Rugaizi v Uganda (Criminal Appeal 332 of 2016) [2025] UGCA 151 (21 May 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO. 332 OF 2016

## RUGAIZI EMMANUEL Alias CAPTAIN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (Appeal from the decision of the High Court of Uganda at Mbarara before David Matovu, J dated 25<sup>th</sup> October, 2016 in High Court Criminal Session Case No. 132 of 2012)

Coram: Moses Kazibwe Kawumi, Florence Nakachwa, Cornelia Kakooza Sabiiti, JJA

# JUDGMENT OF THE COURT

## **Background**

1. The Appellant was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) of the Penal Code Act, Cap. 120 (now section 116(4)) and 116(3) of the Penal Code Act, Cap. 128). It was alleged that the Appellant during the month of November, 2009 performed a sexual act on a one *KC* (*not real name)* a girl below 14 years when he was infected with HIV. He was tried and sentenced to a custodial sentence of 25 years' imprisonment.

$\mathbf{1}$

# The Appeal

- 2. The Appellant appealed against both conviction and sentence on the following grounds: - 1. The learned trial Judge erred in law and fact when he held that the prosecution had proved beyond reasonable doubt that the victim was below the age of 14 years whereas not; - 2. The learned trial Judge erred in law and fact when he convicted the Appellant on aggravated defilement when all the essential ingredients of the offence had not been proved beyond reasonable doubt; and - 3. The learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence when in view of the mitigating circumstances a lesser sentence would have been appropriate.

$3.$ At the hearing of the appeal, Counsel Namusisi Princess Benita appeared for the Appellant on state brief. The Respondent was represented by Batson Baguma, Chief State Attorney from the Office of the Director of Public Prosecutions. Both parties filed their respective written submissions which were adopted and considered in the determination of the appeal.

$4.$ The duty of this court as a first appellate court is well established as restated by the Supreme Court in the case of Oryem Richard v. Uganda, **Criminal Appeal No. 22 of 2014 (SC)** at page 5 in the following words:

$\overline{2}$

"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 first appellate court, to reappraise the evidence on record and draw its own inference and conclusion on the case as a whole but making allowance for the fact that it has neither seen nor heard the witnesses. This gives the first appellate court the duty to rehear the case...."

Therefore, we shall keep in mind the above duty as we resolve the three $5.$ grounds of this appeal. We shall consider the 1<sup>st</sup> and 2<sup>nd</sup> grounds jointly and the 3<sup>rd</sup> ground separately as per the parties' submissions.

## **Grounds**

- 1. The learned trial Judge erred in law and fact when he held that the prosecution had proved beyond reasonable doubt that the victim was below the age of 14 years whereas not; and - 2. The learned trial Judge erred in law and fact when he convicted the Appellant on aggravated defilement when all the essential ingredients of the offence had not been proved beyond reasonable **doubt**

# The Appellant's Submissions.

The Appellant's counsel submitted that the testimonies of P. W.2 and $6.$ P. W.3 were contradictory. That P. W.2 stated that she was 17 years old and she was in Senior 3 at Kazo Secondary school. That she was defiled around July, 2009. That P. W.3 stated that she gave birth to the victim, P. W.2, on 4<sup>th</sup> May, 1997. That it is estimated that P. W.2 was 12 years old in 2009. That it is also

presumed that in 2016, P. W.2 was between 19 and 20 years old when she testified. That the age given by the victim does not tally with the year in which P. W.3 claims to have given birth to the victim. That this shows that both the victim and her mother did not know what they were testifying about.

The Appellant's counsel stated that this contradiction should not be $7.$ treated as a minor contradiction. That it was also the evidence of the Appellant that the victim told him that she was 19 years old. Counsel prayed that this Court believes the Appellant's version of evidence. That the victim's mother wanted money as per the testimonies on the record and not that her daughter was defiled while she was below the age of 14 years. That she knew the correct age of the victim that she was above 14 years during the time of the commission of the offence and that is why she first resorted to negotiations.

Counsel submitted that the victim came to testify in court in 2016 at the 8. age of 17 while she had given birth to another child with a different man. That this alone shows that the victim was above 14 years in-between 2009 and 2010. That neither the Baptism card nor a medical report was produced to ascertain the age of the victim and that the victim's mother did not mention anything about the Baptism book, which shows that the same never existed. That P. W.4 brought it up as an afterthought.

