Ndika v Uganda (Criminal Appeal 357 of 2015) [2024] UGCA 190 (19 July 2024)

Full Case Text

### 5 THE REPUBLIC OF UGANDA

## THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Geoffrey Kiryabwire, Irene Mulyagonja, Eva K. Luswata, JJA)

# CRIMINAL APPEAL NO. 0357 OF 2015

### BETWEEN

10 NDIKA C. SILVESTER APPELLANT

### AND

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Jud.gment of the Htgh Court sitting at AdJumanl ln Crlminal Session Ccrse JVo. O7O of 2074 bg Jttstlce Vlncent J. Okutanga delloered on 7&h September' 2014)

### JUDGMENT OF THE COURT

# Introduction

1l This appeal arose from the decision of the High Court of Uganda in which the trial Judge convicted the Appellant of the offence of aggravated defilement, contra-q/ to Sections 129(3) & (4) of the Penal Code Act Cap. 120 and sentenced him to 23 years' imprisonment. It was stated in the indictment that the Appellant Ndika C. Silvester, on the ))nct \/lal1sl1 2013, at Kibira Village in the Adjumani District being HIV positive, had unlawful sexual intercourse with a girl who we shall refer to as UC, who was at the material time, under the age of l8 years.

- 5 2] We were able to deduce from the facts admitted at the trial from the Record and part of the judgment. It was stated that the Appellant a herdsman in Madulu village Arinyapi Parish, resided in a single room about lOO meters from UC's home in Kubira village. On 2l"t March 2013, the Appellant went to UC's home at around 11:00 P. M and found her alone revising her notes. On learning that UC's mother was not around, he called her outside with a request that she gives him some water for domestic use. He specifically requested her to take the water into his house which she did. When UC entered the Appellant's house, he invited her to join him in watching a film on his mobile phone. He subsequently closed the door, pulled UC to the bed and had sexual intercourse with her. When UC's mother retumed home a-fter midnight, she confirmed that UC was missing. With the help of UC's brother, she discovered her hiding behind a door in the Appellant's house. Both UC's brother and her mother kept UC and the Appellant in that room until day break when UC's father returned. 10 15 20 - 3] The next morning, the appellant admitted before the Local Council (LC) I and UC's father that he had sexual intercourse with UC. Both UC and the Appellant were medically examined and it was confirmed that the Appellant was above 18 years of age, mentally sound and was HIV positive. UC was confirmed to be a child below 18 years who had vaginal injuries and her hymen had raptured long ago. The appellant was tried, convicted and sentenced to 23 years' imprisonment. He lodged an appeal against both his conviction and sentence. /

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#### 5 Representation

- 4l At the hearing of the appeal, the Appellant was represented by Mr. Ronald Onencan on State brief. The Respondent was represented by Mr. John Boniface Kulu Idambi an Assistant DPP. Mr. Onencan sought, and we granted him leave to file an amended memorandum of appeal out of time. This appeal is therefore premised on a supplementary memorandum of appeal with the following grounds: - i. Thatthe learnedtrtalJudge erred in law andfact when he conaicted the Appellant wlthout considering the defence and the maior contradlctions and inconsistencies ln the prosecution case. - ii. That the learned trial &td.ge erred. in laut and fact uthen he passed an illegal, excessiae and harsh sentence of 23 gears utithout due consid.eratlon to the mitig ating factors.

Both counsel liled written submissions and filed authorities which we have considered when arriving at our decision.

### Ground One

# 25 Submissions for the appellant

5l In his submissions, counsel for the Appellant re-stated the duty of this Court on appeal to reappraise the evidence and then draw its own inferences. He referred to the case of Kifamunte Henry

