Nkwasibwe v Uganda (Criminal Appeal 163 of 2016) [2024] UGCA 161 (15 July 2024)

# THE REPUBLIC OF UGANDA

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

*(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)*

#### CRIMINAL APPEAL NO. COA-00-CR-CN-163-2016

NKWASIBWE JOHN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **RESPONDENT** UGANDA ::::::::::::::::

[Appeal against sentence only arising from the decision of the High Court of Uganda at Masaka (Hon. Justice Margaret Tibulya) dated 19<sup>th</sup> May 2016 in Criminal Session Case No. HCT-06-CR-SC-0116 of 2013]

#### JUDGMENT OF THE COURT

#### **Introduction**

$[1]$ The appellant was found by the trial Court to have had forceful sex with his own biological daughter on 07<sup>th</sup> January 2011 who, at the time, was aged 16 years. He was accordingly convicted of the offences of Aggravated defilement contrary to Sections 129(3) & (4) (b) of the Penal Code Act, Cap. 120 and incest contrary to Section 149 of the Penal Code Act, Cap. 120. A sentence of 20 years' imprisonment was imposed for the offence of defilement after taking into account the remand period, and 5 years' imprisonment for the offence of incest. The sentences run consecutively.

# The appeal

$[2]$ The appellant was dissatisfied with the sentence only and, with leave granted by this court, appealed against it on the ground:

> That the learned trial Judge erred in law and fact when he sentenced the Appellant to 25 years which sentence is manifestly harsh and excessive in the circumstance.

# **Representation**

- At the hearing of the appeal, Ms. Joan Ainebyona of M/S Nansubuga, Awero & Co. $[3]$ Advocates appeared for the appellant on State brief, while Ms. Immaculate Angutoko, Chief State Attorney in the Directorate of Public Prosecutions (DPP) appeared for the respondent. The appellant was present in Court. - $[4]$ The parties, with leave of the Court, relied on their written submissions as their legal arguments in support of their respective cases.

# **Analysis**

- $[5]$ From his submissions, the appellant's complaints in the sole ground of appeal are twofold. First, that the trial Court did not consider the young age of the appellant as a mitigating factor. - $[6]$ Second, that the sentences were out of range of the decided cases in matters of a similar nature. Counsel cited several cases where a lesser term of imprisonment was either imposed or confirmed by this court or the Supreme Court in defilement cases: In *Ninsiima* Gilbert Versus Uganda, Court of Appeal Criminal Appeal No.180 of 2010, the convict for defilement was sentenced to 15 years. In Katende Ahamad Versus Uganda, **Supreme Court Criminal Appeal No.61 of 2004, the Supreme Court upheld a sentence** In years for a father who defiled his 9 years' old daughter. In **Ntambala Fred Vs** $\mathcal{G}$ **Uganda, Supreme Court Criminal Appeal No. 34 of 2015, the Supreme Court confirmed** a sentence of 14 years' imprisonment for a father who defiled his 14-year-old daughter.

Counsel argued that as a result of the non-consideration of the appellant's age and the principle of consistency in sentencing, a harsh and excessive sentence was imposed on the appellant. Counsel prayed that the appellant's sentence be reduced to 10 years.

[8] The respondent opposed the appeal and argued that the trial court considered all the material factors while sentencing the appellant. Counsel cited court decisions to show that courts are passing deterrent sentences owing to the rising acts of parents sexually abusing their own daughters. In Kaserebanyi James Vs Uganda, Supreme Court

**Criminal Appeal No. 10 of 2014, the appellant, upon his own plea of quilty, was convicted** of defilement of his 15-year-old daughter by the trial Court, and sentenced to life imprisonment. The sentence was confirmed by the Court of Appeal. While confirming the sentence on the second appeal, the Supreme Court remarked that "the sentence was actually lenient considering the gravity of the offence that the appellant committed."

- In Abingoma Defenzi Vs Uganda, Court of Appeal Criminal Appeal No. 284 of 2016 $[9]$ this court upheld a sentence of 40 years' imprisonment for the appellant who admitted defiling his 10-year-old step daughter while he was HIV positive, and was convicted on a plea of guilty. - $[10]$ The respondent prayed for dismissal of the appeal. - $[11]$ The sentencing proceedings show that the prosecution appealed to the trial court to consider the fact that the appellant was a first offender, and that the victim was his daughter whom he failed to protect. Further that memories still haunt the victim. - On the other hand, the appellant's Counsel prayed for lenience because the convict was [12] still of a young age and capable of reforming. - $[13]$ The learned trial Judge's sentencing order is as follows:

# "SENTENCE

I considered all factors as ought to be considered in the case. The violence exhibited by the accused towards the victim before, during and after the rape is beyond imagination being as it was that he threatened to kill her if she resisted. The fact that she was his daughter, aggravates the situation. I have taken into account the period the accused has been on remand, and I sentence him to 20 years imprisonment for defilement, and 5 years imprisonment for incest. Sentence consecutive. Right of Appeal Explained. MARGARET TIBULYA **JUDGE**

15/06/2016"

From the above record, it was not expressly stated by the trial judge that she specifically $[14]$ considered the appellant's age. She ought to have used more explicit words which specify

and set out the factors she considered instead of using a generic expression "I have considered all the factors as ought to be considered in the case." However, the omission did not occasion a miscarriage of justice.

- As regards the alleged breach of the principle of consistency in sentencing, each case $[15]$ needs to be understood in the context of its peculiar facts. The trial Court considered the fact that the appellant procured sex with his biological daughter aged 16 years using violence before, during, and after the sexual act, and even threatened to kill her. The sentence of 20 years' imprisonment after taking into account the remand period was in line with some of the decided cases of this court. In **Kasule Ibrahim vs Uganda, Court of Appeal Criminal Appeal No.172 of 2018, the appellant was sentenced to 22 years'** imprisonment for defiling his daughter aged 10 years. In **Anyolitho Robert Vs Uganda**, **Court of Appeal Criminal Appeal No.22 of 2012, the appellant who was the paternal** uncle of the victim, a girl aged 14 years, was convicted of the offence of aggravated defilement and sentenced to 18 years' imprisonment. This Court confirmed the sentence on appeal. - $[16]$ As regards the offence of incest, the Supreme Court in **Sewanyana Vs Uganda**, **Supreme Court Criminal Appeal No.19 of 2006, upheld the sentence of 19 years'** imprisonment for a father who committed incest on his biological daughter. - Bearing in mind the circumstances under which this Court can interfere with the discretion $[17]$ exercised by a trial Judge in sentencing, it is our finding that the sentences meted out by the trial Judge are neither harsh nor manifestly excessive in the circumstances of this case.

#### $[18]$ **DISPOSITION**

- Milor<br>Milor - 1. The appeal against sentence is dismissed. - $2.$ The sentences imposed by the High Court are hereby upheld.

# We so order.

Dated and delivered at Masaka this 15<sup>th</sup> day of July 2024.

**HELLEN OBURA**

**Justice of Appeal**

$\frac{20}{024}$ MUZAMIRU MUTANGULA KIBEEDI

...

**Justice of Appeal**

$\mathcal{L}$

**MOSES KAWUMI KAZIBWE**

**Justice of Appeal**