Shazilly v Uganda (Criminal Appeal 40 of 2020) [2023] UGCA 221 (16 August 2023)

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

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

(Coram: R. Iluteera, DCJ, C. Gashirabake, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO.40 OF 2O2O

(Arising.from Criminal Session No. HCT-00-CR-CS-020 I /20 I 8)

#### Blll'WEIIN

## SHAZILLY ABDULLAH APPEI,LANT

#### AND

# UGANDA.... RESPONDENT

(Appeal .from the Jutlgmenl of the I IiSh Court of Uganda I k den at Kampala, hy Jane l"rances Abotlo. J. delivered on 05'h Decemher, 2019) 15

#### . IUDGMENT OF COURT

#### Introduction

l.l The appellant was indicted for aggravated defilement c/s 129(3)(a)(a) and (c) ofthc Penal Codc Act Cap 120.

- 2.] 'Ihe facts of the case are that the appellant, who occasionally visitcd the home of the victim's auntie, had sexual intercourse with thc victim twice in the month of June 2017, and promised to give her money and buy her clothes in exchange. Owing to the lact that the appellant had nevcr honored his promise, the victim declined to have sexual intercourse with thc appellant for the third time. - 3.] On the fateful day, PW4 found the appellant seated on the bed together with the victim. On being askcd why she had not donc hcr chores and the whereabouts of the children, the victim got scared and tried to run away, prompting PW.4 to beat her up together with the appellant.

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- <sup>5</sup> 4.] PW.3, a staff working for an NGO called Crane, upon getting information that the victim had been defiled by the uncle paid her a visit at the auntie's home and reported the matter to the Police. The appellant was tried and he was convicted and sentenced to 32 years, 3 months and 28 days' imprisonment. - 5.1 The appellant being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on two grounds set out in the Memorandum of Appeal as follows; 10 - 1 . 'l'hat the learned lrial Judge erred in law and.foct when she failed lo properly evaluale the evidence and opply tha correct principles ts/ luw thereby convicting the appellctnt basing on evidence.full qf conlradiclions ond inconsislencies thus occasioning <sup>a</sup> <sup>m</sup>iscarr iage ofj ust ice. - 2. T'hat without prejudice to the foregoing, the leorne(l trial judge erred in luw and.fact when she passed a sentence oJ 35 years' imprisonment upon the uppellanl which is illegal, horsh and exce.ssive thereby occusioning u miscurriage qfjustice.

#### Rcrrrcscntation

6.] At the hearing of the appeal, the appellant was represented by Mr. Richard Kumbuga, while the respondent was represented by Mr. Joseph Kyomuhcndo, Chief State Attorney.

## (i round one

That the learned trial Judge erred in law and fact whcn shc failed to propcrly cvaluatc thc cvidcnce and apply thc corrcct principlcs of law thereby convicting thc appellant basing on cvidence full of contradictions and inconsistcncics thus occasioning a miscarriage ofjustice. 2lPage D

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#### <sup>5</sup> Submissions for thc anncllant

- 7.] It was submitted that the ingredients of participation of the appellant in the commission of the alleged offence, agc of the victim and Appcllant being in authority over the victim were not made out. It was therefore crroneous for the leamed trial Judge to decide otherwise hence occasioning a miscarriage ofjustice. - 8.] On whether the victim was below l4years, it was submitted lor the appellant that there was a lot of conflicting evidence in this regard. 'l-hat PWI in her testimony stated that PW2 (victim) was l2years old basing on PF3A- EXH. l. Counsel argued that PW2 stated that she did not know whcn she was born. 1'hat upon cross examination she statcd that her auntic told her that she was 16 ycars and shc did not know how old she was in 2017. PW4, who is the auntie stated that thc victim was I I ycars, whcreas hcr lalhcr stated that shc was l5years and she was bom in 2005 in Police tlospital in Arua. Counscl argued that the evidence of PW5 contradicted the evidcnce of PW1, PW2 and PW3 in regards to agc of the victim. - 9.] Counsel further contended whether there was a sexual act performcd on the victim and by the appellant, counsel submitted that Exh.1, PF'3A, provided that the victim was sexually active and that is thc rcason she had STDS (Sexually Transmitted Diseascs), however it was noted that the appellant was negative meaning PW2 contracted S'I'DS from another pcrson. Counsel argucd that the evidence of PW4 contradicts PW2 who testified that shc had sexual intercoursc two times while PW4 statcd that the victim had scxual intercourse 3 times. - 10.] It was also contended whether the appellant had authority over the victim, counscl for the appellant submitted that through the trial, the victim

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<sup>5</sup> never referred to the appellant as her uncle. PW3 on the other hand testified, during cross examination, that she did not know where the appellant was staying and that the aunt told her that thc appellant was her husband. Counsel submittcd that this lcaves thc possibility that the appcllant was just a mere visitor. Whereas, PW4 testified that the appellant was his friend, they used to stay togcther as husband and wife. Counsel argued that the evidcnce of PW4 was not reliable bccause there was no proof of marriage. Counsel submitted that the evidcnce of the appellant was consistent and very categorical in his dcfence.

