Mulindwa v Uganda (Criminal Appeal 72 of 2018) [2024] UGCA 273 (16 August 2024)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion & Mugenyi, JJA]

# Criminal Appeal No. 72 of 2018

(Arising from High Court Criminal Session Case No. 182 of 206 at Kampala)

## **BETWEEN**

Mulindwa Rodgers=

**Appellant**

#### AND

Uganda=

-Respondent

(On Appeal from the judgment of the High Court of Uganda (Abodo, J.,) delivered on the 12th of July 2018 at Kampala)

# **JUDGMENT OF THE COURT**

## Introduction

The appellant was convicted of the offence of aggravated defilement $\pi$ contrary to sections 129 (3), (4) (a) of the Penal Code Act. The particulars of the offence were that during the month of October 2015 at Kisalosalo zone, Kyebando in Kampala district the appellant performed a sexual act on a girl, KN, 7 years old. The appellant was sentenced to serve a sentence of 22 years, 5 months and 6 days imprisonment. He now appeals against sentence only.

The appellant sets forth 2 grounds of appeal which we set out below. $[2]$

> '1. The learned trial Judge erred in law and fact when she failed to inquire into the age of the appellant at the time of the commission of the offence and imposed an illegal sentence upon failure to remit the appellant to the Family and Children Court for sentencing thereby occasioning a miscarriage of justice.

> 2. The learned trial judge erred in law and fact when he imposed a sentence of 22 years, 05 months and 06 days' imprisonment on the appellant which is unduly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice."

- $[3]$ The respondent opposed the appeal and supported the sentence imposed by the trial court. - The appellant was represented by Mr. Mbalirwe Muhamed while the $[4]$ respondent was represented by Ms. Nabasa Carolyn Hope, Principal Assistant Director of Public Prosecutions, and assisted by Kirva Gonza Patricia, State Attorney, in the Office of the Director of Public Prosecutions. Counsel filed written submissions upon which the appeal proceeded.

#### **Facts of the Appeal**

- $[5]$ The facts as found by the trial court are that in month of October 2015 the appellant was living with the father of the victim in Kisalosalo zone in Kyebando and the victim. One day in the same month the appellant had sexual intercourse with the victim in the absence of her parents. When her mother came back home she notice a foul smell coming from her daughter and she examined her. She found pus oozing from her vagina. She asked the victim what had happened and the victim disclosed that the appellant had performed a sexual act on her. She reported to the police. The appellant was arrested. The victim was medically examined as was the appellant. The victim was found to be 7 years old with a ruptured hymen and vaginal secretion. The appellant was found to be 19 years old and mentally normal. - [6] The appellant was charged with aggravated defilement contrary to section 129 (3) & (4) (a) of the Penal Code Act. He was tried and convicted. He was sentenced to 22 years, 5 months and 6 days' imprisonment.

#### **Analysis**

$[7]$ This appeal proceeded against sentence only with the permission of this court. Before we consider the grounds raised we shall reiterate the circumstances in which this court may interfere with a sentence imposed by the trial court. It is now well settled that this court can only interfere with a sentence imposed by a trial court where the sentence is either illegal or founded upon a wrong principle of the law. An appellate court may equally interfere with the sentence where the trial court has not considered a material factor in the case or has imposed a sentence which is harsh and manifestly excessive in the circumstances of that particular case. See Kyalimpa Edward v Uganda, Supreme Court Criminal Appeal No 10 of 1995 (unreported): Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported) and Ninsiima Gilbert v Uganda [2014] UGCA 65; and Bashir Ssali v Uganda [2005] UGSC 21.

### Ground 1

- Under this ground the learned trial judge is faulted for not having inquired [8] into the age of the appellant at the time of sentencing and thereafter ought to have sent the appellant to a magistrate's court for sentencing as the appellant was 17 years old at the time the offence was committed. We have examined the record of the lower court. When the appellant was examined by PW2, Dr Santo Ojara, on 18th December 2015, he found him to be 19 years old. Though Dr Ojara was cross-examined by the defense he was never challenged on this finding. - [9] Secondly when the appellant testified in his defense at his trial on oath he gave his age at the time as 22 years old. This was on 4th June 2018. It was only after conviction at the sentencing stage that the claim of having been less than 18 years old at the time the offence was committed was raised. Firstly, in the submissions of his counsel at sentencing counsel submitted that the appellant was now 20 years old. And in the allocutus by the appellant himself he stated that he was 17 years old at the time he was arrested - There is no explanation why this matter was not raised at the trial itself so $[10]$ that it could be inquired into. In fact, it never arose at all during the trial. The appellant himself in his own testimony stated that he was 22 years old which would be consistent with being 19 years old in 2015 when he was first arrested and charged for the offence he was eventually convicted of. - We are unable to fault the learned trial judge in treating the appellant as an $[11]$ adult during sentencing. He was tried as an adult on the unchallenged evidence before the court that he was an adult. We would accordingly dismiss ground 1.

