Olupot v Uganda (Criminal Appeal 701 of 2015) [2025] UGCA 12 (24 January 2025)

### THE REPUBTIC OF UGANDA

## IN THE COURT OF APPEAT OF UGANDA HOTDEN AT GUIU

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

## Criminal Appeal No.0701 of 2015

(Arising from High court criminar session case No.o110 of 2012 at Guru)

BETWEEN

# OLUPOT JOHN APPELLANT

#### VERSUS

# UGANDA RESPONDENT

(An appeal from the decision of Musene J delivered at Gulu on 24s August 2014) 15

## JUDGMENT OF THE COURT

The appellant was convicted for aggravated defilement upon his own plea of guilt and sentenced to 23 years, imprisonment on 24t; August 2014.

#### Background,

)a 25 The facts u pon wh ich the a ppella nt was convicted a re that o n gth J uly 2OL2 he defiled a ch ild we sha ll referto as ,,GL,,who was 3 years old at the time. <sup>A</sup>sister to GL who had seen the appellant dragging her sibling to a bush informed a neighbour who came and saw the appellant defiling GL. The appellant ran away but was later arrested. He admitted the offence at the plea taking proceedings in court.

The appellant lodged an appeal against the sentence only.

### Ground of appeal.

The learned trial Judge erred in law and fact when he sentenced the appellant to 23 years, imprisonment which sentence is manifestly harsh and excessive in the circumstances of the case.

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#### Representation. $\mathsf{S}$

Mr. Paul Douglas Layoo represented the appellant while the respondent was represented by Mr. David Nabende, a Senior State Attorney in the Office of the Director of Public Prosecutions.

The appeal filed out of time was validated by the Court and leave to appeal against only the sentence was granted. Counsel filed submissions which with leave of court were adopted as their arguments in the determination of the Appeal.

# Submissions by Counsel for the Appellant.

It was submitted that the trial Judge did not consider all the mitigating factors in favour of the appellant. Counsel faulted the trial Judge for 15 disregarding the fact that the appellant was remorseful, and that he was a youth but only considered his plea of guilt to spare him a harsher sentence.

It was argued that in the mind of the trial Judge, the fact that the victim was 3 years old outweighed all mitigating factors which should have been 20 considered in favour of the appellant. Counsel urged the court to invoke the principle of parity and consistency to review the sentence and reduce it to one appropriate to the circumstances of the case

The court was referred to Mbotto V Uganda, CA Criminal Appeal No.37

of 2019 [2023] UGCA 26 in which the court set aside a sentence of 25 25 years and resentenced the appellant to 15 years. The victim in the case was 6 years old and the appellant had pleaded guilty to the charge.

Counsel proposed a sentence of 13 years as appropriate to the circumstances of the case.

#### Submissions by Counsel for the Respondent. 30

It was submitted for the Respondent that the trial court correctly evaluated the aggravating and mitigating factors before arriving at 23 years' imprisonment as the appropriate sentence.

- It was argued that the trial Judge considered the age of the victim as an $\mathsf{S}$ aggravating factor to arrive at the sentence imposed. The court was referred to Segirinya Fulugensio V Uganda, CA Criminal Appeal No.549 of 2016 [2024] UGCA 204 in which the court relied on the age of the victim to determine the appropriateness of the imposed sentence. - Counsel further cited Okello Basil Mugenyi V Uganda, CACA No.294 of 10 2017 [2023] UGCA 128 in which this court declined to interfere with a sentence of 32 years imposed by the trial court in a similar case but where the victim was 12 years old.

The case of Bashir Burahuri V Uganda, CACA No.025 of 2015 [2023] UGCA 264 in which the court upheld a sentence of 40 years was cited in support 15 of the proposition that the sentence of 23 years imposed by the court was neither harsh nor excessive.

Counsel drew the attention of the court to many other authorities in which sentences way above what was imposed by the trial court in the instant case were upheld on appeal. The court was urged to dismiss the appeal for being devoid of merit.

## Analysis.

It is an established principle in our 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 Livingstone Kakooza V Uganda. SC Criminal Appeal No.17 of 1993 [1994] UGSC 24.

After listening to the submissions in aggravation and in mitigation of the sentence, the trial Judge gave reasons for the impugned sentence as 30 below;

> "This is indeed a sad story of an adult molesting a very young innocent girl of 3 years. Despite

> > Page 3 of 6

the submissions by defence counsel that the convict was under the influence of alcohol and was repentant right from the beginning, considering the age of the victim, the actions of the convict were brutal and beastly. The courts normally award lenient penalties to an accused person who readily pleads guilty like in the present case.

However, in view of the very young age of the victim, the convict can only be spared the death penalty or life imprisonment because of **Otherwise** $as$ guilty. pleading quickly submitted by the State Attorney a very long term of imprisonment would be necessary. The convict should have looked for mature girls and women in Amuru or even take a day off and come to Buganda Pub in Gulu. He would have got what he wanted.

So despite the remorsefulness, this court will not treat such cases lightly, for to do so would encourage other young men to do the same and expect leniency.

All in all, and after careful consideration, a term of imprisonment of 23 years would be appropriate. However, I subtract the 2 years of remand and do hereby sentence you to serve 21 years' imprisonment."

While sentencing the Appellant, the trial Judge considered the fact that he was under the influence of alcohol and also noted his instant plea of guilt.

$\mathsf{S}$

- We do not take the appellant's being under the influence of alcohol as a $\mathsf{S}$ mitigating factor since it was evidence from the Bar. It was nowhere alluded to in the facts admitted by the appellant and the trial court during the plea taking proceedings. - We also noted from the sentencing ruling that the trial court did not consider the fact of the appellant being a first offender which featured in 10 the submissions in mitigation of the sentence. The court dwelt at length and rightly so on the difference in age between the 29 years old appellant and the 3 years old victim.

The trial Court further focussed on imposing a sentence that would deter would be offenders from molesting children. We find that due weight was 15 not given to the fact that the appellant pleaded guilty, which if considered, a slightly lower sentence would have been imposed.

In the determination of the appropriate sentence, we are guided by the principles of parity and consistency in sentencing. We are however alive to the fact that no two cases are exactly similar. The circumstances of 20 each case are considered on their merits and the mitigating and aggravating factors embedded therein may yield a different sentence from that imposed in a case arising from an otherwise similar offence.

In Candia Akim V Uganda. CA Criminal Appeal No.0181 of 2009 [2016] UGCA 27 this court upheld a sentence of 17 years' imprisonment. The 25 appellant was a stepfather of the 13 years old victim. In Buga Majid V Uganda, CA Criminal Appeal No.0634 of 2014 [2024] UGCA 329 this court re-sentenced the appellant to 18 years for defiling a 12 years old victim.

Section 11 of the Judicature Act clothes this court with the powers of the court from which an appeal arises and that includes powers to set aside 30 and resentence the Appellant. We thus set aside the sentence of 23 years' imprisonment imposed by the trial court and resentence the appellant to 15 years considering the age of the victim as the most pertinent aggravating factor.

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The appeal is allowed. The appellant is resentenced to 15 years. We $\mathsf{S}$ deduct the 2 years he spent on remand. The appellant shall serve 13 years from 24<sup>th</sup> August 2014 when he was convicted.

Signed and delivered this 2.1. day of 2025.

ngunuse.

**Fredrick Egonda-Ntende Justice of Appeal**

**Margaret Tibulya Justice of Appeal**

**Moses Kazibwe Kawumi Justice of Appeal**

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