Ocen v Uganda (Criminal Appeal 168 of 2020) [2025] UGCA 101 (10 April 2025)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT ARUA

[Coram: Geoffrey Kiryabwire, JA; Irene Mulyagonja, JA; Eva K. Luswata, JA]

# CRIMINAL APPEAL NO. OI68 OF 2O2O

(Arising from High Court Criminal Session Case No. 0157 of 2010 at Arua)

## BETWEEN

OCEN ROBERT APPELLANT

### AND

I. IGANDA RESPONDENT

(An Appeal from the Judgment of the High Court of Uganda Akiiki Kiiza, <sup>J</sup> Delivered on 20rr' August 2012)

## JUDGMENT OF THII COURT

#### Introduction

The Appellant was indicted and convicted of the offence of Aggravated Defilement C/S 129(3) and 4(b) of the Penal Code Act. He was sentenced to 24 years' imprisonment.

## The Facts

The Appellant on the lgth November 2010 at Lapainat Koro Sub county in Gulu District being a person infected with Human Immune Deficiency Virus (HIV), performed a sexual act on a girl below the age of l4 years. The Appellant denied the charge but was tried, convicted and sentenced.

### Decision of the Trial Court

The Trial Judge sentenced the Appellant to 24 years' imprisonment. Dissatisfied, the Appellant appealed against conviction and sentence on the following ground: -

That the leamed Trial Judge erred in law and fact when he sentenced the Appellant to 24 years' imprisonment which is illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage ofjustice.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Mr. Onen Chan of Donge and Co. Advocates and the Respondent by Kyomuhendo Joseph, a Chief State Attomey.

Counsel for the Appellant applied for leave of Court to appeal sentence only. Counsel for the Respondent did not oppose the application. Leave to appeal sentence only was granted by Court.

The parties sought the leave of court to adopt their written submissions as their legal arguments in this Appeal which was granted.

#### Powers of the Appellate court

This is a first Appeal. We are alive to the duty of a first appellate Court which was espoused in the case of Kifamunte Henry v Uganda SCCA No.l0 of 1997 to reappraise all the evidence at the trial and come up with our own inferences of law and fact.

Since the appeal is against sentence only, we are alive to the decision in Ogalo s/o Owoura v R (1954) 2l EACA 270. On the relevant principles to interfere with sentence, the East African Court ofAppeal in that appeal held that: -

"... The principles upon which the appellate court will oct in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a sontewhat dffirent sentence and it v,ould not ordinarily interfere u,ith the discretion exercised by lhe trial Judge unless as was said in James v R, (1950) 18 EACA 147, "il is evident that the Judge has also acted upon wrong principle or overlooked some material factor. " To this we would also add a third criterion, namely, that the sentence is manifestly excessive in viev, of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gratest o/fence attracting less severe penalties. Courts also hate added another principle ofconsistency in terms of equality before the law so lhat the offences committed under sinrilar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts ore a relevant guiding actor ... "

We shall apply the above principles to this appeal.

Ground: That the lcarncd Trial .ludge crred in law and facts when he sentenced the Appellant to 2.1 years' imprisonnrent rvhich is illegal, nranifestly harsh and excessive in the circumstances thereby occasioning a miscarriage ofjusticc.

## Submissions of Appellant

Counsel for the Appellant framed two issues under the single ground:

- Whether the sentence of 24 years' imprisonment imposed on the Appellant was illegal, harsh and excessive in the circumstances? - Whether the sentence can be set aside? 2

Counsel submitted that sentencing is a discretionary power to be exercised judicially based on settled principles, the Court must take into account the sentencing factors within the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice Directions) 2013. Furthermore, that the Trial Judge while sentencing at Page 34 stated: -

"...the accused is allegedly a first offender; he has been on remand for <sup>2</sup> years. I take this period into consideration while sentencing him. He has prayed for leniency and he is a young man. Hov,ever, he committed a serious offence. Maximum sentence is death. The victim was only 9 years old. Accused was HIV positive hence exposed her to HlV, putling into consideration, I sentence him to 24 years' imprisonment... "

Counsel therefore argued that the sentence was contrary to the Sentencing Guidelines as the Trial Judge did not take into consideration mitigating factors, such as the accused being young, a first time offender capable of reform, repentant and orphaned.

