Nyeko v Robert (Criminal Appeal 658 of 2015) [2025] UGCA 11 (24 January 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

## CRIMINAL APPEAL NO.0658 OF 2015

(CORAM:Fredrick Egonda-Ntende, Tibulya,Kazibwe Kawumi. JJA)

#### **BETWEEN**

#### **NYEKO ROBERT** 10

#### APPELLANT

#### AND

#### **UGANDA**

### RESPONDENT

(An appeal from the decision of Musene J delivered at Gulu on 20th August 2014)

### JUDGMENT OF THE COURT

#### Introduction

The appellant was on his plea of guilty convicted and sentenced to 20 years' imprisonment for the offence of aggravated defilement contrary to section 129 (3) and (4) (b) of the Penal Code Act. The particulars of the offence were that the appellant, on the 21st day of 20 December 2012, at Pubit East village in Nwoya Distrist, being a person infected with HIV virus, performed a sexual act on AG, a girl who was 7 years old.

The facts accepted by the appellant in the court below were that the appellant was a person infected with HIV and co-habited with the 25 mother of the 7 years old victim. The victim as "AG" stayed in the same house with them.

On 31st October 2012, the victim's mother went out to look for casual work to sustain the family. The appellant took advantage of her absence to defile the victim who reported to her mother as soon as

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$\mathsf{S}$

she returned home. The matter was reported to Police and the $\mathsf{S}$ appellant was arrested.

The victim was examined and found to be 7 years old with a recently ruptured hymen. The appellant was examined and found to be 27 years old with a sound mind.

The appellant admitted his guilt as soon as the charge was read to him 10 and he was sentenced to 22 years. The court deducted the 2 years he had spent on remand and he was thus ordered to serve 20 years' imprisonment from 20th August 2014. Dissatisfied with the sentence, the appellant lodged this appeal. This court granted him leave to appeal against sentence only. 15

# Ground of Appeal.

That the learned trial Judge erred in law and fact when he sentenced the appellant to twenty years' imprisonment which sentence is manifestly harsh and excessive in the circumstances.

#### **Representation and Submissions of Counsel.** 20

Mr. Ogen Rwot Simon Peter represented the appellant while Ms. Caroline Marion Acio, a Chief State Attorney in the Office of the Director of Public Prosecutions assisted by Mr. Owor Lewis a State Attorney represented the respondent.

Counsel filed submissions which with leave of the court were adopted 25 as their final arguments in the determination of the appeal.

# Submissions by Counsel for the Appellant.

Counsel argued that the trial court did not consider the mitigating factors in favour of the appellant but delved into extraneous circumstances which were not on the court record. It was submitted 30 that the appellant was a first time offender aged 27 at the time the offence was committed which the court should have considered to impose a lenient sentence.

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It was also pointed out that the trial court did not take into account $\mathsf{S}$ the need for parity in sentencing as required by paragraph $6(c)$ of **The** Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. Aharikundira Yustina V Uganda [2018] UGSC 49 was cited for the proposition that parity in sentencing should be exercised by courts. 10

In support of the submissions for the court to reconsider the sentence imposed, Counsel cited Ocen Geoffrey v Uganda [2024] UGCA 97 wherein a sentence of 17 years was considered appropriate. The Appellant was 37 years old and HIV positive while the victim was 4 years old.

The court was further referred to Mwebaza Ivan v Uganda, [2020] UGCA 2110 in which this court reduced a sentence of 32 years imprisonment to 17 years. The appellant was 32 years old and HIV positive while the victim was 9 years old.

The Court was urged to set aside the sentence imposed at the trial and 20 substitute it with 5 years' imprisonment.

# Submissions by Counsel for the Respondent.

It was argued that the sentence imposed by the trial court was too lenient and had to be enhanced on the basis of the cross appeal the respondent filed.

Counsel submitted that The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 placed the starting point for aggravated defilement at 35 years and the sentencing range at 30 years up to death hence the 20 years' imposed by the trial Court

30 was within the permitted range.

It was argued that the trial Judge considered all the aggravating and mitigating factors before determining the sentence. Counsel argued that the court failed to take into account the age difference between

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the appellant and the victim which resulted into the sentence imposed $\overline{5}$ being lenient.

