Semuyaba v Uganda (Criminal Appeal 80 of 2019) [2024] UGCA 156 (12 July 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheborion Barishaki, Hellen Obura and Eva Luswata, JJA.)

### CRIMINAL APPEAL NO. O8() OF 2019

s SEMUYABA MOHAMMED :APPELLANT

#### VERSUS

#### UGANDA: RESPONDENT

(Appealfrom the decision of the High Court of Uganda at Mpigi before His Lordship Hon. Justice Emmanuel Baguma, J delivered on the 27/03/2019 in CriminalSession Case No. 067 of 2017.)

#### 10 JUDGMENT OF THE COURT

#### Introduction

The appellant was indicted, tried and convicted of the offence of aggravated defilement contrary to section 129 (3) and 4 (a) and (c) of the Penal Code Act by the High Court (Emmanuel Baguma,J) on 27 10312019. He was sentenced to 1 5 years, 5 months and 17 days'

15 imprisonment.

### Background to the Appea!

fhe background facts of this case as ascertained from the court record are that in 2014, N. S (the victim) a girl aged 12 years went to stay with her father Semuyaba Mohammed (the appellant) in Bulo Sub-county, Butambala district. During her stay, the appellant performed a sexual act on her several times. The victim visited Nassazi Sarah (PW2) who noticed that she was not in a good condition. PW2 asked the victim what the problem was and she revealed to her that the appellant was abusing her sexually. PW2 reported the matter to police and an investigation was commenced. The victim was examined on PF3 and found to have ruptured her hymen and that a penis could have been the probable cause. The appellant was arrested

and indicted with the offence of aggravated defilement. He was subsequently tried, convicted and sentenced as aforementioned.

Being dissatisfied with the decision of the trial Court, the appellant appealed to this Court on the following grounds;

1. That the learned trial Judge erred in law and fact in failing to consider and or properly evaluate and weigh all the evidence laid before Courl thereby arriving at a wrongful determination in convicting and sentencing the appellant.

- 2. That the learned trial Judge erred in law and fact in reaching a final determination in absence of the key evidence or the key wifness. - 10

3. That the learned trial Judge erred in law when he convicted the appellant of the offence in absence of evidence to prove allthe essential ingredients of the offence.

4. That the learned trial Judge erred in law and fact in sentencing the appellant to imprisonment for 15 years, 5 months and 17 days whichis harsh and excessive in the circumstances.

The appellant prayed that this Court allows the appeal, quash the conviction and set aside the sentence. The respondent opposed the appeal. 15

# Representation

At the hearing, [t/r. Steven Birikano represented the appellant on State brief while Mr. Kyomuhendo Joseph, Chief State Attorney from the Office of the Director Public Prosecutions (ODPP) represented the respondent. The appellant followed proceedings from Luzira Upper Prison via video link. Both Counsel filed written submissions which were adopted and have been considered in this judgment.

# Appellant's Submissions

Counsel submitted on grounds 1,2 and 3 of the appeal jointly. He pointed out that the learned trial Judge held that the most reliable way of proving age is by production of a birth certificate

and testimony from parents. Further, that the learned trial Judge stated that the defence did not contest the medical evidence of proof of age and thus held that the ingredient of age was 25

proved beyond reasonable doubt. Counsel argued that the evidence proving age was not satisfactory and so the prosecution did not discharge its duty beyond reasonable doubt.

He also submitted that the learned trial Judge in resolving the second issue of whether a sexual act was performed on the victim, relied on the evidence of PW1 and the medical report yet its contents had not been proved in court by either the author or a medical expert. According to counsel, this made the conclusion of the author lacking and suspicious. ln his view, the evidence adduced to prove performance of a sexual act was not sufficient given that the rapture of the hymen was stated not to have been recent and in the absence of any other evidence, it would not be conclusive,

- 10 As regards the issue of participation of the appellant, counsel submitted that the learned trial Judge relied on the testimony of PW1 against the unrebutted defence evidence by DW1 and DW2 that the victim did not live with the appellant. He pointed out that there was a material contradiction between the witness account of PW1 and PW2 in that while PW2 testified that the appellant did not take the victim to school or pay her school fees, PW1 on the other hand - 1s testified that she was at school and her father (the appellant) paid her school fees. Counsel contended that these contradictions raise reasonable doubt as to the motive of PW2 who was the very witness who claimed to have observed the victim in a very bad condition. He added that the prosecution never attempted to lead any evidence of what that bad condition was. He prayed that the inconsistencies and contradictions be resolved in favour of the appellant. - zo Counsel submitted that the learned trial Judge ignored the defence evidence by not weighing it and giving reason as to why he did not believe the same. Further, that the learned trial Judge chose to rely on the evidence of PW1 whom he found to be consistent in her testimony but did not make any finding as to the consistency, truthfulness or othenruise of DW1 and DW2. Counsel argued that had the learned trial Judge properly evaluated the evidence in - 2s totality, he would have come to a different finding that the prosecution did not prove the case beyond reasonable doubt,