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- 5 versus Uganda, SC Criminal Appeal No.10 of 1997 in that regard and then hinged his submissions on two segments. Firstly, that the Judge neglected to consider and appraise the defence and secondly, there were glaring contradictions and inconsistencies in the prosecution case. After giving a summary of the evidence of PW3 Christine Utua, PW4 George Mawa, and PWS Christopher Zakore, Counsel presented what he considered as contradictions in the prosecution case. In those submissions he relied on the well followed decisions of Kato Kajubi versus Uganda, SC Criminal Appeal No. 20 2OL4 l2O2Ll UGSC 57 and Alfred Tajar versus Uganda EACA Criminal Appeal No. 167 of 1969 in which the Courts discussed the effect of contradictory or inconsistent evidence on the prosecution case. 10 15 - 6] Mr. Onencan further submitted that the prosecution evidence was destroyed in cross examination but the defence was ignored for no reason. For the latter submission, he specifically pointed to parts of the appellant's defence when he stated that: - UC the uictim tuas planted in his house - There uere four boys and one ofthem he could remember bg face was PW4. - iii. He tuas forced to sign a prepared document. - He was beaten bg UC's father tuho euen took all his belongings and moneg. - l' He staged in police castodg for one uteek and six days. - He did not admit ang liabilitg.

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7] Counsel submitted that, although the prosecution witnesses $\mathsf{S}$ mentioned that the matter was reported to the LC1 who was then summoned by the police, he was never called to testify. Counsel then drew analogy with the case of **Ainomugisha versus Uganda**, SC Criminal Appeal No. 19 of 2015 [2017] UGSC where on appeal, the judgment of this Court was set aside because of the 10 absence of a civic leader and police officers who participated in the matter. Counsel challenged the finding of the trial Judge when he considered the testimonies of the prosecution witnesses as true when the said witnesses were relatives and thus, prone to compromise. He further argued that the medical evidence was 15 inconclusive because the doctor testified that it was not easy to find injuries on UC's genitals because she had last had sex on 25th March 2013, about a month before the examination. He contended therefore that the participation of the Appellant was not proved.

#### Submissions for the appellant on Ground Two 20

8 On ground two, Mr. Onencan contended that the sentence of 23 years' imprisonment awarded to the Appellant by the trial Judge was illegal as well as harsh and excessive. That the Judge neglected to consider the mitigating factors, especially the fact that the Appellant a 26-year-old young man, who had no criminal record was remorseful. Citing the decision of **Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of 2001,** counsel drew out attention to the principles that the Court should follow before interfering with a sentence handed down by the trial Court.

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- 9] In addition, counsel invited the Court to consider the principle of $\mathsf{S}$ consistency in sentencing. For emphasis he cited the cases of Aharikundira Yustina versus Uganda, SC Criminal Appeal No. 27 of 2015 and Katsegazi Januario versus Uganda, Criminal **Appeal No. 0175 of 2014.** That in the latter, the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice 10 Directions (hereinafter Sentencing Guidelines), were used as a guide and in addition, the Court followed earlier decisions to impose a sentence of 15 years for a similar offence. $\frac{15}{2}$ - 10] In conclusion Mr. Onencan invited the Court to revisit the Record to find that the Appellant's conviction was erroneous, and that he 15 was given a harsh sentence. He prayed that we set aside the judgment of the trial Judge and release the Appellant.

### **Submissions for the Respondent**

11] Mr. John Boniface Kulu Idambi counsel for the Respondent supported the learned Judge's decision on both conviction and sentence. In his reply, he submitted that there were no contradictions or inconsistencies in the prosecution case as alleged, and contended that the Appellant's defence was considered. He in particular referred to the Appellant's statement that UC was pushed into his house, which was rebutted by UC 25 who had testified that as she struggled to open the Appellant's door, he grabbed and pulled her to his bed, closed her mouth, jumped on her and then defiled her. Counsel supported the trial Judge's findings that the Appellant's defence was merely evasive 30 with no basis or substance. Counsel also opined that there was