It was further contended for the Appellant that P. W.4's testimony was 9. hearsay evidence and inadmissible. That the said Reverend Canon Kyamanywa was never produced to court to testify and also the alleged Baptism book was not exhibited by prosecution. That there was no medical evidence to prove age and in the absence of a medical report, court couldn't have relied on

$\Lambda$

the contradictory statement given by the mother and the victim to corroborate them with the hearsay testimony of P. W.4.

The Appellant's counsel stated that the trial Judge went ahead and $10.$ convicted the Appellant amidst the clear doubts on the uncertainty of the victim's age that were pointed out during hearing and thus causing a miscarriage of justice on the Appellant. Counsel prayed that the 1<sup>st</sup> and 2<sup>nd</sup> grounds of the appeal be resolved in the affirmative.

# **The Respondent's submissions**

On the other hand, the Respondent's counsel contended that the victim $11.$ was below the age of 14 years and that this fact was proved through the testimony of P. W.3 Namanda Jacent. That the victim also told court that at the time of her testimony in 2016, she was 17 years. That the sexual act was performed on the victim in 2009 and an arithmetic calculation puts her age below 14 years.

The Respondent's counsel submitted that P. W.3's testimony was neither $12$ discredited nor challenged by the Appellant and his lawyer during cross examination. That the Appellant's lawyer did not even attempt to cross examine P. W.3 on the issue of age meaning they admitted the fact that the victim was a minor by the time the Appellant performed a sexual act on her. Counsel cited the case of James Sowabiri & Anor v. Uganda, CR. Appeal No. 5 of 1990. Counsel stated that the omissions or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to the inference that the evidence is accepted subject to its being assailed as inherently or palpably incredible.

$\mathsf{S}$

The Respondent's counsel submitted that the learned trial Judge properly 13. evaluated the issue of the victim's age and arrived at a correct decision. That the evidence of P. W.2 and P. W.3 can still stand even without the evidence of P. W.4 who told court that he recorded a statement from Reverend Wilson confirming the fact that the victim was born and baptized in 1997. Counsel argued that absence of medical evidence to prove the victim's age is not fatal where P. W.2 and P. W.3 gave clear evidence as to the date of birth and age of the victim at the time she was sexually abused. That there is no contradiction between the two witnesses as claimed by the Appellant. That P. W.3 told court that the victim was born on 4<sup>th</sup> May, 1997 and the victim told court that she was 17 years (in 2016) at the time she testified in court. That the impugned sexual act was performed on the victim in 2009. That an arithmetic calculation places the victim below the age of 18 years. Counsel prayed that court finds that the above ingredient was proved beyond reasonable doubt.

Furthermore, counsel stated that the victim told court that in 2009, the $14.$ Appellant performed a sexual act on her several times. That the victim conceived and delivered a baby boy in 2010 but the Appellant refused to provide for the child. That the Appellant did not dispute the fact that he performed a sexual act with the victim and he boldly told court that she was his wife. That the evidence of the sexual act is not in dispute.

#### **Court's analysis**

The law which regulates the exercise of criminal appellate jurisdiction in the $15.$ Court of Appeal is section 131 of the Trial on Indictments Act, Cap. 25. Section 131 (1) of the Act provides thus:

- "(1) Subject to this section— - (a) an accused person may appeal to the Court of Appeal from a conviction and sentence by the High Court in the exercise of its original jurisdiction, as of right on a matter of law, fact or mixed law and fact: - (b) an accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law;

(c) where the High Court has, in the exercise of its original jurisdiction, acquitted an accused person, the Director of Public Prosecutions may appeal to the Court of Appeal as of right on a matter of law, fact or mixed law and fact, and the Court of Appeal may—

(i) confirm, vary or reverse the conviction and sentence;

(ii) in the case of an appeal against the sentence alone, confirm or vary the sentence; or

(iii) confirm or reverse the acquittal of the accused person."

Section 11 of the Judicature Act, Cap. 16 vests this court with original jurisdiction 16. as that of the trial court. It provides thus:

> "For the purpose of hearing and determining an appeal, 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 1<sup>st</sup> ground of the appeal faults the trial Judge for holding that the $17$

prosecution had proved beyond any reasonable doubt that the victim was below the age of 14 years whereas not. And the 2<sup>nd</sup> ground faults the learned trial Judge for convicting the Appellant of aggravated defilement when all the essentials ingredients of the offence had not been proved beyond reasonable doubt

Section 116 (3) and (4) of the Penal Code Act, Cap. 128, sets out what 18. constitutes the offence of aggravated defilement. It provides as follows:

$"129.$

(1) .................................... (2) ....................................