Counsel buttressed the above submissions with the decision of the Supreme Court in Mumbere Julius vs Uganda, Criminal Appeal No. 15 of 2014where it held that an appellate Court must establish whether a trial Court considered the totality of evidence to determine whether essential elements of a crime have been proved beyond reasonable doubt.

5 On ground 4 of the appeal, counsel submitted that the appellant was sentenced to 15 years, 5 months and 17 days without considering the mitigating factors. He also submitted that the sentence is harsh and excessive. He prayed that it should be set aside and a sentence of 10 years which, in his view, would be appropriate in the circumstances be imposed. On the whole, counsel prayed that the appeal be allowed and the conviction and sentence be set aside. 10

## The Respondent's Reply

Counsel was in agreement with counsel for the appellant on the duty of this Court to reevaluate the evidence and come up with its own conclusions as stipulated under rule 30(1) (a) of the Judicature (Court of Appeal) Rules and expounded in Pandya vs R [1957] EA 335,

Kifamunte Henry vs Uganda, SCCA No. 10 of 1997 and Abudala Nabulere & 2ors vs Uganda, Court of Appeal Criminal AppealA/o. 9 of 1978. 15

On the appeal itself, counsel raised a preliminary objection that the 1.t and 2nd grounds of appeal offend rule 66(2) of the Judicature (Court of Appeal) Rules (the Rules of this Court) as they do not specify the points of law and fact or mixed law and fact which are alleged to have

been wrongly decided. He relied on the decision in Mutebilsmah and Kwanuka Mubiru vs Uganda, Criminal Appeal No.080 and 089 of 2021where this Court held that: - 20

> "We agree with the respondent that ground 1 does not specif the points of law or fact or mixed law or f act that were wrongly decided. We therefore find merit in the objection and strike out ground one".

He prayed this Court to strike out grounds 1 and 2 of the appeal and he then proceeded to argue grounds 3 and 4 of the appeal. 25

On ground 3, counsel submitted that the learned trial Judge evaluated the evidence, applied the law to the facts and arrived at a proper and just conclusion. He highlighted the four ingredients of the offence of aggravated defilement that the prosecution was under a duty to prove beyond reasonable doubt, namely;

- 1. That the victim is below the age of 14 years. - 2. That a sexual act was performed on the victim - 3. That the accused is a parent or guardian or a person in a position of authority - 4. Participation of the accused.

As regards the 1't ingredient on the victim's age, counsel submitted that the learned trial Judge correctly evaluated the evidence adduced by the prosecution and arrived at a correct conclusion that the victim was below 14 years. He asserted that it is trite that age can be proved by a victim of a crime, his or her parent/guardian, through a birth certificate or immunisation card or baptism card and also by medical evidence. He submitted that N. S (PW1), told courtthat she was 13 years. He then contended that this piece of evidence was 10

- not controverted or discredited by the defence during cross examination. Further, that the victim was examined on PF3A and found to be 12 years of age because of her dental formula of 24 teeth which was in line with that age. The PF3A which the defence never contested was admitted under section 66 of the Trial on lndictments Act. lt was therefore submitted that the medicai evidence corroborated PW1's evidence on her age. 15 - Counsel added that the learned trial Judge also had the opportunity of seeing the victim and satisfied himself that indeed she was within that age bracket. He argued that since the evidence as to the age of the victim was not challenged at the trial, the defence is now estopped from contesting that fact. He prayed that this Court finds this ingredient proved beyond reasonable doubt. 20

0n the 2nd ingredient that a sexual act was performed on the victim, counsel submitted that the learned trial Judge correctly stated that this ingredient can be proved by circumstantial and medical evidence. He relied on the decision in Bastta Hussein vs Uganda, SCCA IVo. 35 of 1995 cited with approval by this Court in Magino Joseph vs Uganda, CriminalAppeal

