Ocen v Uganda (Criminal Appeal 19 of 2022) [2024] UGCA 97 (3 May 2024)

#### THE REPUBLIC OF UGANDA

#### THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: *Kiryabwire*, *Mulyagonja* & *Luswata*, *JJA*)

### CRIMINAL APPEAL NO. 019 OF 2022

#### **BETWEEN**

10 OCEN GEOFFREY ::::::::::::::::::::::::::::::::::::

#### **AND**

**UGANDA :::::::::::::::::::::::::::::::::::**

# (Appeal from the Judgment of the High Court sitting at Gulu in Criminal Session Case No. 324 of 2019 delivered by Chemutai, J on $2^{nd}$ December, 2021)

#### **JUDGMENT OF THE COURT**

### **Introduction**

This appeal arose from the decision of the High Court of Uganda $1\overline{1}$ 20 in which the learned trial Judge convicted the appellant of the offence $\quad\text{ of }\quad$ aggravated defilement, contrary to **Sections** 129(3)(4)(a)(b) of the Penal Code Act Cap. 120 and sentenced him to 17 years three months and 11 days' imprisonment. It was stated in the indictment that on 8<sup>th</sup> February 2019, at Atocan $25$ Village in the Nwoya District, the appellant who was HIV positive, had unlawful sexual intercourse with a girl who was at the material time aged 4 years old. We shall refer to the child as AM.

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- <sup>5</sup> 2l The facts accepted by the trial Court are that the appellant who worked as a security guard at the telecommunication mast at Alero, rented a house within the compound of AM's parents. At about 7:OO am on 8/2/2019, AM's mother Apio Mary went to the garden leaving her in their home playrng with other children. When Apio returned home at 2:00pm, AM excused herself to go and ease herself but when she returned, she reported to Apio that her buttocks were painful. She further reported that during Apio's absence, the appellant led her by the hand to his bed and oseduced her". When Ms. Apio checked AM, she observed a white substance and injuries on her vagina. Ms Apio informed her aunt and sister about what she had heard and seen and the matter was reported to the Alero Police Post where all three women recorded statements. The appellant was arrested and AM was referred to Anaka Hospital for medical examination. 10 - 3l The appellant was indicted, tried and convicted of aggravated defilement. He was on 2"d December 2021, sentenced to 17 years and 1 1 days' imprisonment. He lodged an appeal against the sentence stating in his memorandum of appeal that: 20

The leanted. trtal Judge ened ln laut and, fact utlen he sentenced. the Appellant 20 (Twentg) gears lmprlsonment uhlch sentence ls harsh and excesslae ln the clrcum,stqnce of the case."

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#### 5 Representation

4l At the hearing of the appeal, the appellant was represented by Mr. Isaac Jurugo who held the brief of Mr. Richard Aciga. The respondent was represented by Mr. Sam Oola, Senior Assistant DPP. Both counsel filed written submissions and authorities which we have considered together with other relevant authorities when arriving at our decision.

## Submissions for the Appellant

15 20 25 5l In his submissions, Mr. Aciga re-stated the position of the law with regard to the powers of the Court to interfere with a sentence imposed by the trial court. He referred to the case of Ssekandi Muhammed versus Uganda, CA Criminal Appeal No. 364 of 2OLG in that regard. In support of the ground that the Judge imposed a harsh and manifestly excessive sentence, counsel referred Court to what was stated in mitigation by defence counsel. Mr. Aciga submitted in particular that the appellant who was then aged 37 years was HIV positive and thus, sickly and with limited chances of leaving the prison alive which would impair his desire as a parent to guide his children. He contended then that the sentence of 20 years' imprisonment was in the appellant's circumstances akin to life imprisonment.

6l Mr. Aciga submitted further that the learned trial Judge never considered the principle of parity and consistency while sentencing the appellant. After citing the decision of Ssekandi Muhammed versus Uganda (supra), he drew Court's attention to

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<sup>5</sup> previously decided cases with similar facts. He cited for example Nisiima Gilbert versus Uganda, CA Criminal Appeal No. 18O of ?OLO, Binrngi Moses versus Uganda, CA Criminal Appeal No.177 of 2o14, Owinji William versus Uganda, CA Criminal Appeal No. 1O6 of 2o13.. They indicate a sentencing range of twelve to fifteen years' imprisonment.

7l In conclusion Mr. Jurugo invited Court to set aside the sentence of 20 years' imprisonment imposed by the learned trial Judge and substitute it for a sentence of 15 years'imprisonment.