(3) Any person who performs a sexual act with another person Who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

(4) The circumstances referred to in subsection (3) are as follows:

- (a) where the person against whom the offence is committed is below the age of fourteen years; - (b) where the offender is infected with Human immunodeficiency Virus (HIV): - (c) where the offender is a parent or guardian of or a person in authority over the person against whom the offence is committee:

(d) where the victim of the offence is a person with a disability; or

 ## (e) where the offender is a serial offender."

- Therefore, aggravated defilement is constituted by a sexual act having $19.$ been performed by one person against another person under any of the conditions set out in section 129 (4) (a) to (e) of the Penal Code Act cited above. A sexual act has numerously been defined to mean penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ or the unlawful use of any object or organ by a person on another person's sexual organ, that is, the vagina or a penis. Therefore, the prosecution was under the obligation to prove the above stated ingredients beyond reasonable doubt in order to secure a conviction against the Appellant who was indicted of aggravated defilement. - The trial court in this case stated the ingredients of the offence of 20. aggravated defilement as follows:

"The ingredients of the offence of aggravated defilement are as follows:

- 1. The victim of the offence must be below 14 years of age. - 2. An unlawful sexual act must have been performed on the victim. - 3. The accused person must have performed the sexual act on the victim " - The learned trial Judge then proceeded to evaluate the evidence of both $21.$ parties on each of the ingredients and came up with a conclusion that the prosecution had established beyond reasonable doubt all the ingredients

$\overline{g}$

$\mathcal{L}$

including among others that the victim was aged 12 years old at the time the alleged offence was committed.

- $22.$ At trial, the victim's biological mother who testified as P. W.3 was very certain about the victim's date of birth and clearly stated that she gave birth to the victim on 4<sup>th</sup> May, 1997, with Betwara Amos being the victim's father. P. W.4 No. 35643 Detective Sargent Namanya Wilson also testified at page 17 of the record of appeal that according to the Baptism book, the victim was born in 1997 and got baptism in the same year. These evidence were not challenged by either the Appellant or his lawyer during her cross examination. The Appellant in his defence claimed that the victim told him that she was 19 years old. However, this allegation was not put to the victim during cross examination for her to confirm or deny it. We agree with the trial court's holding that this particular allegation was an afterthought by the Appellant to escape liability. - The trial court in its judgement rightly cited the case of **Francis Omuroni** $23.$ v. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, wherein this court held thus:

"In a defilement case medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. Observation and common sense are relevant in cases where it is too obvious to everybody that the victim is a person below age by mere observation and common


sense. It is only in circumstances where the victim's appearance may not be sufficient to satisfy court and …………… that some kind of evidence should be adduced."

Basing on the above extract, we are unable to accept the Appellant's $24.$ submissions challenging the victim's age. It is devoid of merits.

On the 2<sup>nd</sup> ground of the appeal, P. W.2 who is the victim in this case $25.$ testified at page 12 of the record of appeal that in 2009, she met the accused at Kazo while she was alone, she talked to him that's when he asked her to have a love relationship with him and she accepted. That they did not have sexual intercourse on their 1<sup>st</sup> meeting. That during their 2<sup>nd</sup> meeting, they had sex in a bush near her parent's home and they were only two. That she became pregnant and was expelled from Kazo Model School where she was studying Primary Seven. That she gave birth in July, 2011 from Mbarara Hospital. That the Appellant used to give her money. That when the baby was 5 months' old, she told the Appellant that he was responsible for baby and he gave her UGX. $20,000/=$ .

During cross examination by the Appellant's counsel at page 13 of the $26$ record of appeal, P. W.2 testified that she had sexual intercourse with the Appellant five times. That though she was not sure of which occasion she got pregnant, she suspected it to be in November, 2010. That she did not have any other boyfriend other than the Appellant. P. W.2 added that prior to July, 2009, she had not slept with any other man. That the Appellant accepted before the L. C.1 Chairperson that he had sex with her. That when she told the Appellant that she was pregnant, he responded that he would see what to do. That when

she saw the Appellant after giving birth, they had more sexual intercourse from his room.

P. W.2 concluded that she loved the Appellant and still loves him because $\overline{27}$ she has his child. That she did not want the Appellant to be arrested but it was her mother who organized for his arrest because he refused to look after the child. She requested court to order the Appellant to look after their child.

