supreme Court.

Counsel argued that the sentences in the above cases were after the trial courts had conducted full blown trials. He referred to Aharikundira Yustina v Uganda; S. C. Criminal Appeal No. 27 of 2015, where it was held

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that the other way of confirming whether the sentence was manifestly harsh or excessive was by applying the consistency principle.

He thus prayed that this Court finds this a fit and proper case where it can exercise its discretion and reduce the sentence of 25 years, 2 months and 10 days' imprisonment that was imposed against the appellant to a sentence which is just in the circumstances.

# Case for the respondent

Counsel for the respondent contended that the first ground of Appeal as raised by the appellant offends Rule 66 (2) of the Court of Appeal Rules in so far as it fails to specify exactly the point of law or fact or the evidence that he contends was wrongly decided. Counsel observed that in Seremba Dennis v Uganda; C. A. Criminal Appeal No. 480 of 2O17, this Court struck out two grounds for offending the said rule. One of these grounds was,

15 'The learned trial Judge erred in law and fact when he failed to properly and adequately evaluate the evidence before him as a whole thereby arriving at a wrong conclusion.'

In Ntirenganya Joseph v Uganda; C. A. Criminal Appeal No. 109 of 2OL7, this Court struck out a similar ground, 'The learned trial Judge erred in law and fact when he failed to evaluate the evidence as a whole thereby reaching a wrong decision', for offending Rule 66 (2) of the Court of Appeal Rules.

Counsel thus invited this Court to apply the same principle in striking out the first ground of aPPeal.

2s Counsel noted that in the unlikely event that the first ground was not struck out, she would respond to grounds 1, 2 and 3 jointly as argued by counsel for the aPPellant.

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She argued that the ingredient of sexual intercourse was proved by the evidence of PWI who testified that on the fateful day, she was playing with her friend when the father of Ssentongo, the appellant, called her and told her to remove her knickers and did bad things to her. That he removed his penis, and did bad things to her and put his penis in her susu which caused her to feel a lot of pain. That the victim further testified that the appellant attempted to take her back to his room. She ran away and told her mother.

Counsel submitted that the victim's evidence was corroborated by PW2, the medical officer, who stated that upon examining the victim, her hymen was raptured and healed. That she had extensive inflammation around the vulva and this was caused by a blunt force probably rubbing. Further that PW3 corroborated this in her evidence when she stated that, 'l checked her (victim) when she persisted, I saw Some swellings on her private parts'.

It was counsel's submission that the evidence goes to prove the ingredient of a sexual act having been performed upon the victim.

Regarding the appellant's participation, counsel submitted that the evidence of his participation was adduced by PWI when she narrated how the appellant defiled her and stated that, 'l can identify the accused. He is the one who did bad things to me'. Counsel cited the case of Ntambala

Fred v Uganda; S. C. Criminal Appeal No. 34 of 2O15, where the Justices of the Supreme Court held that: 20

> "a conviction can be solely based on the testimony of the victim as a single witness provided that the court finds her to be truthful and reliable. As was stated by this Court in Sewanyana Livingstone v Uganda; SCCA No. 19 of 2OO6, what matters is the quality and not quantity of evidence."

Counsel further referred to Prof. Lillian Tibatemwa in a separate opinion agreeing with the majority discussed the law on corroboration in sexual assault cases in detail, thus:

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,,What I must therefore emphasise is that the evidence of a victim in a sexual offence must be treated and evaluated in the same manner as the evidence of a victim of any other offence. As it is in other cases, the test to be applied to such evidence is that it must be cogent. I would therefore find it right to proceed under Article L32 (4\ of the Constitution to depart from this Court's previous decisions cited in this judgment where the cautionary rule was held to be a requirement in sexual assault prosecutions."

