Ofwono v Uganda (Criminal Appeal 360 of 2019) [2025] UGCA 105 (24 April 2025)

### <sup>5</sup> THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# [Coram: Chrlstopher Gashirabake, Dr. Asa Mugenyi and John Mlke Musisi, JJAJ CRIMINAL APPEAL NO. 0360 OF 2019

[Appeal from the judgment of the High Court of Uganda at Mukono (Susan Okalanyi J.) in Criminal Case No. 143 of 2O18 delivered on 9th January 2019] 10

# OFWONO APOLLO :333::::::::::::::::r:r3::::::::::::::3::::::: APPELLANT VERSUS

UGANDA ::::::::::::3:i:::::::::::::::::::r::::3::::3:3::3r::::::::::::::: RESPONDENT

### JUDGMENT OF THE COURT

# 1. INTRODUCTION

This is an appeal against the conviction and sentence ofthe appellant to 34 years of imprisonment for the offence of aggravated dehlement contrary to Sections 129(3) and (4)(a) of the Penal Code by Susan Okalanyi J. The appellant defiled a baby of 1 year and 1O months.

# 2. BACKGROUND

On Sth January 2O15 at around 2.00 pm, one Patricia Ajuma, the mother of the victim, and her maid left the victim unattended at their home. The victim went to the home of the appellant, a neighbour. When the mother was taking something to the toilet, she passed the appellant's home. She saw the appellant kneeling near the victim. The appellant was making her to sit. They were on a bed. When the mother took the victim home, she checked her private parts and found them to be red and wider than usual. The mother informed the husband, one Simon Madibo, and her sister, one Imelda Among. The matter was reported to Seeta Police Station. The victim was examined by the Police. There were two

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longitudinal bruises on her, on her inner lobia minora. The bruises were red. The injuries were found to be consistent with an attempt to penetrate the vagina' 5

The appellant was arrested and charged with aggravated defilement. After a full trial, he was convicted ofthe offence of aggravated defilement. He was sentenced to 34 years of imPrisonment.

3. GROUNDS OF APPEAL

Dissatisfiedwiththetrialcourt,Ssentencetheappellantappealedonthe following grounds: 15

- 1. The learned trial Judge erred in law and fact when she convicted the appellant on the offence of aggravated defilement when no evidence of participation by theappellantintheperformanceofthesexua]acthadbeenadducedbythe prosecution. - 2. ThelearnedtrialJudgeerredinlawandinfactwhenshefailedtoevaluate theevidenceoncourtrecordasawholetherebycomingtoaconclusionthat the appellant participated in the sexua-l act whereas not' 20 - 3. The learned trial Judge erred in law and in fact when she convicted and sentencedtheappellantto34yearsofimprisonmentwhichSentenceisharsh and manife stlY excessive. - In his submissions, the appellant abaldoned ground 2 of the memorandum of appeal. Therefore, we shall not address it'

## <sup>30</sup> Representetlon

At the hearing on 2'd April 2025, tine appellant was represented by Ms' Shamim Nalule on State brief while the respondent was represented by Ms. Happiness Ainebyona, Chief State Attorney'

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Determlnatlon of ground 1. The leatned trtal Judge erred in law and fact when she convlcted the appellant on the offence of aggravated defllement when no evldence of partlclpatlon by the appellant ln the performance of 10 the sexual act had been adduced by the prosecutlon.

## 4, COUNSEL FOR THE APPELLANT'S SUBMISSIONS.

15 20 25 On ground 1, the counsel for the appellant submitted that he does not contest the first two ingredients of the offence. He submitted that the prosecution did not prove beyond reasonable doubt that the appellant participated in the crime. The counsel submitted that for an accused to be solely convicted on circumstantial evidence, the court must be satisfied that the incriminating evidence is incompatible with the innocence of the accused and incapabie of explanation upon any other reasonable hypothesis other than that of guilt. Counsel was aggrieved that the Judge only relied on the evidence ofthe mother to convict the appellant. He submitted that making the child sit on the bed does not show that the appellant assaulted the victim. He stated that the mother of the witness exaggerated the events. The counsel submitted that the DNA evidence exonerated the appellant from the offence. Exhibit 4 the DNA analysis report was to the effect that the appellant's DNA was never found in the victim's private parts. The victim may have been defiled by other persons.

