Rwakibale v Uganda (Criminal Appeal 384 of 2014) [2024] UGCA 302 (16 October 2024)

### THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

# [Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi & Margaret Tibulya, JJA]

### CRIMINAL APPEAL NO. 384 OF 2014

# (Arising from the High Court Criminal Session Case No. 036 of 2012 at Fort Portal)

### **BETWEEN**

RWAKIBALE PATRICK....................................

### AND

UGANDA ...................................

(An appeal from the Judgment of the High Court of Uganda Batema N. D. A. J delivered on the 17<sup>th</sup> January 2014)

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# JUDGMENT OF THE COURT

### Introduction

The Appellant was indicted and convicted of the offence of Aggravated Defilement c/s 129(3) (4) (a) of the Penal Code Act Cap 120.

### **The Facts**

The Appellant on the 9<sup>th</sup> day of October 2011 at Kamengo Kicuna 'B' Zone in Kabarole District unlawfully performed a sexual act upon KR a girl aged 3 and a half years old.

The victim, was sent to fetch water by her father. A neighbor, Rwakibale Patrick, offered to help her carry the water. However, the victim took longer than expected to return home. The victim's father then went to investigate the delay and discovered Rwakibale sexually assaulting his daughter. The father reported the incident to the police, who arrested Rwakibale. Evidence collected at the scene included the victim's torn clothes and the Appellant's shoe. Medical examinations confirmed that the victim had been sexually assaulted. The Appellant was examined on PF24 and found to be 42 years old and mentally normal.

## Decision of the Trial Court

The Trial Judge sentenced the Appellant to 32 years' imprisonment. Dissatisfied, the Appellant appealed against sentence only on the following ground: -

The learned trial Judge erred in law and fact when he passed a harsh and manifestly excessive sentence of 32 years' imprisonment hence occasioning a

The Respondent opposed the Appeal.

### **Representations**

At the hearing, the Appellant was represented by Counsel Muhumuza Samuel and the Respondent by Oola Sam Senior Assistant Director of Public Prosecutions (DPP) holding brief for Samali Wakooli, Assistant DPP. The Appellant was present.

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#### Leave to Appeal on Sentence only

At the hearing the Appellant sought leave under Section 132(1) (b) of the Trial on Indictment Act to appeal against sentence only. This leave was granted upon no objection from the Respondent.

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

### **Powers of the Appellate Court**

This is the first appeal and the duty of the first appellate court is to reappraise the evidence and come up with its own inferences as per Rule 30(1) of the Judicature (Court of Appeal Rules) Directions S. I 13-10.

Further, we are alive to the duty of this court as a first appellate court as decided in the case of Kifamunte Henry v Uganda SCCS No. 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact. The basis for setting aside a sentence imposed by a trial court were generally set out in Ogalo s/o Owoura v R (1954) 21 EACA 270. In that appeal, the appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. The East African Court of Appeal held that: -

"... The principles upon which an appellate court will act 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 somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147. "it is evident that the Judge has 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 view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe penalties and lesser offences in terms of aggravation attracting less severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor..."

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# In Kiwalabye versus Uganda Criminal Appeal No. 143 of 2001 (SC) this Court held: -

"The appellant court is not to interfere with 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 when passing the sentence or where the sentence imposed is wrong in principle"

This being a first appeal, it is this court's duty to reevaluate the evidence adduced in the lower court and arrive at its own conclusion. This duty has been restated in numerous authorities arising out of this court and the Supreme Court. See; Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga SCCA No. 77 of 2002 (unreported): thus:

"The legal obligation of the 1<sup>st</sup> appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses.

Ground 1: The learned trial Judge erred in law and fact when he passed a harsh and manifestly excessive sentence of 32 years' imprisonment hence occasioning a miscarriage of justice.

### Submissions of the Appellant

Counsel for the Appellant argued that the 32-year sentence was harsh and excessive and should be reduced. They cite legal precedents supporting the appellate court's authority to interfere with sentences that are manifestly excessive or based on wrong principles. Counsel emphasizes the principle of consistency in sentencing and argues that the sentence should be within the typical range for aggravated defilement cases, which is generally 11-15 years. They highlight their mitigating factors, such as being a first offender, young, and having a family, and argue that these factors should warrant a more lenient sentence.