Counsel contended that the evidence of the appellant's participation was proved beyond reasonable doubt by the evidence of the victim who was truthful. 10

On contradictions, counsel for the respondent noted that the only contradiction was in respect to the date on which the offence was committed. She referred to the case of Makabugo Christopher v Uganda; C. A. Criminal Appeal No. 0348 of 2O15, where PW1, 2 & 3 failed to recall the actual date, this Court found no basis for the argument that it was a grave contradiction. Court went ahead to point out that going by the ages of the children, loss of memory by such young witnesses after a considerably long time is excusable. That even in the absence of a specific date, there was other strong evidence that the offence was committed and by the appellant. 15 20

Counsel prayed that Court finds that there is overwhelming evidence that the offence was committed by the appellant-

On alibi, counsel reiterated her earlier submissions and added that the defence of alibi was rebutted by prosecution through the evidence of PWl who placed the appellant at the scene of the crime at the material time. Counsel referred to the case of Jamada Nzabaikukize v Uganda; SCCA No' 1of 2Ol5 in which the learned Justices of the Supreme Court citing Moses Bogere v Uganda; SCCA No. 1 of 1997, held: 25 30

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O ,,What then amounts to putting an accused person at the scene of crime? [{e think that the expression must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the Court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the valuation of the evidence as a whole..." (Sic)

Counsel invited this Court to find that the evidence adduced by the prosecution proves beyond reasonable doubt that the appellant was at the scene of the crime at the material time and therefore destroys his alibi. 10

## Ground 4

Counsel referred to Kiwalabye Bernard v Uganda (supra) and submitted that it is settled law that sentence is a discretion of a trial Judge and an 1s appellate court will only interfere with a sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances of the case.

She also referred to Kyalimpa Edward v Uganda; S'C' Criminal Appeal No'

zo 10 of lggS where it was held that an appropriate sentence is a matter of discretion for the sentencing judge'

Counsel observed that in the present case, the victim was only 5 years old' She was traumatised as a result of the first sexual intercourse. She had opted not to disclose to her mother what had transpired until a second zs attempt by the appellant to defile her. She stated that the learned trial Judge considered the mitigating and aggravating factors and stated:

> 'I hereby take into account and set off two years and 10 months, twenty days as the period the convict has already spent on remand. I therefore sentence the accused to a term of

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imprisonment of twenty-five (25) years, two months and ten (10) days to be served starting from today''

Counsel posited that there was no illegality in the sentence and submitted that in any case, a sentence of 25 years, two months and 10 days was within the range of sentences upheld/ meted by this Court in similar cases.

She referred to Kiiza Geoffrey v Uganda; Criminal Appeal No' O76 of 2010in which the appellant was convicted of Aggravated Defilement of a victim of 12 years and sentenced to 30 years' imprisonment. This Court in exercise of its powers under Section 11 of the Judicature Act sentenced him to 28 years and 9 months upon deducting the period spent on remand.

In a recent decision of Kabazi Issa v Uganda; C. A. Criminal Appeal No' 268 of 2015, this Court found a sentence of 32 years for Aggravated Defilement of two victims aged 7 years and 12 respectively to be within the permissible sentencing range of 30 years up to death as provided by the Constitution (Sentencing Guidelines for Courts of Judicature)'

Counsel, therefore, invited this Court not to interfere with the discretion of the learned trial Judge, disallow the Appeal and dismiss it accordingly.

## Court's consideration

The duty of this Court as a first appellate court is well settled. This being afirst appeal, we are required to re-appraise all the evidence adduced at the trial and make our own inferences on all issues. See; - Rule 30(1) of the Rules of this Court, Fr. Narcensio Begumisa & Others vs Eric Tibebaga; Supreme Court Civil Appeal No. l7 of 2OO} Bogere Moses Vs Uganda; supreme court criminal Appeal No. I of 1997 and Kifamunte Henry Vs Uganda; Supreme Court Criminal Appeal No. 1O of 1997' 20 25

In undertaking that duty, we shall first address the preliminary point of Iaw raised by counsel for the respondent and proceed to handle the grounds of appeal.

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Counsel for the respondent asked this Court to strike out the first ground of appeal for violating Rule 66 (2') of the Judicature (Court of Appeal Rules) Directions, S.l. 13-10. It provides:

> "(2) The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifyinS, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided."

The impugned ground of Appeal reads:

"That the learned trial Judge erred in law and fact when she failed to adequately evaluate all the evidence adduced before her thus arriving at a wrong conclusion that the charge of Aggravated Defitement had been proved against the appellant."