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- 5 no error by the prosecution in not presenting the LC1 Chairman to testify. He considered it the preserve of the prosecution but not the dictates of defence counsel, to make a decision on the best witness to testify. - 121 In response to ground two of this appeal, Mr. Idambi agreed with his colleague on the law in respect of this Court's powers on appeal. He cited the decisions of Kyalimpa Edward versus Uganda, Criminal Appeal No. 1O of 1995 and Karisa Moses versus Uganda, SC Criminal Appeal No. 23 of 2OL6 in that regard. However, he was not in agreement that the sentence was manifestly harsh and excessive. He argued that Mr. Onencan did not demonstrate how the sentence of 23 years' imprisonment was illegal or harsh in view of the fact that the maximum pena-lty for defilement is a death sentence. 10 15 - 131 Counsel in addition argued that one of objectives of sentencing is deterrence. In particular, he cited the Supreme Court decision in Bashasha Sharifversus Uganda, SC Criminal Appeal No. 82 of 2Ol8 where it was held that:

"one of the objectiues of sentencing is deterence. Tte objectiue of deterrence can affect the seueity of the sentence depending on the preuailing circumstances. "

Counsel went on to argue that the facts here indicate that the Appellant who was infected with HIV, proceeded to defile agirl /, below 18 years of age. A, f

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5 141 In conclusion, Mr. Idambi prayed that the appeal be dismissed and both the Appellant's conviction and sentence be upheld.

## Analysis and Decision of Court

15] We have carefully studied the Record, considered the submissions for both sides, as well as the law ald authorities cited therein. A first appeal from the decision of the High Court requires this Court to review the evidence and make its own inferences of law and fact. See: Rule 30(1) (a) of the Rules of Court which is in tandem with the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. 10 of L997, where it was held that on a first appeal this court has a duty to: 10 15

> "...reuiew the euidence of the case and reconsider the mateials before the tial Judge. The appellate court must then make up its own mind not disregarding the judgment appealed from, but carefully weighing and consideing it."

Alive to the above-stated duty and limitations, we shall proceed to resolve the grounds of appeal.

# 2s Ground One

16] In ground one, it is contended that the learned trial Judge never considered the defence presented by the Appellant and then convicted him on prosecution evidence that had major contradictions and inconsistencies. Both counsel provided ample

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authority on the position of the Courts with regard to contradictions and inconsistencies in evidence. It was for example stated in this Court's decision in Candiga Swadick versus **Uganda, Criminal Appeal No. 23 of 2012** as follows:

> "The law on contradictions and inconsistencies is well settled. Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away. *Minor ones, on the other hand, will only lead to rejection of the evidence if they point to deliberate untruthfulness* on the part of the witness."

[Also see Alfred Tajar versus Uganda E. A. C. A Cr. Appeal No. 167] of 1969 (unreported); Sarapio Tinkamalirwe versus Uganda, SC Criminal Appeal No. 27 of 1989 and Twinomugisha Alex and 2 others versus Uganda, SC Criminal Appeal No. 35 of 2002.]

- 17] The Appellant's counsel outlined several pieces of evidence that he 20 considered contradictory. The thrust of his objections hinged on the evidence regarding the actual attack by the Appellant on UC. He out lined the following evidence: - $i$ . PW3 the victim, stated that the Appellant forced her onto the bed and covered her mouth thus preventing her from making an alarm. - PW4 testified that PW3 reported to him that the Appellant ii. promised her everything he would do for her that is why she could not make alarm. - PW3 further testified that PW5 and her mother found the iii. 30 Appellant was still having sex with her.

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- 5 lV. PW5 stated that UC informed them that the reason she could not make a-larm was because the Appellant promised her everything and further stated that he found the victim hiding behind the door. - PW4 testified that UC informed him that the Appellant called her to go and watch a film with him and she went. He got UC hiding behind the door and that is was her first time to have sexual intercourse with the Appellant. - UC testified that she was called by the Appellant to take him water which she did, and then she joined the Appellant to watch a film. PW4 stated that UC informed him that the Appellant called her to go and watch a film with him and she went. v1

UC testified that she was ca-lled by the Appellant to take him water and she did then she joined the Appellant to watch a film. vl1.