- 5 No.27 of 2020, where it was held that the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually sexual intercourse is proved by the victim's own evidence corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduceci. He submitted that the learned trial Judge correctly stated at page 39 of the record - of appeal rhat the victim told Court that on dates she could not recall, at night between 11:00pm and 12:00am, she was at her home sleeping and when her father came back he had sex witn her. She stated that her father defiled her for two months every night and warned her not to tell anyone. 10

Counsel submitted that the victim's evidence was corroborated by PW2 who stated that in 2014, the victim was brought to her home by the mother but she was not in a good condition and when she inquired from the victim, she told her that her father used to have sex with her. Counsei contended that this evidence was corroborated by PF3A which confirmed that the victim had lost her hymen and the possible cause was a penis. 15

On the 3,0 ingredient that regards participation of the appellant, counsel submitted that prosecution proved this ingredient through the evidence of PW1 and PW2. PW1 told court that she knew the accused person (now appellant) who is her father. Further, that on a date and year she could not remember, between 1 1:00pm and 12:00am, the appellant came back home and found her in the sitting room and had sex with her. He had sex with her every night for two months and he directed her not to tell anybody. Counsel submitted that PW1's 20

testimony is corroborated by PW2 and PF3A which confirmed that indeed the victim was 25

sexually abused. He asserted that the victim properly identified the appellant who was well known to her.

To buttress his argument regarding corroboration by the evidence of PW2, counsel relied on the decision of this Court in Mayombwe Patrick vs Uganda, CACA No. 17 of 2002 which was cited with approval in Ssenyomo Charles vs Uganda, CACA No.51 of 2012.1n that case, it was held that a report made to a 3,0 party by a victim in a sexual offence where she identifies her assailant to a 3'o party is admissible in evidence. He therefore urged this Court to find the evidence of PW2 corroborative of that of PW1.

On the alleged contradiction or inconsistency in the prosecution evidence, counsel submitted that there was none, but if at all there was any, it would be a minor one that did not go to the root of the case and therefore it should be ignored. According to counsel, from the particulars of the indictment, the appellant was prosecuted on events that transpired in 2014 and not 2A16. He argued that the evidence of PW1 and PW2 that the appellant picked the victim from her granclmother in 2014 and started staying with her was not discredited or controverted by 10

the defence and so it stands. Counsel noted that DW2 whose attempt to save the appellant was futite only told Court that she started staying with the victim in 2016 but she did not tell Court where the victim was staying between 2014 and 2015 when the appellant picked her from PW2. 15

Counsel also alluded to the alleged contradictions regarding PW1's testimony and that of PW2, in that whereas PW1 told court that she was studying, PW2 contradicted her when she told court that she (the victim) was not in school. Counsel contended that such a contradiction does not exist on the record and that even if it does, it is a minor one that did not go to the root of the case. He cited Mangino Joseph vs Uganda, (supra) where this Court was faced with a similar scenario and it held that major contradictions and inconsistencies will usually 20

result in the evidence of the witnesses being rejected unless they are satisfactorily explained. lvlinor ones on the other hand will only lead to rejection of the evidence if they point to 25

deliberate untruthfulness. Counsel submitted that the issue of who was paying school fees for the victim does not in any way go to the root of the case. He prayed that this Court finds this ingredient proved beyond reasonable doubt.

On ground 4, counsel submitted that the Supreme Court in Kwalabye Benard vs Uganda,

- 5 Criminal Appeal No. 143 of 2001cited with approval in Kato Kajubi Geoffrey vs Uganda, SCCA No. 20 of 2014 held that an appellate Court is not to interfere with the sentence imposed by the trial court which has exercised its discretion on sentence unless the exercise of 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 an important matter - or the circumstances which ought to be considered while passing the sentence or where the sentence is imposed on a wrong principle. 10

Counsel also submitted that the sentence is neither harsh nor excessive given the circumstances. He argued that there is need to protect the girl child by punishing those who subject them to sexual abuse severely and therefore reducing the appellant's already lenient

sentence will only amount to a mockery of justice. He pointed out that the aggravating factors outweigned the mitigating factors as the offence was premeditated and the victim is a daugnter of the appellant who was supposed to protect her and not molest her. 15

Counse! prayed that this appeal be dismissed and the sentence of 15 years,5 months and 17 days'imprisonment be upheld.