## Submissions for the Respondent

8l Mr. Sam Oola, counsel for the respondent opposed the appeal. In his reply, he referred to the sentencing order and commitment warrant then argued that the appellant was sentencedto 17 years, 3 months and 11 days in prison and not 2O years as alleged by Mr. Jurugo. He however agreed with his colleague on submissions with regard to the powers of this honorable court with regard to appeal against sentence. He emphasized in addition that sentencing is a discretionary power and in that regard referred the Court to the decisions in Rwabugande Moses Versus Uganda, SC Criminal Appeal No. 25 of 2OL4, Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 1O of 1995, Kamya Johnson Illavamuno versus Uganda, SC Criminal Appeal No.16 of 2OOO and Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of 2o,o1. / cua Or- <sup>r</sup>

- <sup>5</sup> 9] Mr. Oola considered that the sentence imposed was light given the fact that the appellant aged 35 years and HIV Positive, defiled AM a four-year-old child and thus subjected her to the risk of HIV infection. He argued further that the learned trial Judge considered both the aggravating and mitigating factors before deciding on a sentence and thus, that sentence was neither harsh nor m€urifestly excessive in the circumstances. Mr. Oola made reference to previously decided cases in which this Court and the Supreme Court had either confirmed or enhanced sentences imposed at different trials for the offence of aggravated defilement. He for example referred to Ouma Ben alias Ofwono versus Uganda, SC Criminal Appeal No. 20 of 2o16, and Kikomeko Issa versus Uganda, CA Criminal Appeal No. OOO2 of 2021. In the latter this Court upheld a sentence of 22 years and one months' imprisonment for an appellant who had defiled a child who was four years old. He likewise cited the decision of Baliyendera Simeo versus Uganda, CA Criminal Appeal No. 1O9 of 2OL3, where this Court rejected an appeal filed against a sentence of 22 years' imprisonment for an appellant who had sexual intercourse with a three year old girl. 10 15 20 - 10] In conclusion, Mr. Oola submitted that the appellant had not raised any reasons to persuade the Court to interfere with the sentence imposed against the appellant. He prayed for dismissal of the appeal.

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### <sup>5</sup> Analysis and Decision of Court

- 111 We have carefully studied the record, considered the submissions for both sides, as well as the law and authorities cited therein. The main contest against the decision of the trial court is with the sentence imposed. It settled law that the powers of this Court to interfere with a decision on sentence are quite limited and each case must be approached with its peculiar facts. Generally, the Court may interfere only in cases where it proved that: - a. The sentence is illegal. - b. The sentence is manifestlg harsh or excessiue. - c. There has been failure to exercise discretion. - d. There was failure to take into account a material factor. - e. An error in principle.

See Ogalo S/O Owoura versus R (19541 2L 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, SCCA No. 143 of 2OO1, Beinomugisha Mbundu versus Uganda, CA Criminal Appeal No. 294 of 2OL9, Wamutabanewe Jamlm versus Uganda, SC Criminal Appeal No. 74 of 2OO7

- Alive to the above stated duty and limitations, we shall proceed to resolve the one ground of appeal preferred against sentence. - L21 We accept the submission of Mr. Oola that according to the record, the trial Judge imposed a sentence of 17 years three months and <sup>1</sup>1 days' imprisonment after deducting the period spent on

- remand. After narrating the mitigating factors, Mr. Aciga $\mathsf{S}$ submitted that the sentence was both harsh and excessive. In addition, he contested the Judge's failure to apply the consistency principle before deciding on an appropriate sentence. His colleague discounted both arguments and insisted that the sentence was in the circumstances a light one and that it should 10 be maintained. - $[13]$ We consider as correct the submission that an appellate court may interfere with a sentence that is shown to be manifestly harsh and excessive. However, since the sentencing function always is a matter of the discretion of the trial Judge, we may not interfere only for the reason that we may have decided on a different sentence. See for example **Rwabugande Moses versus Uganda**, SC Criminal Appeal No. 25 of 2014 citing Kyalimpa Edward **versus Uganda (supra)** a decision to interfere should only be reserved for deserving cases. In this particular case we are guided by a previous decision of this Court in **Ndyabalema Fulugensio** versus Uganda, CA Criminal Appeal No. 126 of 2016. It was held that:

"There is a high threshold to be met for an appellate court to" intervene with the sentence handed down by a trial Judge on grounds of it being manifestly excessive. Sentencing is not a *mechanical process but a matter of judicial discretion* therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence is manifestly excessive, in the circumstances. In circumstances where the learned trial Judge appeared to only consider aggravating factors, a

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<sup>5</sup> sentence excessiue" of 30 Aears maA be considered manifestly

10 l4l We have confirmed that both counsel were permitted to make submissions before a sentence was imposed. It was stated for the prosecution that although the appellant had no previous criminal record, he was HIV positive and defiled a four-year-old girl. The prosecutor considered this a premediated crime and thereby prayed for a deterrent sentence. In response, it was offered in mitigation that the appellant was a first time offender, was a family man and the bread winner. His counsel who considered him as being remorseful, prayed for a lenient sentence. When pronouncing sentence, the Judge made a brief ruling as follows:

> "I haue carefully considered the Aggrauating and Mitigating factors in this case. The aca,tsed person was 35 years and HIV positiue. The uictim u)as 4 years old.