At page 15 of the record of appeal, P. W.3 stated that when she was told 28. by a neighbor called Adrine that her daughter was pregnant, she then went to Kazo Model School where the victim was studying, to meet the head teacher wherefrom the school nurse confirmed in her examination that the victim was pregnant. That when the victim was asked by the head teacher of who was responsible for her pregnancy, she mentioned the Appellant's name as Emmanuel Captain. That even the victim's sister named Loyce took the victim for another medical examination which confirmed that she was indeed pregnant.

P. W.3 added that when she reported the matter to the RDC who advised $29.$ her to settle the matter outside the Police Station, the Appellant admitted being responsible for P. W.2's pregnancy. That the Appellant was asked by the L. C.1 Chairperson to pay UGX. 500,000/= and to look after the child but he refused which made him to be arrested. That the victim gave birth to a baby boy called Emmanuel Captain from Mavanja Memorial Hospital in Mbarara. That one time when she talked to the Appellant, he gave her UGX. 20,000/= to look after the victim.

As to the Appellant's participation, both P. W.2 and P. W.3 confirmed that 30. the Appellant was a resident of Kazo Village. P. W.3 added that at the time, she was a tenant of the Appellant's brother. According to P. W.5's testimony at page 21 of the record of appeal, the Appellant in his charge and caution statement admitted impregnating the victim and added that she is his wife. That the Appellant understood the charge to be failure to look after the child. The trial court noted that since the charge and caution was obtained willingly, there was no need of a trial within a trial.

P. W.5 further testified that the Appellant admitted knowing the victim $31.$ when she was helping her mother with preparing food sold by the road side at Kazo Trading Centre and that he was their customer. That the Appellant stated in his charge and caution statement that he knew the victim in October, 2010. That in the process, he befriended her and they had sexual intercourse. That the 1<sup>st</sup> time they had sexual intercourse was in the bush. That he had sexual intercourse with the victim twice in the month of October, 2010.

That the Appellant further stated that later, the victim told him that she 32. was pregnant and he accepted. That he talked to the victim's mother about the pregnancy who advised her to hide so that the situation can first cool. That the Appellant stated that he hid in Kampala for 6 months then came back and they went to the office of the RDC wherefrom they agreed that he takes care of the child but he fell sick and couldn't fulfill the agreement. That when he got a misunderstanding with the victim's mother over the issue of the payment, he was referred to police and arrested. The charge and caution statement of the Appellant dated 4<sup>th</sup> February, 2011, written in Runyankole and translated in

$\begin{array}{c}\n\longrightarrow \\ \longrightarrow \\ \longrightarrow\n\end{array}$

English language made by P. W.5 were admitted in evidence and marked exhibits P2 and P3, respectively.

$33.$ The Appellant who testified as D. W.1 gave unsworn evidence and did not call any witness to testify in his favour. He admitted having sexual intercourse with the victim and further testified that he knew the victim as his wife with whom they produced a child who was 6 years old at the time of giving his testimony. That his child who is living with the victim is not going to school because he is the one to pay him at school but he is locked up in prison.

D. W.1 added in his testimony that he still loves the victim and that after 34. his release from prison, he plans to look after her and educate his son. He requested the trial court to release him from prison so that he can go back to look after the victim and their son. He further stated that the victim told him that she was 19 years that time which made them to have a sexual relationship.

In the case of Bassita Hussein v. Uganda, Supreme Court Criminal $35.$ Appeal No. 35 of 1995, it was held that:

"The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved by the victim's own evidence and corroboration by other evidence. Though deniable, it is not a hard and first rule, that the victim's evidence and medical evidence must always be addressed in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient and puts the case beyond reasonable doubt."

$\frac{1}{2}$

Having reviewed the evidence that was before the trial court, it is our 36. considered view that the learned trial Judge looked at all the relevant evidence that was before him as he was duty bound to do, in deciding whether or not the prosecution had proved beyond reasonable doubt that a sexual act had been performed upon the victim by the Appellant. The learned trial Judge acted properly in evaluating all the evidence that was before him in determining whether or not a sexual act had been done upon P. W.2, the victim. Therefore, we find no merits in the $1^{st}$ and $2^{nd}$ grounds of the appeal. They accordingly fail.

## Ground 3

The learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence when in view of the mitigating circumstances a lesser sentence would have been appropriate.

## The Appellant's submissions

The Appellant's counsel submitted on the 3<sup>rd</sup> ground of the appeal that 37. the trial Judge in the instant case did not consider all the mitigating factors. That he was so inclined to the aggravating factors than the mitigating factors. That the Appellant was a young man of 22 years, both the Appellant and the victim had a baby who was sick and not in school as his father was in prison and the victim and her mother wanted the Appellant to be released so that he takes care of his son.