#### The Appellant's Response to the Preliminary Objection and Submissions in Rejoinder 20

ln response to the preliminary objection raised by counsel for the respondent, counsel submitted that the grounds of appeal clearly set out the points of objection to the decision appealed against. He invited this Court to take into account the provisions of Article 126(2) (e) of the Constitution in the interests of justice and consider the impugned grounds of appeal.

He therefore prayed that the objection be overruled and the appeal be heard on its merits. He 25 supported this prayer with the decision in Ndyaguma vs Uganda, Criminal Appeal No.263 of 2006 where this Court overruled an objection challenging the grounds of appeal for offending rule 66 (2) of the Rules of this Court. ln that case, this Court found that the two grounds sufficiently set out the objection to the decision appealed against although it observed tnat the grounds of appeal could have been drafted better.

ln rejoinder to the submissions on the merits of the appeal, counsel contended that the evidence on participation of the appellant in the offence was not adequate and that the appellant stated that he never lived with the victim. Further, that the victim was living with her elder sisi:er (DW2) who testified in court and in cross examination her testimony remained

- consrstent rhat the victim was living with her and not with the appellant. Counsel argued that the rearned Jucige having noted the two conflicting stories at page 40 of the record of appeal, he ought to have found that reasonable doubt had been raised and remained unresolved by the prosecution evioence. He pointed out that the learned trial Judge did not give any reasons for disregarding the consistent testimony of DW1 and DW2. He also stated that the mother of 10 - the victim who picked the victim was not called to testify. 15

On ground 4, counsel contended that the sentence of 15 years,5 months and 17 days' imprisonment was arrived at in disregard of the mitigating factors and therefore it was harsh and excessive. He reiterated his prayer that the appeal be allowed and, the conviction and sentcnce r:e set asicie,

## 20 Resolution by Court.

We have carefLillll studied the court record and considered the submissions of both counsel as well as the law and authorities cited to us together with those not cited but which we find relevant to the issues in this appeal. We bear in mind the duty of this Court as a first appellate Court under rule 30(1) (a) of the Rules of this Court which both counsel have ably addressed us on. Fiowever, before we delve into the merits of the appeal, we shall first deal with the

preliminary objection raised by counsel for the respondent to the effect that grounds 1 and 2 of this appeal offend rule 66(2) of the Rules of this Court and should be struck out.

The appellant submitted in reply that the said grounds of appeal do not offend the provisions of rule 66(2) of the Rules of this Court as they clearly set out the points of objection to the

5 decision appealed against.

Rule 66(2) of the Rules of this Court provides thus; -

"The memorandum of appeal sha// sef forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, speciiying, in the case of a first appea[ the points of law or fact or mixed law and fact, and in the case of a second appea[ the points of law or mixed law and fact, which are alleged to have been wrongly decided, and in a third appea[ the matters of law of great public or general impoftance wrcngly decided".

The grour'iris that are said to offend rule 66 (2) of the Rules of this Court are: -

- 1. That the learned trial Judge erred in law and fact in failing to consider and or properly evaluate and weigh all the evidence laid before Court thereby aniving at a wrongful determination in convicting and sentencing the appellant. - 2. Thet the learned trial Judge erred in law and fact in reaching a final determination in absence of the kev evidence or the key wlfness.

20 ln view of ruie 66 (2) of the Rules of this Court, our analysis of the above grounds of appeal clearly shows tnat they offend that provision. ln both grounds, the appellant did not clearly specify the grounds of objection to the decision appealed against. Neither do they specify the points of raw or fact or mixed law and fact which are alleged to be wrongly decided.

ln Muhereza & another vs Uganda, Criminal Appeal IVo.66 of 2011, this Court struck out ground 2 of the appeal in that case for being too general and offending rule 66(2) of the Rules of this Ccurt which requires that a memorandum of appeal sets forth concisely and without

argument the grounds of objection to the decision appealed against specifically the points of law or mixed fact and law which is alleged to have been wrongly decided.

ln a recent decision of this Court in Makuba Alimaks vs Uganda, Criminal Appeal No. 0384 of 2019 where a preliminary objection was raised that grounds 1 to 4 of the appeal offend rule 66(2) of the Rules of this Court, it was held as follows;

'lt is apparent that the manner in which these grounds of appeal were framed offend rule 66(2) of ihe ,lules cf this Court which provides.,. ... ......