181 We have carefully re-considered the evidence of the three prosecution witnesses and found minima-l or no contradiction in their testimonies. It is not true that UC testified that her mother and PW5 found when the Appellant was still having sexual intercourse with her. Her statement was that when the Appellant heard UC's mother and PWS calling out for her, he stood up and dressed up. That testimony was well supported by PW5 who stated that when he entered the Appellant's room, he found UC hiding behind the door. There was also no contradiction in UC's testimony on why she did not raise an alarm. She testified that after the Appellant forced her onto his bed, he covered her mouth

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- 5 to prevent her from making an alarm. Both PW4 and PWS testified that UC explained her silence that the Appellant promised her to give her everything she desired. It is conceivable that the Appellant employed both methods to secure UC's submission. Holding her mouth and making a promise for a reward. It would not be a contradiction that both methods were employed to achieve the illega-l offence of having sexual intercourse with a minor, with or without her consent. 10 - 19] There were also only minor contradictions in the testimonres explaining how UC ended up in the Appellant's house. UC herself testified that after she agreed to the Appellant's request to take him water into his house, she agreed to his other request that they watch a film together. They did so for some time until the Appellant forced himself on her. She repeated the same story to PW4, only omitting to state that she had taken water into the Appellant's house as well. That was a minor contradiction because the evidence that UC was found in the Appellant's house was not rebutted. Both UC and PW5 were clear that both UC and the Appellant were in the same room that she was defiled, and that they were both ordered to remain there until morning. When PW5 arrived, he too confirmed that those two were still in the same room and upon being interrogated, the Appellant admitted having defiled UC. 20 25 - 20] We find no merit therefore in the submission because all the prosecution witness were UC's relatives, this meant that they were unreliable. The offence was committed in a domestic setting, and

- 5 those three people had or received first-hand information about it. Under the Evidence Act they were the best witnesses for the prosecution to prove it. The Judge found them to be credible, and so do we. Again, the argument that the medica-l evidence was inconclusive is rejected. On al3/2014 PF3A a medical report on UC by the Dr. Idoru Joseph Atia was admitted as uncontested document as PE1 under Section 57 Evidence Act, all its contents and conclusions by that officer are regarded as admitted. Accordingly, nothing to challenge in that report can be raised on appeal 10 - 211 Finally, the Appellant presented his defence on oath. He admitted residing in a house near to PWS's homestead and agreed that he was in his house on the fateful night. He stated however that he was asleep when at about 10.00 am, he was woken up by PW5 asking for UC. He informed PW5 that UC was not inside his house. That be briefly stepped out of his house and upon his return, he found UC standing with four boys at his door. He entered and closed his house but the four boys forced the door open and pushed UC inside and she spent the night sitting on a stool, while the Appellant slept on his bed. That the four boys locked the door and kept guard with sticks until morning, and when PW4 returned, he begun interrogating him. That during that interrogation, PW4 and other people removed Shs. i5O,000/= from his pocket, and PW4 specifically took away his property and also demanded Shs. 800,000/= from him as a fine for "spoiling" UC. We find this evidence to be a complete denial to the offence. 15 20 25 30

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22] It is not true that the Judge completely ignored that defence. At $\mathsf{S}$ pages 5 and 6 of his judgment, he was clear that he considered the Appellant's denial as "merely evasive and not based on any" *substance.*" There was no requirement that he repeats the defence as related. He was only expected to consider that defence and show whether it was credible and could rebut what was presented for 10 the prosecution. He did so for he went on to find in his judgment that:

> "Any suggestion that this girl was planted in his room by somebody or agents of this girl's family to frame him up with this offence with the intention of extorting some money from *his is totally farfetched and false. I reject it as such". (sic)*

It was a correct finding because the prosecution evidence had placed the Appellant at the scene of crime with UC. Therefore, the evidence that he defiled her was credible, and thereby, the weak defence could only be rejected by the Court.

therefore unable to find that there were grave $23$ We are contradictions or inconsistencies in the prosecution evidence. The minor slips can be explained by lapse of time and they do not point to untruthfulness. Further, due regard was given to the defence which was found worthless. For that reason, we find no merit in ground one and it fails.