### Ground<sub>2</sub>

- [12] Under this ground the main complaint is that the sentence imposed upon the appellant was unduly harsh and excessive which called for this court to interfere with the same. Counsel for the appellant submitted that the tripartite principles of sentencing were proportionality, deterrence and rehabilitation. In his view a sentence of 25 years' imprisonment was ruinous rather than reformative. - [13] Counsel for the appellant referred this court to previous decisions of this court and the Supreme Court where sentences for aggravated defilement ranged from 10 years to 15 years' imprisonment. He referred to

Tiboruhanga Emmanuel v Uganda [2019] UGCA 2040 in which court observed that past decisions in respect of sentences for defilement ranged from 11 to 15 years' imprisonment. However, in that case because the appellant had exposed the victim to contracting HIV disease, a sentence of 25 years was considered appropriate.

- [14] In Katende Ahamad v Uganda [2007] UGSC 11 the Supreme Court upheld a sentence of 10 years' imprisonment for aggravated defilement. In Kabwiso Isa v Uganda [2003] UGSC 36, the Supreme Court reduced a sentence of 15 years' imprisonment to 10 years for a charge of aggravated defilement. In Candia Akim v Uganda [2016] UGCA 27, this Court upheld a sentence of 17 years imprisonment for a stepfather that defiled an 8 year old girl. In Kirungi Moses alias Ekanya v Uganda [2023] UGCA 309 this Court reduced a sentence of imprisonment from 27 years to 17 years. - Counsel for the respondent supported the sentence imposed upon the $[15]$ appellant by the trial court. She submitted that it was neither harsh nor excessive. She contended that it compared very well with the most sentences imposed in similar cases by this court and the Supreme Court. In this regard she referred to Nkwasibwe John v Uganda [2024] UGCA 161; Mbazira Joseph Paul v Uganda [2024] UGCA 162; Waswa Benson v Uganda [2024] UGCA 165; Asega Gilbert v Uganda [2016] UGCA 24; Opio Moses v Uganda Court of Appeal Criminal Appeal No. 118 of 2010 (unreported); Mugalu Geofrey v Uganda [2024] UGCA 159; Kayanja Hassan v Uganda [2024] UGCA 30; Kabagambe Yoweri v Uganda [2022] UGCA 303; Twayigira Soteri v Uganda Court of Appeal Criminal Appeal No. 94 of 2020 (unreported); Kamugisha Asan v Uganda Court of Appeal Criminal Appeal No. 212 of 2017 Court of Appeal Criminal Appeal No. 212 of 2017 (unreported); and finally, Byamukama Joseph v Uganda Court of Appeal Criminal Appeal No. 216 of 2015. - [16] A review of the said decisions reveals that many sentences for aggravated defilement ranging from 17 to 28 years' imprisonment have been confirmed by the Court of Appeal. - [17] The learned trial judge determined that the appropriate sentence in this case to impose on the appellant was 25 years' imprisonment from which she deducted the period of 2 years, 6 months and 24 days, the appellant had spent in pretrial custody before arriving at the final sentence. Although the trial judge cannot be faulted for the factors she considered as mitigating and aggravating circumstances the result was a sentence that was longer

than the age of the appellant at sentencing or at the time he committed the offence. The age of the appellant at the time the offence was committed was approximately 19 years old.

- [18] Had the appellant been a year less at the time he committed the offence the maximum punishment would be 3 years' imprisonment only which is the maximum punishment for persons under the age of 18 years. We would think, considering that the appellant was a marginal adult or a young offender it is important to take into account his exact age at the time he committed the offence. A sentencing court would then ensure that whatever punishment is assessed is one that is both proportionate to his age and offence committed, truly taking into account his marginal adulthood. At the same time it was important to provide him with an opportunity at reformation and rejoining society at an early stage. - [19] In our view it may be imperative to operate a sliding scale which allows those at the lower end of adulthood, and have just graduated from being children to be treated more leniently than the truly tried and tested adults. It is to this end that we would find that the sentence imposed on the appellant in this case was rather harsh and severe given his age. Justice must be tempered with mercy. Ogweng Dennis v Uganda [2023] UGCA 242 and Mugabe Joseph v Uganda [2023] UGCA 274 followed. - [20] We would therefore interfere with the sentence imposed upon this appellant and reduce it to 17 years from which we would deduct, 2 years, 6 months and 24 days, the period he had spent in pretrial custody. The appellant shall therefore serve a sentence of imprisonment of 14 years, 5 months and 6 days from 28th June 2018, the date of conviction.

Signed, dated and delivered at Kampala this 6 day of August 2024 Fredrick Egonda-Ntende **Justice of Appeal** Barishaki Cheborion **Justice of Appeal** Dr. Asa-Mugenyi **Justice of Appeal**