In the case of Muhereza Bosco v Uganda; Criminal Appeal No. O66 of 2011, the Court of Appeal while considering a ground that read:

The learned trial Judge failed to properly evaluate the evidence on record as a whole and came to a wrong decision, observed as follows:

"The second ground of appeal is too general and was not even argued by counsel for the appellants. In any event it is superfluous as this court has a duty to re-evaluate the evidence as a first appellate court. We would strike it out as it offends Rule 66 (2) of the Rules of this Court which requires that a memorandum of appeal sets forth concisely and without argument the grounds of objection to the decision appealed against specifically the points of law or

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## mixed fact and law which is alleged to have been wrongly decided."

We agree with the authority above quoted.

10 5 In the instant case, a simple reading of the first ground of appeal shows that the appellant has not pointed out what point of law or fact the Iearned trial Judge failed to evaluate. An appellant cannot and should not throw grounds of Appeal at court and expect court to wade through them looking for where the learned trial Judge went wrong' An appellant has a duty under Rule 66(2) of the Rules of this Court to set forth concisely the ground of objection to the decision appealed against. The appellant must in a first appeal, which this one is, specify the fact or mixed law and fact which he is alleging was wronglY decided.

The appellant here does not state the specific fact or mixed law and fact that was wrongly decided by the trial court. The first ground is hereby struck out for offending the provisions of Rule 66 (2) of the Rules of this Court.

We shall proceed to handle grounds 2 and 3 together as they both revolve around the appellant's participation in the offence for which he was convicted. Counsel for the appellant argued that the medical evidence of pW2 was inconsistent with that of the other prosecution witnesses, to wit; that of pW3 who testified that the victim came running to her and informed her that the appellant wanted to defile her again, and that of PW4 who testified that she was visiting PW3 when the victim informed them that the appellant had defiled her and wanted to do it again. Counsel argued that this contradicted the victim's testimony where she testified that it was not Taata Ssentongo who had defiled her but rather someone who used to take liquor and had a boda.

It was counsel's contention that the medical officer testified that the victim's hymen was raptured and healed, she had extensive inflammation around the vulva, and it was his conclusion that it was caused by blunt

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force, probably rubbing. And that his conclusion was attempted defilement and that the healing showed it was more than 4 weeks old.

As to whether a sexual act had been performed on the victim, this has been proved by the medical officer who testified that the victim's hymen was raptured.

The question that now remains is whether it is the appellant who defiled the victim. From the record of appeal, the victim narrated clearly what exactly happened; how the appellant took her to his house and made her lie on the bed and he put off her knickers and put his penis in her 'susu' and did bad things to her. She informed Court that she did not tell her mother because the appellant asked her not to. This incident took place during broad day light. The victim knew the appellant very well seeing that he first sent her to go and see if his children had come back by the road side. That shows that the victim knew the appellant very well. It is no wonder that she was able to identify him in the dock. Trial Court also found that she had ably distinguished between Taata Ssentongo who was a builder and Taata Ssentongo who owned a boda.

From this evidence, we find that the learned trial Judge rightly found that the appellant had been placed at the scene of the crime and therefore dismissed his defence of alibi. It is trite that when the Prosecution adduces cogent evidence placing the accused at the scene of crime as the perpetrator of the offense he is charged with, the alibi mounted as a defense crumbles. See Alfred Bumbo V Uganda; S. C. Criminal Appeal No.28l2004. 20

The circumstances in this case are different from the authorities that counsel for the appellant sought to rely upon to reiect the evidence of PW3 and pW4 as hearsay. This is because the victim herself came to court and testified and the trial Judge observed her as she testified and she found her reliable. 25

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In this case, we are satisfied that the victim ably and accurately identified the appellant as the person who defiled her. The medical findings by PW2 confirm that the defilement had taken place sometime prior to the reporting and the medical examination. That explains his testimony that the hymen was raptured and healed.

In the circumstances, we find no merit in the two grounds and reject them accordingly.

## Ground 4

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Counsel for the appellant challenged the sentence on two fronts; that the learned trial Judge did not consider the period the appellant had spent on $10$ remand and did not take into consideration the mitigating factors. And that in comparison to sentences in other cases of a similar nature, the appellant's sentence of 25 years, two months and 10 days was manifestly harsh and excessive.

The law that governs sentencing is well established. The case of 15 Wamutabaniwe Jamiru v Uganda; SCCA No. 74 of 2007 in which Kamya Johnson Wavamunno; CACA No. 16 of 2000 was cited, gives the circumstances under which an appellate court may interfere with the sentence imposed by a trial court. In Kyalimpa Edward v Uganda; Criminal Appeal No. 10 of 1995, the Supreme Court referred to the case 20 of R v De Haviland (1983) 5 Cr. App. R 109, and held that:

> "It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive to amount to an injustice."