The case of Ndyaguma vs Uganda, (Supra) relied on by the appellant's counsells disfincf from the current appeal since in that case, the grounds of appeal was found to set out the objection to the 'Cectsion appealed against save for the fact that they could have been drafted better. ln the cunent appeal the grounds do not sef out specifically the grounds of objection to the decision appealed aqainst. Neither do they specify the points of law or fact or mixed law and fact which are alleged to ha'te been wrongly decided.

ir, tlie preinises, uve uphold the preliminary object and accordingly, grounds 1-4 of this appeal are si.'uck oui ior offending rule 66 (2) of the Ru/es of fhis Court."

Grounds 1, 2 and 4 of the appeal in Makuba Alimaks vs Uganda (supra) were framed exactly in the same way grounds 1, 2 and 3 of this appeal have been framed. No wonder because counsel Stephen Birikano appeared for the appellant in both appeals. Unfortunately for the appellant, as we did find in that case, the two grounds of appeal raised by counsel for

- the respondent and ground 3 which was not objected to in this appeal offend rule 66 (2) of the R.ules of thrs Court as they neither specify the points of law or fact or mixed law and fact which are alleged to have been wrongly decided. Accordingly, we strike out all those 3 grouncjs ci appeal. 20 - Before thts Co.rrt took leave of the matter in Makuba Alimaks vs Uganda (supra), it observeo wirh concern as follows; 25

. ., fhts ls the 2no appeal in fhis sessio n where the same counsel has neglected his duty to effectively and efficiently provide legal representation to an appellant under Sfafe brief as stipulated under rule 3(a) of the Judicature (Legal Representation at the Expense of the Sfafe) Ru/es, 2022 (State Brief Rules) that regulates Sfafe briefs. We did encounter a similar situation in Kayanja Hassan vs Uganda; Court of Appeal Criminal Appeal No. 206 0f 2021 where we found thatthe grounds of appeal offended rule 66 (2) and struckthem out.

,t'v'e do strongly admonish counselSteven Birikano for the sloppy manner in which he represented Lne appelant in this appeal and we are of the view that such advocates shou/d not be appointed on State brief unless they demonstrate competence in handling their clients'cases. "

- We note that the same counsel represented the appellant in this appeal which was part of that same session and he made a similar mistake. We therefore reiterate our observation in that case but now with more emphasis that counsel Steven Birikano needs to demonstrate compelence in nis representation of his clients before he can be appointed on State brief. Having slruck out grounds 1, 2 and 3 of this appeal, we now proceed to resolve the only 10 - remaining ground 4 on sentence. L5

## Ground Four

On this :i:orjnC ccunsel forthe appellant submitted thatthe appellant was sentenced to 15 years, 5 nionths and 17 days in disregard of the mitigating factors and that the sentence was harsh and excessive. He prayed that it should be set aside and a sentence of 10 years which, in his vie",/, wotlro be appropriate in the circumstances be imposed.

Conversely, counsel for the respondent asserted that the sentence is neither harsh nor excessive given the circumstances that the appellant is the victim's father who premediated the offence yet he ought to have protected her instead of molesting her. Counsel emphasised the neec tc prctect the girl child by punishing those who subject them to sexual abuse

severely Accordrng to him, reducing the already lenient sentence imposed on the appellant 25

would amount to a mockery of justice. Counsel prayed that the appeal be dismissed and the sentence be upheld.

The sentencing proceedings of 2710312019, show that the prosecution presented the following aggravating factors: - "the accused has no previous criminal record, the victim was 12 years and the accused was a father, I pray for a stiff sentence'. The defence presented the following mitigating factors: - "the accused has no record and has been on remand since 14/10/2016 i.e. two years and five

montits and 1,7 ciays. I pray for 10 years' imprisonment."

The learned trial Judge had this to say in his sentencing ruling; -

"l have considered the aggravating and mitigating factors as submitted by the prosecution and defence. I have noted that the accused was a father. lwill sentence the accused to 15 years, 5 months and 17 days. Since the accused has been on remand for 2 years, five months and 17 days. ! wil! reduce the sentence and sentence the convict to 13 years' imprisonment". 10

It is clear irom the above extract of the sentencing ruling that the learned trial Judge stated that he had considered the aggravating and mitigating factors submitted by the prosecution

and defence. He singled out the fact that the appellant was a father and he also deducted the period the appeilant had spent on remand before arriving at the final sentence of 13 years' imprisorrmenr. however, we observe that the learned trial Judge did not specifically state that he hao consioered the fact that the appellant had no record of previous conviction. ln Aharikunaira lustina vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015, it was heid: - 15 20

> 'Before a convict can be sentenced, the trial court is obliged to exercise its discretion by considering meticulously all the mitigating factors and other presentencing requiremenfs as elucidated in the Constitutions, sfafufes, Practice Directions together with general principles of sentencing as guided by case !attr."