### 5. COUNSEL FOR THE RESPONDENT'S SUBMISSION

In reply, counsel for the respondent submitted that the appellant only contests participation of the appellant in the crime. The counsel submitted that the trial Judge properly evaluated the evidence of PW1 and stated that it was not direct evidence. It amounted to circumstantial evidence. The mother developed second thoughts after taking her daughter home. The appellarrt confirmed that the

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victim was in his company. The counsel cited Basita Hussein v Uganda, SCCA $\mathsf{S}$ 35 of 1995, where it was stated that the failure of the victim to testify is not fatal for conviction. In that case a grandmother testified and the accused was convicted. The counsel submitted that all factors favouring correct identification of the appellant were present. Counsel also cited Baguma Fred v Uganda, SCCA 7 of 2004, where the Supreme Court noted that where there is a question of 10 which witness to believe, the court should be guided by the impression the witnesses had on the Judge. He submitted that all the evidence pointed to the participation of the appellant. Counsel also cited Bumbo v Uganda, SCCA 28 of 1994, where the Supreme Court stated that the law is that once an accused person has been positively identified during the commission of the crime, his 15

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claim that he was elsewhere must fail. The appellant admitted he was in the company of the victim.

## 6. DETERMINATION

The duty of the Court of Appeal was cited in Oryem Richard v Uganda, Criminal $1.$ Appeal 22 of 2014 (SC), as follows:

"We should point out at this stage that Rule 30(1) of the court of Appeal Rules, places a duty on the court of appeal, as the first appellate court to re-appraise evidence on record and draw its own inference and conclusion on the case as a whore for the fact that it has neither seen nor heard a witness."

This is also cited in Henry Kifamunte v Uganda, Supreme Court Criminal Appeal 10 of 1997, where the Supreme Court held that:

"The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must then make up its own mind not disregarding the judgment but carefully weighing and considering it."

Therefore, our duty is to appraise the evidence that was presented in the trial court.

JANINI D

<sup>5</sup> The appellant was convicted of the offence of aggravated defilement contrary to Sections 129(3) and (4)(a) of the Penal Code. Section 129 (3) and (4) provide that

> " Any person u.tho performs a sexual oct utith another person u.tho is below the age of eighteen years in ang of the circumstances specified in subsection (4) commits a felong called aggrauated defilement ond is, on conuiction by the High Court, liable to suffer death.'

The ingredient for aggravated defilement are

- 1. The victim must be below 18 years. - 2. A sexual offence must have been committed. - 3. The accused must have participated. - The appellant did not challenge the first two ingredients. He only challenged that he participated in the offence. 15

It is not in dispute that the trial court relied on circumstantial evidence. There was no witness who actually saw the appeliant defile the victim. In Bgaruhanga Fodoi u Uganda, S. C. C. A 18 of 20 it was held:

"lt is trite law that where the prosecution case depends solely on circumstantia-l evidence, the court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt

The court must be satisfied that the incriminating evidence is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hlpothesis other than that of guilt.

As a Court of Appeal, we are a.llowed to appraise the evidence on record. The evidence of PWl, the mother, was that she heard her daughter calling her "mother come" in a scary voice. When she approached the appellant's home she saw the appellant kneeling near her daughter. Both were on a bed. Later, when she took her baby home, she checked her private parts. She saw they were red and swollen. She also testified that later her daughter was complaining that her

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private parts were itching. The mother also testified that the victim told her that $\mathsf{S}$ "uncle was saying Clowi sorry." The alleged uncle was the appellant. Therefore, whatever the uncle must have done something detrimental to the victim for him to be sorry. The mother also testified that there was no grudge between her family and the appellant. PW2, Janerio Nakayanja, Assistant Inspector of Police, a detective who took the victim for medical examination noted that the vagina of

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- 10 the victim had some swellings and tears on the side. PW3, Dr. Onzivu Sylivester, the medical doctor, a pathologist noted that there were two longitudinal bruises on her labia minora. They were red in colour. They were fresh. They showed that there was an attempt to penetrate the vagina of the victim. The bruises were - caused by a blunt object. He admitted that a penis is a blunt object. Since the 15 appellant did not dispute that there was a sexual penetration of the victim, the question is who could have committed such an offence? We already noted that the mother saw the appellant with the victim. The victim called the mother in a scary voice. The victim imitated the appellant saying that he was sorry. Dr. - Onzivu confirmed that the bruises were fresh. The only person seen with the 20 victim was the appellant who caused the said fresh bruises. PW5 Immaculate Nabukware examined the blood samples from the victim, exhibit B, and obtained a swab from the vulva, exhibit A. The results showed that the suspect could not be the donor of the biological material. We note that the said results were not conclusive. The mother of the victim examined the victim. The said results could $25$ have been tampered. We note that the trial Judge had the opportunity of looking - at the demeanor of the witnesses which we do not have. Taking the above into consideration, we do not fault the trial Judge for convicting the appellant. - Determination of ground 3. The learned trial Judge erred in law and in fact 30 when she convicted and sentenced the appellant to 34 years of imprisonment which sentence is harsh and manifestly excessive.