## **Ground Two**

24] The Appellant also considered the sentence of 23 years' 30 imprisonment as manifestly harsh, excessive and illegal. His specific complaint is that the trial Judge sentenced him without $\sqrt{13}$

- 5 considering the mitigating factors. His counsel emphasized that the Appellant a young man of 26 years had no crimina-l record, had family responsibilities and was remorseful. He also corrected the Record that the victim was aged 77 and not 11 yea-rs as stated by the Judge. Respondent's counsel disagreed. In his view, the Appellant failed to demonstrate how the sentence of 23 years' imprisonment was illegal and excessive, especially in view of the fact that the maximum sentence for defilement is death. 10 - 2511 The agreed position of the law is that the powers of this Court to interfere with a decision on sentence are very limited, and each case must be approached with much caution. We may interfere only in cases where it is shown that: - a. The sentence is illegal. - b. The sentence is manifestlg harsh or excessiue. - c. There has been failure to exercise discretion. - d. Th-ere uas failure to take into account a material factor. - e. An error in pinciple taas made.

[See Qgalo S/O Owoura versus R (1954) 21 E. A. C. A. 27O,, Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 1O of 1995; Kamya Johnson Wavamuno versus Uganda, SC Criminal Appeal No. 16 of 2OOO, Kiwalabye versus Uganda (supral, Beinomugisha Mbundu versus Uganda CA Criminal Appeal No. 294 of 2OL9.l

2611 During the allocution proceedings on 18/9/2014, both counsel were given opportunity to were given the opportunity to present

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- 5 10 15 their cases in mitigation and otherwise. It was stated for the prosecution that the Appellant, who had been on remand for one and a half years had no previous criminal record. Counsel contended however that the Appellant was convicted of a very serious offence, a felony that attracts the maximum sentence of death and that this offence is rampant in this area. Counsel continued that the Appellant's reckless conduct is a danger to school going children and that in this case, he interfered with UC's academic life. That he should have re-directed his energies to other positive projects like looking after cattle which was his employment. Counsel considered the offence to be aggravated by the fact that the Appellant who was confirmed to be HIV had seriously endangered UC's health. The prosecution prayed for a sentence of 33 years' imprisonment. - 27] Conversely, it was submitted in mitigation that the Appellant a first offender, was only 26 years old and thus capable of being rehabilitated. Counsel requested the Court to consider that the victim was aged 16 years old, a"borderline" age and also the fact that the medica-l report indicated that her hl,rnen was ruptured long time ago. Counsel also mentioned the period spent on remand. He considered that all those circumstances called for mitigation of the sentence and thus prayed for leniency for his client who he stated was remorseful. The Appellant himself stated that he was a Tanzanian citizen and his family was in Shirinyanga District in Talzania where his child was enrolled in boarding school. That since all his phones and records were taken from him, his parents were not aware of his imprisonment. 25

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28] In his sentencing ruling the Judge found as follows: $\mathsf{S}$

> "*The convict Ndika C. Silvester is convicted of aggravated*" defilement contrary to Section 129 (3) (4) (a) PCA. He is first offender aged about 28 years old to date. He has spent 1 year and 6 months on remand since his arrest. The offence for which he is convicted is very serious. His HIV sero status at *the time he committed the offence was HIV+ Positive. He took advantage of the proximity of his home/house to the parents* of this girl to defile her. The maximum sentence for this offence is death. This girl was aged 11 years at the time. This type of offence is now rampant in this jurisdiction. The accused appears to be remorseful. Taking into account the 1 and 6 months already spent of remand, which period I hereby deduct from this sentence I intended to impose. I sentence the accused/convict to 23 years' imprisonment. Right of Appeal explained." Sgd

18/9/2014

29] It is evident that the Judge took into account the remand period before deciding on a sentence. His decision was made before the Supreme Court decision of **Rwabugande Moses versus Uganda** $25$ SC Criminal Appeal No. 25 of 2014, which had no retrospective effect on all sentences imposed before it. The Judge was therefore not required to make an arithmetic deduction of that period. Going by the decision of Kizito Senkula versus Uganda SC Criminal Appeal No. 24 of 2001, which came before the Rwabugande 30 decision. It was enough for him to appreciate and then account for that period in his judgment which he did. In our view, it was a legal sentence on that account.