After anatysing the record of sentencing proceedings and ruling in the case, the Supreme then stated thus; 25

"The appellant while mitigating her sentence stated that she was a first offender, had been on remand for 3 years, she was of 63 years old mother with six children who needed her attention and therefore prayed for lenience.

The holdings of the trial court as laid out above do not reflect consideration of any of the mitigating factors but rather only the aggravating factors. The appellant mitigated her sentence before the trial iucige however when giving his decision, the learned Judge did notweigh the mitigating factors against the aggravating factors. Ihese included the fact that the convict rvas first offender, of advanced age and had children who needed her attention as the suruiving spouse.

The trialjudge therefore ignored putting in consideration the mitigating factors raised by the appellant whrle passing the sentence." {the first emphasls is ours/

It is our view, based on the above decision, that the learned trial Judge in this case ought to have demonstrated that he had meticulously considered the appellant's only mitigating factor that he was a first offender by weighing it against the aggravating factors. He made a blanket statenrent that he had considered the aggravating and mitigating factors as submitted by the

prosecr;iion ano cjefence. We therefore find that he erred by so doing and so we accept the appeltai'rt's contention that his sentence was arrived at without considering his mitigating facror. 15

Pursuant to section 139 (1) of the Trial on lndictmentAct (TlA), we now have to determine whethei' that failure has, in fact, occasioned a failure of justice to the appellant to justify interfering with the sentence. Section 139 (1) of the TIA provides as follows: -

## 'i'3J. Reversability or alteration of finding, senfence or order by reason of error, etc.

/1) Subiect to the provisions of any wriften law, no finding, sentence or order passed by the High Ccurt shall be reversed or altered on appeal on account of any error, omission, irregularity or misuirecnort rrr the sltmmons, warrant, indictment, order, judgment or other proceedings before or during the tialunless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of 1ustice."

As we handle the issue, it will entail considering the range of sentences in similar offences that have resemblance to the facts of this case and inevitably we shall also be addressing the second leg of ground 4 on the complaint that the sentence is harsh and excessive.

ln Musoke Peter Sonko vs Uganda, Court of Appeal Criminal Appeal No. 0127 of 2020

- 5 the appellant was convicted of aggravated defilement of his 12-year-old biological daughter 3 times and sentenced to 25 years' lmprisonment. On appeal, this Court set aside the sentence ror reason that the learned trial Judge did not take into account the period spent on rema,rc oy the appellant. This Court exercised its powers under section 11 of the Judicature Act to serrtence the appellant afresh. lt found a sentence of 25 years appropriate and upon - deducring rhe period of 2 years the appellant had spent on remand, it sentenced the appellant to 23 years' imprisonment. 10

ln Kaserebanyi James vs Uganda, [20141UGCA 89 the appellant defiled and impregnated his 1S-year-old daughter. He was convicted and sentenced to life imprisonment. On appeal, this Court while confirming the life sentence stated that a father who defiles his daughter deserves a de.errent sentence.

ln Ntambala Fred vs Uganda, Court of Appeal Criminal Appeal IVo. 0177 of 2009, the appellant who defiled his daughter was convicted and sentenced to 14 years' imprison,ment which was confirmed by this Court on appeal.

The above decisions indicate that the range of sentences in aggravated defilement cases where tne appeliants defiled their biological daughters is between 14 years to life imprisor:.ment. V/e therefore find that in spite of the learned trial Judge's failure to state that he hacj taken into account the fact that the appellant was a first offender, no failure of justice was oc'.;asiorrecl to the appellant who repeatedly defiled his daughter over a period of 3 moniirs. 'ine urtrmate sentence imposed upon him was below the range of sentences in 20

similar offences which makes his sentence lenient and not harsh and excessive as contended for him.

ln the premises, we find no reason to interfere with the sentence of 13 years'imprisonment imposed on the appellant. We accordingly confirm it and dismiss ground 4 of this appeal for

5 lack of merit.

| | We so order | |----|--------------------------------------------| | | Dalted at Kampala this. .day of 2024 | | 10 | BORION BARISHAKI JUSTICE OF APPEAL | | 15 | LEN OBURA OF APPEAL JUSTIC | | 20 | (-- ra SWATA JUSTICE OF APPEAL |