> AccordinglA, I sentence the acansed person to a jail term of 20 Aears imprisonment. The time he has spent on remand should be deducted from the sentence, i.e. 2 Aears, 8 montLus and 19 days.

> Hence, he uill serue 7 7 gears, 3 months and 7 7 dags' imprisonment.

Right of appeal explained to the conuict.

Hon. Justice Tom Chemutai.

Judge

2nd December, 2021"

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- <sup>5</sup> 15] Although the Judge mentioned that he had considered both the aggravating and mitigating factors, his ruling did not reflect that finding. He repeated some of the aggravating factors without making any reference to what was offered in mitigation. This was an error and made without reference to paragraph 6(e), and paragraphs (a), and (g) of the 2"d Schedule of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions a1l which require that certain mitigating factors, that apply to the appellant here, ought to be considered before sentencing. Even so, we would still be required to confirm whether that omission resulted into a miscarriage of justice, for only then will the justice of the matter require that the sentence is set aside. 10 15 - 161 One way of determining whether the sentence was harsh or excessive, would be to apply the principles of 'parity and consistency', which we note the trial Judge omitted to consider when sentencing the appellant. The principle of consistency is well elucidated in Guideline 6 (c) of the Sentencing Guidelines which provides that:

oEuery Court shall when sentencing an offender take into account the need for consistence uith appropriate sentencing leuels and other means of dealing utith offenders in respect of similar offences committed in similar circttmstances."

I7l It for this reason that the Supreme Court in its decision of Aharikundira Yustina Versus Uganda, Criminal Appeal No. 27 of 2015 advised that:

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"it is the Court while dealing with the appeals regarding" sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation."

- The consistency principle entails cross referencing with previously $18$ decided cases with the same offence and as near as possible, the same facts. However, since past decisions do not have the authority of precedents, the principle is not a rule of law, but it is now an established good practice of the Courts who consider it a useful tool for achieving some measure of uniformity between some cases. See: Kaparaga & Another versus Uganda, CA Criminal Appeal No. 538 of 2016 [2023] UGCA 212 and Ainobushobozi Venancio versus Uganda, CA Criminal Appeal No. 242 of 2014. To that end, both counsel cited previous decisions of aggravated defilement cases, as a guide for this Court when considering the merit (or lack of it), of the appellant's claim that the sentence was harsh and excessive. - 19] In addition to those, we have also looked up similarly decided cases for example in **Tiboruhanga Emmanuel versus Uganda, CA** Criminal Appeal No. 0655 of 2014, this Court held that the sentences approved by this Court in previous aggravated defilement cases, without additional aggravating factors, range between 11 years to 15 years. This Court and the Supreme Court have on most occasions considered the HIV status of an appellant as a serious aggravating factor, irrespective of their age, and we

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- <sup>5</sup> are bound by the decisions. We consider that beyond the apparent physical violations, the victims are exposed to a terminal illness. We will thus consider previous decisions in respect of the appellants that were confirmed have similar sero status. - 2Ol In Bwen5rwanira Emmanuel versus Uganda, CA Criminal Appeal No. 12O of 2O18, the Court considered the fact that the appellant a 47 year old man who was HIV positive, defiled a four year old child with HIV. Citing the age difference between them and the fact that the child was as a result infected, the Justices declined to set aside the sentence of 32 years and 6 months. In Anguyo Siliva versus Uganda, CA Criminal Appeal No. OO38 of 2(J14, this Court reduced a sentence of 27 years to 2l years and 28 days'imprisonment for a 32-year-old appellant who had defiled a girl under the age of 14 years. In Ederema Tomasi versus Uganda, CA Criminal No. 554 of 2o^14, this court, found <sup>a</sup> sentence of 18 years'imprisonment to be appropriate for an appellant who was confirmed to be HIV positive, and thus could have infected the victim. 10 15 20 - 2Ll We note that the sentencing ra.nge in cases where the appellants who were also relatively young men and HIV positive, is between 16 years to life imprisonment. We therefore find that a sentence of 17 years three months and 1 1 days'imprisonment imposed on the appellant, is within the generally agreed sentencing range. It is neither manifestly harsh nor excessive and we find no reason to interfere with it.

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22] Accordingly, we find no merit in the appeal and it is dismissed. $\mathsf{S}$

3<sup>rd</sup> day of May 2024. Dated at Arua this... $10$ HON. GEOFFREY KIRYABWIRE **JUSTICE OF APPEAL** $15\\$ HON. IRENE MULYAGONJA JUSTICE OF APPEAL $20$ HON. EVA K. LUSWATA JUSTICE OF APPEAL $25$