The Appellant argued that the trial Judge erred in failing to consider the mitigating factors and in imposing a sentence that is not consistent with sentences of other similar cases. Counsel submitted that in his view, a custodial sentence of 14 years would meet the ends of justice. The

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Appellant also prayed that the court deduct the time of 2 years spent in pre-trial remand from the final sentence.

#### **Submissions of the Respondent**

Counsel for the Respondent argued that the sentence of 32 years' imprisonment is supportable as being neither harsh nor excessive and should be upheld. Defilement under the Third Schedule to the Sentencing Guidelines attracts a sentence of 35 years' imprisonment up to death as a maximum sentence. Counsel submitted that the trial Judge carefully considered all mitigating and aggravating factors and arrived at a fair sentence within the legal range for aggravated defilement. In this regard, the Respondent cited several cases with similar sentences, emphasizing the severity of the crime and the need for a deterrent sentence.

Counsel for the Respondent pointed to the aggravating factors, such as the age difference between the victim and the Appellant, the victim was a friend of the victim's family and that is why he had been allowed to escort to victim to collect water, the victim was under the care of the Appellant and so there was a breach of trust. The Respondent argued that these factors outweigh the mitigating factors and justify the severe sentence imposed.

#### Findings and decision of Court

We have addressed ourselves to the submissions of both the Appellant and Respondent and for that we are thankful.

The Court of Appeal in Kabazi Issa vs Uganda Criminal Appeal No. 268 of 2015 cited with approval the Supreme Court of Uganda in the case of Kyalimpa Edward vs Uganda, Criminal Appeal No.70 of 1995, which laid down the principles that govern an appellate Court's powers to interfere with sentence as follows: -

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate Court, this Court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal, or unless Court is satisfied that the sentence imposed by the trial judge is manifestly so excessive as to amount to an injustice, Ogalo s/o Owura s. R [19541 21 E. A. C. A. 126, R vs. Mohamedali Jamal [1948] 115 E. A. C. A. 726"

Guideline 6(c) of the Constitution (Sentencing guidelines for the Courts of Judicature) (Practice) Directions 2013 (hereinafter referred to as 'the Sentencing Guidelines') provides that,

"every court shall when sentencing an offender takes into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances."

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Paragraph 5(b) and (c) of the Sentencing Guidelines shows that one of the aims of sentencing is to deter a person from committing an offence again and to separate the offender from society where necessary. The court has a duty to protect the society and other children from such persons by withdrawing them from the community where necessary and there is nothing illegal in taking such a decision. The trial judge cannot thus be faulted for exercising his discretion rightly in sentencing.

In the Supreme Court appeal of Aharikundira Yustina vs Uganda Criminal Appeal No. 27 of 2015, the court reechoed the provisions of Guideline 6(c) where it provides that: -

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

The Court of Appeal of Uganda in Tiboruhanga Emmanuel vs Uganda Criminal Appeal No. 0655 of 2014 considered the following authorities which it cited with approval. The Court held

"The sentencing range for aggravated defilement as imposed by the Court of Appeal in decided cases is as follows'

In Ogarm Iddi vs Uganda, Court of Appeal Criminal Appeal No. 0182 of 2009, the victim was 13 years old and the Court of Appeal upheld a sentence of 15 years imprisonment of the offence of aggravated defilement.

In Ntambala Fred vs Uganda, Criminal Appeal No. 0034 of 2015, the Supreme Court upheld a sentence of 14 years' imprisonment for aggravated defilement which had been imposed by the trial court and maintained by the Court of Appeal.

In Lukwago Henry vs Uganda, Court of Appeal Criminal APPEAL No. 0036 of 2010. this Court upheld a sentence of 13 years imposed upon the appellant for the offence of aggravated defilement.

In Kibaruma John vs Uganda, Court of Appeal Criminal Appeal No. -255 of 2010, the appellant was convicted of aggravated defilement of a 9-year-old girl and was sentenced to 15 years' imprisonment. On appeal to the Court of Appeal, his sentence was reduced

Based on the above authorities, the Court of Appeal then held that: -

"the sentences previously imposed by the Court of Appeal for aggravated defilement fall within the range of 11 years to 15 years."