Addressing the second issue, counsel argued that under Section 34 ofthe Criminal Procedure Act, the appellate Court may reverse the finding and sentence and acquit the Appellate. That in order to succeed in an appeal against a sentence, the court must be satisfied that the sentence is illegal or manifestly too low or manifestly

4l

excessive. Counsel for the Appellant submitted that the sentence of 24 years was manifestly excessive and prayed that the said sentence should be substituted with <sup>a</sup> sentence of l2 years covering his period in detention and he be released from prison.

### Submissions of Respondent

Counsel for the Respondent submitted that the 24 years that were imposed on the Appellant is neither harsh nor excessive given the circumstances under which the offence was committed. The learned Trial Judge was justified in sentencing the Appellant to a 24-year imprisonment considering both aggravating and mitigating factors. The victim was only 9 years old and the Appellant's actions subjected her to injuries and pain. The Appellant also exposed the victim to the risk ofcontracting HIV. Therefore,lhe 24 years was imposed legally and should be maintained.

#### Findings and Decisions of Court

We have considered the submissions of both Counsel for which we are grateful.

Under this ground we addressed ourselves to the question of whether the sentence of 24 years' imprisonment imposed on the Appellant is illegal, harsh and excessive in the circumstance. We shall start by recalling the circumstances under which an appellate court can set aside a criminal sentence.

### In Sembusi Badru Vs Uganda CACA No. 12 of 1996 this Court also held that:

"the appellant was aged 20 years at the lime he was convicted and sentenced. He had been on remand for 2 years, a fact the trial Court did not take into account. We think a sentence of 7 years would have been appropriate. ll/e accordingly allow the appeal againsl the sentence. The sentence of l0 years and 6 strokes is set aside. We substitute lherefore a sentence of 7 years' imprisonment. "

On the issue of legality of the sentence, the Trial Judge held: -

"... He has been on remand for 2 years. I take this period into consideration *while sentencing him...*"

In the case of **Rwabugande Moses V Uganda SCCA N0.25** of 2014 where it was held that a sentence arrived at without taking into consideration the period spent on remand is illegal and that such a determination of this period is of necessity arithmetical.

We have also addressed ourselves to other matters where the perpetrator defiled the victim while HIV positive. In the case of **Katuramu v Uganda (Criminal Appeal** 114 of 2016) [2024] UGCA 245 (4 September 2024), the Appellant who was HIV positive was convicted of Aggravated Defilement and sentenced to 44 years' imprisonment. On appeal, the sentence was reduced to 20 years, 1 month and 23 days from the date of conviction.

Further, in Ocen v Uganda (Criminal Appeal 19 of 2022) [2024] UGCA 97 (3) May 2024), the Appellant was HIV positive was convicted for the offence of Aggravated Defilement and sentenced to 20 years in prison. This Court upheld the sentence of 20 years, and considered the time spent on remand.

Further in Okwairwoth v Uganda (Criminal Appeal 307 of 2017) [2023] UGCA **248 (12 June 2023),** the Appellant who was found to be HIV positive was convicted of the offence of Aggravated Defilement and sentenced to life imprisonment. On appeal, he was sentenced to 18 years' imprisonment, which was reduced to 14 years and five months after deducting the time spent on remand.

Further in Bwenywanira Emmanuel v Uganda, CA Criminal Appeal No. 120 of **2018**, the Court considered the fact that the Appellant a 47-year-old man who was HIV positive defiled a four-year-old child and the child was infected. The Justices declined to set aside a 32 year and 6-month sentence.

This Appeal, was decided on the $20<sup>th</sup>$ August 2012, before the case of **Rwabugande** Moses (Supra) which was decided on 3<sup>rd</sup> March 2017. Therefore, this Appeal having been decided earlier, the period spent on remand need not be determined arithmetically (Abel Ashman V Uganda Supreme Court Criminal Appeal No.66

6 | Page

of 2016). We therefore find that the trial Judge in determining the final sentence of the Appellant took into account the period that the Appellant spent on remand.

We resolve this ground in the negative.

# **Final Decision**

Having held as we have on the above issues the Appeal fails and is accordingly dismissed.

### We so order.

Dated at Kampala. This. Day of April 2025. Hon. Mr. Justice Geoffrey Kiryabwire. JA Tixon Hon. Lady Justice Irene Mulyagonja, JA Hon. Lady Justice Eva K. Luswata, JA