The Court was further urged to consider that the appellant wielded authority over the victim since he co-habited with her mother and abused the trust the mother had in him to protect the victim.

It was submitted that it was as an aggravating factor missed out by the 10 trial court while sentencing the appellant which calls for enhancement of the sentence.

The respondent submitted that the sentence imposed by the trial court should be enhanced to life imprisonment. Counsel for the

respondent cited Wasswa Stephen V Uganda, CACA No.102 of 2017 15 [2023] UGCA 181 where the court enhanced a sentence imposed by the trial court in a case of Kidnap with intent to murder from 44 years to life imprisonment.

Reference was also made to Bachwa Benon v Uganda, CACA No.869

of 2014 (unreported) in which the appellant who was cohabiting with 20 the victim's mother had his sentence enhanced to life imprisonment on appeal. The victim was 10 years old and the appellant pleaded guilty to the charge.

Counsel further drew the attention of the court to Bonyo Abdul v

Uganda, SCCA No.07 of 2011 (unreported) in which the court upheld 25 life imprisonment for the appellant. The victim was 14 years old and the appellant was HIV positive.

The respondent noted that available statistics from the Uganda Police Force show that there is an increase in the number of cases involving accused persons with HIV sexually assaulting children. It was 30 submitted that deterrent sentences should be handed out to deter would be offenders from committing the offence.

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In the alternative it was argued that the court can enhance the 5 sentence by imposing one of more than the 20 years given the circumstances in which the offence was committed. The court was urged to dismiss the appeal and allow the cross appeal.

## Reply to the cross appeal.

Counsel submitted that a sentence can be enhanced when it is 10 demonstrated that there are peculiar circumstances to justify the enhancement which do not exist in this appeal. The factors necessary for the court to consider before imposing life imprisonment as laid out in the Sentencing Guidelines were also not existent in this appeal it 15 was argued.

The appellant was not part of a gang, he was a first time offender and it was not proved that he knew his HIV status before committing the offence. Counsel noted that all factors based on which a life sentence can be considered under paragraph 23 of the Sentencing Guidelines were not at play in the commission of the offence for which the Appellant was convicted.

## Analysis.

As a first appellate court, it is our duty to re-appraise all evidence that was adduced during the trial and come to our own conclusions on the facts and the law while making allowance for the fact that we neither 25 saw nor heard the witnesses testify. (See Rule 30(1)(a) of The Judicature (Court of Appeal Rules) Directions, SI 13-10, Kifamunte Henry V Uganda, SC Criminal Appeal No.10 of 1997 [1998] UGSC 20; Bogere Moses &Another V Uganda, SC Criminal Appeal No.1 of 1977

[1998] UGSC 22. 30

> It is also established law that an appellate court will only alter a sentence imposed by the trial court if it is evident that it acted on a wrong principle, or overlooked some material factor, or if the sentence

is manifestly excessive or too low in the circumstances of the case. See $\mathsf{S}$ Kyalimpa Edward V Uganda. SC Criminal Appeal No.10 of 1995.

We shall be guided by the above principles in the determination of the appeal.

- It was argued that the trial court did not take into account the 10 mitigating factors in favour of the appellant but instead considered extraneous circumstances which were not on the court record. Counsel submitted that the trial court did not consider that the appellant readily pleaded guilty, was a first time offender, and a young man of 27 years at the time he committed the offence. 15 - We found it necessary to reproduce the relevant excerpt from the

sentencing order made by the trial Judge;

"Mr. Walter Ladwar has correctly submitted that some leniency be exercised as the convict is a first offender who has readily pleaded guilty. However, each case has to be treated in its own circumstances. It is very unfortunate that after a trans night sexual marathon with the mother of the victim, the convict turned to the young girl aged only 7 years.

The convict should have either followed the mother if he was still in need and helped himself in the nearby bush or waited to do it immediately after which most men do.

Alas, he forcefully performed sexual intercourse on 30 a young, unsuspecting innocent child of 7 years. He was HIV positive. That was bad and cruel and a signal has to be sent to the public that the system of justice will not encourage such behaviour.

5 So instead of 22 years' imprisonment, I subtract 2 years spent on remand and, do hereby sentence you to 20 years' imprisonment."