The court noted that, the authorities above, they didn't involve exposing the victim to HIV/AIDS as it was in the said case.

In Abale Muzamil Vs Uganda, Court of Appeal Criminal Appeal No.0039 of 2014, this court confirmed a sentence of 19 years' imprisonment for the offence of aggravated defilement. In that case, a neighbour defiled the victim who was aged 9 years at the time of the offence.

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at 22<sup>nd</sup>

In Moses Hoke alias Champion Vs Uganda, Court of Appeal Criminal Appeal No. 107 of 2019, the sentence of 22 years and 6 months' imprisonment was upheld by this court. The victim was a girl aged 5 years.

In Byera vs Uganda [2018] UGCA 61, the Appellant who was 39 years old was convicted of the offence of aggravated defilement and sentenced to 30 years' imprisonment by the High Court. The victim was $3\frac{1}{2}$ years old and a stepdaughter of the Appellant. This court found the sentence of 30 years to be harsh and excessive. In substitution thereof, a sentence of 20 years' imprisonment was found to be appropriate and upon deducting the period spent on remand, the Appellant was sentenced to 18 years and 4 months' imprisonment.

In our exercise of the above mandate, we are cognizant of the fact that aggravated defilement is a very grave offence and carries a maximum penalty of death. The Sentencing Guidelines set out 35 years' imprisonment term as the minimum sentence for a person convicted of aggravated defilement. We are however are alive too to the sentencing range that has in the recent times been meted in crimes of this nature.

We have considered the appellant's age of 42 years at the time of commission of the offence, a first offender and capable of reform as valid mitigating factors. This court also considers the following aggravating factors: the age of the victim at the time of commission of the offence of 3 1/2 years old, and the fact that sexual offences were rampant in the area which calls for a deterrent sentence.

Lastly, taking the principle of consistency and parity, we shall now proceed to sentence the Appellant afresh pursuant to Section 11 of the Judicature Act which provides as follows: -

"For the purpose of hearing and determining an appeal, the 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."

In this regard, we consider a term of 20 years' imprisonment as the appropriate sentence in the circumstances of this case. The sentence of 32 years is therefore accordingly quashed and replaced with that of 20 years imprisonment.

#### Period spent on Remand

In his judgment, the learned trial judge stated that, "He is a first offender and has spent 2 years on remand. I consider that and sentence him to 32 years' imprisonment." However, the learned judge did not do a mathematical calculation to indicate that the 2 years on remand had been deducted from the final sentence.

From the provision, the trial court was required to be alive to the fact that such period had to be credited to the convict. The trial judge at page 27 of the sentencing notes did this.

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The Supreme Court, in Kizito Semakula Vs Uganda, Cr. Appeal NO. 24 of 2001, held that in Article 23(8), the words "to take into account" does not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused on remand from the sentence to be imposed by the trial court.

The cases relied on by Counsel for the Appellant are decisions made after the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014 that required a mathematical deduction of the period spent on remand, does not operate retrospectively. The decision in this case was made on 17<sup>th</sup>January 2014 and by then what was required was for the court to take into consideration the period spent on remand and not to mathematically deduct as was required by the decision of **Rwabugande (Supra)** which was rendered on 3<sup>rd</sup> march 2017.

Lastly, we have considered the range of sentences in other cases of Aggravated defilement as detailed in this judgment. We have already found that the term of 20 years' imprisonment as the appropriate sentence in the circumstances of this case. From that sentence, we now deduct the period of about 2 years spent by the Appellant in pre-trial remand. Accordingly, the Appellant shall serve a term of 18 years commencing from the 17<sup>th</sup> January, 2014, the date of conviction

#### **Final Decision**

Having held as we have on the above issues hereby Decide and Order that:

- The Appeal is upheld. - 2. The sentence imposed by the High Court is hereby set aside. - 3. The Appellant shall now serve a term of 18 years commencing from the 17<sup>th</sup> January, 2014 the date of conviction.

this day of $O0$ $\rightarrow$ 2024 Dated at ....

Hon. Mr. Justice Geoffrey Kiryabwire

Hon. Mr. Justice Muzamiru Mutangula Kibeedi

Hon. Lady Justice Margaret Tibulya