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# 7. COUNSEL FOR THE APPELLANT'S SUBMISSIONS

10 15 On ground 3, the counsel for the appellant submitted that on sentencing the appellant court is not to interfere with the sentence imposed by a trial court unless the exercise of discretion is such that it results in the sentence imposed to be manifestly excessive or so low to amount to a miscarriage oljustice or where the trial court ignores to consider an important matter or circumstance which ought to have been considered when passing the sentence. See Kiwalabye Bemard u Ugonda, SCCA 143 of 2001. Counsel also cited Aharikundira Yustina v Uganda, SCCA 27 of 2005 where it was held that consistency is a vital principle in a sentencing regime. The counsel submitted that the trial Judge did not take into account all the mitigating factors and departed from the conventional rule of conformity. He submitted that the mitigating factors included that the appellant was a first time offender. He was family man of about 7 children. He

- 20 was remorseful and capable of reform. He was 40 years. He cited Kabatera Steuen u Ugonda, Criminal Appeal No. 123 of 2O01 where the court held that the age of the convict is a relevant factor. Counsel cited Angugo Siliua u Ugonda, Criminal Appeal 38 of 2014, where court held that in the absence of aggravating factors like HIV, the sentencing range is between 1 1 to 15 years. In Bgera Denis <sup>u</sup> - 25 30 Uganda, Crimina,l Appeal No. 99 of 2012, l21l8l UGCA 61, (3oth July 2018), the appellart was 39 years old. He defiled a girl of 3 and Vz years. The sentence was reduced to 18 years and 4 months. \n Ru-takibale Patrick u Uganda, Criminal Appeal No. 384 of 2014, 120241 UGCA 302, (16th October 20241, tl:,e appellant was 42 years old. The court found that he was a first time offender and the sentence of 32 years was reduced to 18 years. The counsel for the appellant

prayed for a more lenient sentence of 15 years.

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# 5 8. COUNSEL FOR THE RESPONDENT'S SUBMISSION

On ground 3, the counsel for the respondent crted Bachuta Benon u Uganda, Criminal Appeal No. 869 of 2Ol4 where the Court of Appeal confirmed life imprisonment for aggravated defilement of a lO-year-old victim who was predisposed to HIV infection. He also cited Kabazzi Isa u Uganda, CACA 25 of 2015 where the appellant was sentenced to 40 years of imprisonment for defiling a l2-year-old. In Koserebqngi James u Ugando, SCCA 10 of 2014, the Supreme Court upheld life imprisonment for a father who defiled and impregnated her daughter. The respondent submitted that the sentence of aggravated defilement provides for a starting point of 35 years of imprisonment. The sentence of the appellant was within the range.

9. DETERMINATION

- 20 25 The appeilant was aggrieved by the sentence of 34 years imposed by the trial Judge. He submitted that it was harsh and excessive. ln Kiutalabge Bernard <sup>u</sup> Uganda, SCCA 143 of 2001, it was held that it is trite law that the appellant court is not to interfere with the sentence imposed by a trial court which has exercised its discretion unless the discretion is such that it results in the sentence imposed being manifestly excessive or low as to amount to <sup>a</sup> miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or - 30 The appellant has to show that the trial Judge did not exercise her discretion judiciously in arriving at a sentence. The trial Judge considered the submissions of the prosecution and the defence. She noted that the appellant was convicted of aggravated defilement which carries the maximum sentence of death. The appellant targeted a very susceptible member of the neighborhood, a toddler to obtain sexual gratification. The appellalt was over 40 years of age. He was a first

where the sentence is imposed on wrong principle.

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<sup>5</sup> offender. He had been on remand. She concluded that his conduct was disgraceful and predatory. We find no justification in setting aside the sentence as the trial Judge exercised her discretion properly. Though the trial judge noted the appellant spent 4 years on remand, the sentence does not show where the trial Judge deducted it. Therefore, for purposes of clarity, the appellant's sentence still stands at 34 years of imprisonment. The appellant spent 4 years on remand. We will deduct the 4 years spent on remand from the 34 years' sentence. He will serve 30 years of imprisonment from the date of sentencing. We so order. 10

<sup>15</sup> Dated at Kampala ttis ..#ay fu^J <sup>2025</sup>

r

Chrlstopher Gashirabake

Justlce of Appeal

D\*T

Dr. Asa ugenyl Justice of Appeal

Mu

<sup>30</sup> Justice o Appeal

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