While submitting in aggravation of the sentence to be imposed by the 10 trial court, the State Attorney brought out the fact of the appellant being a first time offender, defilement being a rampant and his age of 27 yeats compared to the victim's 7 years at the time she was defiled.

The State Attorney also remarked about the appellant,s insult to the mother of the victim with whom he cohabited by defiling her daughter rs and the intention to infect her with HlV.

At the trial counsel for the appellant submitted that the appellant is a first time offender. Counsel further submitted that the 30 years proposed by the State Attorney would be beyond the country,s life expectancy and would not serve the course ofjustice.

- 20 We noted from the sentencing order that the aspect of the appellant being a first time offender was noted but disregarded when arriving at the sentence of 22 years. The court did not also consider the age of the appellant either as a mitigating factor or an aggravating one considering the age of the victim. The fact of the guilty plea by the - zs appellant was also ignored by the court.

The learned trial judge went on a trip of imagination of what was supposed to have occurred the night before the offence was committed between the appellant and the mother of the victim which was no underpinned by facts before the court. This was entirely

30 inappropriate to the sentencing process and no doubt wrongly influenced the judge to arrive at the sentence he did. He considered matters that he ought not to have considered.

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5 The trial court Iaid emphasis on the appellant's abuse of the trust the victim's mother had in him and his failure to control his sexual desires which did not form part of the record and amounted to conjecture in the sentencing order. Unfortunately, the trial court leaned more on the aggravating factors and did not accord due weight to the mitigating factors.

We find that the failure by the trial court to consider the fact of the appella nt being a first tim e offend er; his age a n d th e plea of gu ilt wh ich pointed to his being remorseful; and the trial court's allusion to imaginary facts rendered the sentence imposed harsh and excessive.

lnvoking the powers of the court under Section 11 of the Judicature Act, the sentence of 22 years imposed by the trial court is set aside. An appropriate sentence shall be imposed by this court. 15

Section 11 of the Judicature Act provides as follows;

"ll. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.,,

The respondent cross-appealed for the imposed sentence to be enhanced to life imprisonment or to more than 22 years in the alternative. The submission is premised on arguments that the trial court did not consider the age difference between the appellant and th e victim as a n aggravating factor in arriving at the imposed sentence.

It was further submitted that since the appellant cohabited with the mother of the victim, he wielded authority over her. Additionally, the

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5 appellant was HIV positive. The court should consider both factors to enhance the sentence argued counsel for the respondent.

We reiterate that sentencing is a discretion of the trial court which the appellate court will not readily interfere wtth save where the sentence imposed is excessive or too low given the clrcumstances of each case.

The court can also interfere with the imposed sentence where a materialfactor was overlooked by the trialcourt. 10

For the sentence imposed to be enhanced, there must exist peculiar circumstances ignored by the trial court or where what was imposed was too low as to amount to a miscarriage of justice. lt is true that the

appellant was 20 years older than the victim and was cohabiting with her mother. 15

That would not in our view justify the enhancement of the sentence imposed by the trial court to life imprisonment. The fact of the appellant being HIV positive without evidence to prove that he knew his sero- status at the time he committed the offence would equally not be a reason for enhancing the sentence.

Paragraph 2aQl ol the Sentencing Guidelines requires courts to consider the factors aggravating or mitigating a death sentence when determining whether life imprisonment should be imposed.

- The only factors applicable to the instant case are that the appellant wielded authority over the victim, she was vulnerable be ing a ch ild and the appellant's conduct had an impact on the victim,s mother. These factors are however outweighed by the appellant,s plea of guilt, his youthful age and be ing a first time offender to deny the court any firm 25 - grounds for enhancing the sentence. 30

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5 Our decision is also backed by the uncontroverted submission by Counsel for the appellant to the effect that the victim was not infected with HlV. We thus find no basis for enhancing the sentence imposed by the trial court

We have considered that the appellant was a first time offender of 27 years and he pleaded guilty to the offence. We resentence him to 15 years'imprisonment.

We shall deduct the 2 years he spent on remand, he shall serve 13 years from 2Ch August 2014 the date o which he was convlcted

Signed and delivered this..\*.day ot 2025.

Fredrick Egonda-Ntende Justice of Appeal

ibulya Justice of ApPeal

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Moses Kazibwe Kawumi Justice of Appeal