The Appellant's counsel submitted that the fact that the Judge imposed a 38. harsh sentence on the Appellant for justice to the victim, it acted detrimental on the victim instead who remained with the burden to solely take care of her son in the absence of the Appellant. That the Appellant's age at the time of arrest

fell within the age bracket of abled Ugandan citizens who are capable of being beneficial through providing cheap labour force in the country after serving his sentence. That all these mitigating factors were ignored by the learned trial Judge.

The Appellant's counsel added that the trial Judge while deducting the 39. Appellant's remand period of 4 years and 10 months from the 25 years, erred and deducted only 3 years and 10 months leaving one full remand year unconsidered. The Appellant's sentence was meant to be 20 years and 4 months rather than 21 years and 4 months. Counsel cited the case of Katsigazi Januario, CACA No. 175/2014. That cases of aggravated defilement indicate that the sentencing range is between 11 to 15 years where the convict is a first time offender and he did not expose HIV to the victim. That the Appellant's sentence in the instant case is above the sentencing range.

That the Appellant did not expose the HIV virus to the victim and no 40. evidenced was produced that the victim contracted HIV and that is why the ingredient of HIV positive was not considered to aggravate the offence. Counsel prayed that this honourable court follows the sentencing range in the above case and reduces the sentence of 21 years and 4 months to at least 10 years basing on the fact that the Appellant and the victim have a child who needs their attention and care. That the Appellant was a young man of 22 years old who had just clocked maturity age at the time of the commission of the offence and now he has learnt that he has full responsibility of his son with the victim. That the victim and her baby visits the Appellant which shows signs of reconciliation. Counsel referred to the case of Katende Ahamad v. Uganda, Sc. Cr. App No. 6 of 2004. $41.$ The Appellant's counsel submitted that the sentence of 21 years and 4 months imprisonment that was imposed on the Appellant is not only harsh and excessive but also deprives the Appellant's hopes of uniting with his family. Counsel prayed that this appeal is allowed.

## **The Respondent's submissions**

Counsel contended for the Respondent on the 3<sup>rd</sup> ground of the appeal $42.$ that the 21 years 4 months' imprisonment sentence that the learned trial Judge imposed on the Appellant is neither harsh nor excessive. That the Appellant's counsel does not highlight a single sentencing principle that was faulted by the learned trial Judge. That the Appellant and his lawyer did not raise any serious mitigating factors and that the only mitigating factor raised by the Appellant was the 4 years and 8 months which he had spent on remand.

Counsel submitted that the learned trial Judge could not imagine $43.$ mitigating factors after the Appellant and his lawyer had failed to state or highlight any. That the mitigating factors being raised by the Appellant's counsel are a little too late. That the learned trial Judge sentenced the Appellant to 21 years 4 months imprisonment after considering the delicate age of the victim, the fact that she was impregnated and got expelled from school. That the learned trial Judge was also driven by the duty of court to protect young girls from sex predators like the Appellant.

The Respondent's counsel further submitted that the Appellant was 44. convicted of aggravated defilement which attracts a maximum sentence of death. That a man who defiles a 12 year old child like the victim in this case

deserves no lenience and should be punished severely. Counsel referred to the case of Byaruhanga Okot v. Uganda CACA No. 078/2010. That the circumstances surrounding the commission of this offence are very deplorable and would attract a very punitive sentence. That the Appellant defiled the victim, impregnated her, she delivered a baby and then he refused to honour his parental responsibilities leaving the victim who was a child to suffer with yet another child whom she had to fend for

Counsel asserted that the 21 years and 4 months' imprisonment sentence 45. imposed on the Appellant falls within the sentencing range of this honourable court. Counsel cited the case of Kiiza Geoffrey v. Uganda Criminal Appeal No. 76/2010. It was prayed for the Respondent that the 3<sup>rd</sup> ground of the appeal fails and that the entire appeal be dismissed.

## **Court's analysis**

46. The instances in which this court as an appellate court can interfere with a sentence passed by the trial; court have been settled by the Supreme Court of Uganda and this court. For instance, in the case of Kiwalabye Bernard v. Uganda, Criminal Appeal No. 143 of 2001, the Supreme Court set out the principles in which an appellate court may interfere with sentence as follows:

> "The appellate court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered


while passing the sentence or where the sentence imposed is wrong in principle"

Similarly, in the case of Aharikundira Yusitina v. Uganda; SCCA No. 47. 27 of 2015, the Supreme Court held that:

> "There is a high threshold to be met for an appellate court to interfere with the sentence handed down by a trial judge on the 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 imposed exceeds the permissible range or sentence variation."