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- 5 301 In our view, the Judge also gave equal attention to both the mitigating and aggravating factors. He may have misquoted the Appellant's age and also appeared not to have considered the Appellant's nationality or his professed family circumstances, but those factors alone would not fetter the Judge's discretion. He did take note of the Appellant's remorsefulness before deciding on a sentence. 10 - 311 Again, stating that the victim was aged 11 and not 16 years would be a careless error. However, it would not attract a more lenient sentence since the circumstances of the case indicate that the offence of aggravated defilement was proved beyond reasonable doubt. Similarly, the two-year difference in the Appellant's age was only a minor error which did not result into a miscarriage ofjustice would not result into a more lenient. It is correct for the Appellant's counsel to argue that the Appellant would be classihed as a young man, one who should have been treated with more leniency. Indeed, this Court has previously considered youthful age as a compelling mitigating factor. See for example, Kugonza Kenneth versus Uganda, Criminal Appeal No. 1O9/2O11 in which Kaweesa Ivan versus Uganda, l2o22l UGCA 283, and R vs. Clarke and 2 Others [2O18] EWCA Crim 185, were followed. It still remains a question then whether the sentence was in the circumstance harsh or excessive. - 321 To answer the above question, we would apply the consistency principle elucidated in the decision of Aharikundira Yustina versus Uganda, (supra). It was held by the Supreme Court \*"/.

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- sentencing courts must ensure consistency with previous cases $\mathsf{S}$ that were decided on similar facts. Similarly, this Court has in the case of Ainobushobozi Venancio versus Uganda, CA Criminal **Appeal No. 242/2014** found that although past decisions with regard to sentences do not have the authority of precedents, they do provide a range which ought to be considered for purposes of $10$ achieving some measure of uniformity between like cases. - 33] In addition to the above, this Court and the Supreme Court have on most occasions considered the HIV status of Appellants as a serious aggravating factor, irrespective of their age. We consider that reasonable because in such cases, beyond the apparent physical violations, the victims are exposed to a potentially terminal illness. We will thus consider previous decisions with appellants that were confirmed to be of similar sero status. - [34] In Olara John Peter versus Uganda, CA Appeal Criminal Appeal No. 30 of 2010, this Court declined to interfere with a sentence 20 of 16 years' imprisonment imposed on an Appellant who pleaded guilty to defiling a 14-year-old girl. In **Bonyo Abdul versus** Uganda CA Criminal Appeal No. 7 of 2021, the Supreme Court upheld a sentence of life imprisonment for an Appellant who $25$ defiled a girl of 14 years. In Kayanja Hassan versus Uganda, CA **Criminals Appeal No. 206 of 2021**, this Court upheld a sentence of 22 years and one month for an Appellant who defiled a school girl of 15 years. In Anguyo Siliva versus Uganda, CA criminal **Appeal No. 0038 of 2014,** this Court when following the **Anguyo decision**, reduced a sentence of 27 years to 21 years and 28 days' 30

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- 5 imprisonment for a 32-year-old Appellant who had defiled a girl under the age of 14 years. Yet in Kayanja Hassan versus Uganda, CA Criminal Appeal No. 206 of 2O2L, this Court declined to interfere with a sentence of 22 yearc I month for the same offence by an Appellant aged 25 years. In Tiboruhanga versus Uganda, CA Appeal Criminal Appeal No. 655 of 2OL4, this Court imposed a sentence of 22 yeats on a 3O year old Appellant who pleaded guiity to defiling a 13 year old girl. 10 - 351 We note that the sentencing range in the above similar cases where the Appellants who were a-lso relatively young men and HIV positive, is between 16 years to life imprisonment. We therefore find that the sentence of 23 years' imprisonment imposed on the Appellant is neither harsh nor excessive in the circumstances of this case. We find no reason to interfere with it.

361 Accordingly, we find no merit in the appeal and it is dismissed.

v Dated this \q day of 2024. HON. GEOF KIRYABWIRE JUSTICE OF APPEAL

5 HON. IRENE JUSTICE OF APPEAL 10 15 L LUSWATA OF APPEAL HON.