A look at the record of appeal shows that the learned trial Judge did not only consider the mitigating factors but she also took into account the period that the appellant had spent on remand. She stated:

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,,The accused was aged 24 years at the time of the offence and the age difference between the victim and the convict was 19 years. The child suffered a lot of physical and psychological pain. I agree with the prosecution that sexual assaults on children of tender years is on the increase. this trend has to be stopped. Children should be left as children and their innocence not taken away in the most violent way by people like the convict. It iS for those reasons that I have considered a starting point of thirty-one years' imprisonment.

The seriousness of this offence is mitigated by a number of factors; the fact that the convict is a first offender and afflicted by serious ailment. He has a large family to look after. The severity of the sentence he deserves has been mitigated by those factors and is reduced from the period of thirty-one years, proposed after taking into account the aggravating factors, now to a term of imprisonment of twenty-eight years'

It is mandatory under Article 23 (S) of the Constitution of the Republic of uganda, 1995 to take into account the period spent on remand while sentencing a convict. Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, requires the court to 'deduct' the period spent on remand from the sentence considered appropriate, after all factors have been taken into account. This by way of set-off. From the earlier proposed term, arrived at after consideration of the mitigating factors in favour of the convict, the convict having been on remand since 25'h of August 2015, I hereby take into account and set off two years and ten months, twenty days as the period the convict has already spent on remand. I therefore sentence the accused to a term of imprisonment of twenty-five (25) years, two (2) months and ten (10) days to be served starting from today."

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We have extensively reproduced the sentencing decision of the trial court to show that none of the claims made by counsel for the appellant regarding the manner in which the learned trial Judge exercised her sentencing discretion are true. She evidently took into account both aggravating and mitigating factors and deducted the period the appellant had spent on remand before she pronounced her final sentence.

What now remains is the question of severity of sentence. To buttress his contention, counsel for the appellant cited a number of cases where this Court and the Supreme Court gave sentences less than what the appellant had been given, in cases of a similar offence.

To answer this ground, we wish to observe that the maximum penalty for the offence with which the appellant was tried and convicted is death. We have already stated the law that governs circumstances under which the trial court's sentencing discretion may be interfered with. In this case, we find no such circumstances. As for the argument that this court has given

15 less sentences, we also wish to cite other cases where the sentences given or confirmed were in the range of the sentence that was imposed on the appellant.

In the recent case of Bonabantu Francis v Uganda; C. A. Criminal Appeal

- No. 013 of 2017, this Court found that a sentence of 23 years' $20$ imprisonment would best serve the interests of justice. From that, it deducted two years and eight months' that the appellant had spent on remand prior to his conviction and sentenced him to serve an imprisonment term of 20 years' and 4 months. - In Anguyo Siliva v Uganda; Court of Appeal Criminal Appeal No. 0038 $25$ of 2014, the appellant was sentenced to 27 years' imprisonment on an offence of aggravated defilement. This Court took into consideration all the relevant materials, deducted the period of three years that the appellant had spent on remand and reduced the sentence to 21 years and 28 days. 30

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In another case of Mwanje Godfrey v Uganda; Criminal Appeal No. 266 of 2015, this Court upheld the sentence of 22 years in a case where the appellant pleaded guilty to two counts of aggravated defilement. This Court found that the 22 years' imprisonment sentence was neither harsh nor excessive.

In this case, the appellant pleaded not guilty thereby taking Court through a full trial. To make matters worse, he was planning to defile the victim a second time, upon which the victim informed her mother. We would therefore, find that the sentence of 25 years, two months and 10 days is neither harsh nor excessive and neither is it out of the ordinary as has been demonstrated by the authorities cited above, together with those that were referred to by counsel for the respondent.

For those reasons, this ground would equally fail for lack of merit.

On the whole, this Appeal fails in its entirety and is hereby dismissed. The conviction and sentence imposed by the trial court are accordingly upheld.

Dated at Kampala this .................................... JUNe ............ 2023

**Richard Buteera** $20$

**Deputy Chief Justice**

topher Gashirabake **Justice of Appeal**

Oscar Ki **Justice of Appeal**

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