For consistency and uniformity, it is crucial for us to relate the sentence 48. in the instant case with other sentences passed by the trial courts in similar cases or circumstances. In Tiboruhanga Emmanuel v. Uganda, Court of Appeal Criminal Appeal No. 0655 of 2014, this Court stated that the sentences approved by this Court in previous aggravated defilement cases, without additional aggravating factors, range between 11 years to 15 years.

In the case of Byera Denis v. Uganda, Court of Appeal Criminal $49.$ Appeal No. 99 of 2012, this court substituted a sentence of 30 years' imprisonment with one of 20 years' imprisonment it considered appropriate in a case of aggravated defilement. The victim in that case was aged 3 years.

In Ntambala Fred v. Uganda, Criminal Appeal No. 34 of 2015, the 50.


$19$

Supreme Court approved a sentence of 14 years' imprisonment imposed on the Appellant by the trial court and confirmed by the Court of Appeal, considering it appropriate for aggravated defilement. The victim of the offence was aged 14 years.

In Bacwa Benon v. Uganda; CACA No. 869 of 2014, this court 51. confirmed life imprisonment for aggravated defilement of a ten-year-old who was also predisposed to HIV infection.

In Kaserebanyi James v. Uganda; SCCA No. I0 of 2014, the Appellant 52. was sentenced to life imprisonment for defiling and impregnating his biological child.

In the instant case, the Court considered the fact that the Appellant was 53. HIV positive as an additional aggravating factor in that he had, by committing a sexual act on the victim while HIV positive, exposed her to the risk of contracting HIV/AIDS. The Court imposed a sentence of 25 years' imprisonment.

Although the Appellant's HIV positive status mentioned in PF3 was $54.$ discredited by the Appellant through exhibit D1, we still find the victim's tender age of 12 years to be an aggravating factor that would justify the sentence of 25 years' imprisonment that the trial court passed on the Appellant. We find the sentence appropriate given the circumstances of the case. We also note with concern that the Appellant has not shown any remorse in his mitigation. Instead he sought to be released so that he goes back to continue with his sexual relationship with the victim.

$\varphi$

$20$

In the case of Kizito Senkula v. Uganda, Supreme Court Criminal Appeal 55. No. 24 of 2001, the Supreme Court agreed with the former East Africa Court of Appeal about reference by judges to absence of remorse as a basis for enhancing a sentence. The court held thus:

"Court: Sentence – Reasons for it.

He is a first offender. However, he is a first offender who has started his journey in criminality in a high gear. What he did to this girl was to say the least treacherous. He introduced her to sex at such a young age of 11 years. In spite of the message of the castration to be meted out to such men, accused appears to be unconcerned about it. He has not, in the least, looked repentant for what he did. He has a large family of 7 children, but the heinous offence he committed weigh down such a mitigating factor. He spoils other parents' children and wants his to be highly regarded. It is important that deterrent sentence be imposed in this case considering the circumstances under which it was committed. The sentence should fit both the crime and the offender.

In the premises, the most leniency this Court can extend to an accused who on the face of it is un-repentant is to reduce the sentence from death to a term of fifteen (15) years imprisonment, the period spent on remand since 15-05-97 inclusive"

Having found that the Appellant's sentence of 25 years' imprisonment was 56 not harsh or excessive, the 3<sup>rd</sup> ground of the appeal fails. However, we take note of the arithmetic error made by the trial Judge while deducting the 4 years and 8 months' period spend on remand from the 25 years' imprisonment. The Appellant's final sentence after reduction of the remand period should have been 20 years and 4 months' imprisonment and not 21 years and 4 months' imprisonment. Therefore, in accordance with section 11 of the Judicature Act,

$\bigg\}$

Cap 16, we hereby hold that the Appellant shall serve a sentence of 20 years 4 months' imprisonment commencing from the date of the Appellant's conviction in the lower court. It is ordered accordingly.

Signed, delivered and dated at **Mbarara** this $\frac{2}{3}$ day of **May**, 2025.


**Moses Kazibwe Kawumi JUSTICE OF APPEAL.**

**Florence Nakachwa JUSTICE OF APPEAL**

chedup

Cornelia Kakooza Sabiiti **JUSTICE OF APPEAL.**