#### Submissions for thc rcsnondcnt

- <sup>I</sup>1.] Counsel for the respondent submitted that the prosecution proved all thc ingrcdients of aggravatcd dcfilcmcnt. 15 - 12.) lt was submitted that whercas thc victim told Court that shc did not know the year shc was bom, she was l6years old at the time of her testimony in 2019. In counsel's opinion the victim revealed the source of her information bcing her aunt. It was further argued that the leamed trial Judge relied on the scientific evidence of PWI who examined the victim and found her to be 1 2years basing on the physical examination. This was corroborated by the PI"3 which put the victim at l2years basing on physical development that she did not have pubic hair and she had set of 25 teeth. In his view, this evidcnce was corroborated by the evidence of PW5, the father of the victim who stated that she was bom in 2005 and that she was l5 years at the time of the testimony. - 13.] On contradictions, inconsistencies and falsehoods of witnesses, counsel submitted that thcre are many authorities laying down how courts should approach such witnesses. Counsel cited Kato Kajubi Godfrey vs. Uganda,

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- <sup>5</sup> SCCA No. 20 2012, where the Supreme Court lollowed its position in Serapio Tinkasimire, SCCA No.27 of 1989, and it held that it was not that every inconsistency will result into the testimony of the witncss being rcjected. - 10

14.1 Counsel for the respondent submitted that the prosccution evidence was not marred by any inconsistences or contradictions and ifany, they were too minor to shake the evidencc. They did not go to the root ofthe case and they could be explained.

- l5.l On the performance of a sexual act, counscl submitted that it is trite that a sexual act can be proved by the victim hcrsclfor mcdical evidencc. Counsel cited Hussein Bassita vs. Uganda, S. C. C. A No.35 of 1995, where court held that sexual act can be established either by direct or circumstantial evidence and it is usually thc victim's own evidence that offers the best proof of penetration, and then medical evidence and or other evidence may offer corroboration. Counsel noted that the testimony of PW2 was corroborated by the evidencc of PW4 and PW3. - 16.l On whether the appellant was a pcrson in authority over the victim, PW4, testified that she was living with the appellant as husband and wife. The two wcre in charge of thc victim's survival and wclfare. 'l-hat they were in loco parcntis of the victim and no wonder the appellant took advantage of his position to dcfilc and then promise to givc her money and clothes. 'Ihc appellant and PW4 had authority over thc victim.

### Considcration of Cou rt

17.) 'fhe powers of this Court are spelt out in Rule 30(l)(a) of the Judicature (Court of Appcal Rules) Directions S. I l3-10. The appellate court is mandated to re-evaluatc thc evidcncc bclorc thc trial court as well as

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the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellatc court is empowered to subject the whole ofthc evidcncc to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witncsses first hand. This duty was stated in Selle & another <sup>v</sup> Associated Motor Boat Co. Ltd.& othcrs, (1968) E. A 123.

l8.l 'l'he law on thc ellect of contradictions and inconsistencies in the prosecution evidence was articulated in the case of Obwalatum Francis vs. Uganda, Suprcmc Court Criminal Appcal No. 30 of 2015, where the Supreme Court held that;

> "the lav, on inconsirlency is to lhe e.//bcl lhctl u'here there are utnlradiclions and discrepancies belween proseculion v'ilnesses v,hich are minor orul e/ a trifial nolure, these may be ignored unless lhey point to deliberate untruthlulncss. llowever, whcre contradiclion:i and discrepuncies are grave this would ordinarily leacl to the re.iection oJ such leslimony unless sali.s./itclorily explained"

l9.l We havc perused thc proceedings of thc trial court, PW1 tcstified that when shc physically examined the victim, shc was l2ycars of agc. PW2 the victim, stated that she didn't know the year she was bom but her auntie told her she was16 years. PW4, testified that she was ll years at the time of the act. Whereas PW5, testificd that the victim was 15 years at the time of the testimony meaning she was 13 ycars at thc time of the act. In Francis Omuroni - Vcrsus- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, Court hcld that:

> "Apart from medical evidence, age may also be proved by birth certificate, the victim's parenls or guardion and by obsenalion ancl common sense

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20.1 The trial court in assessing the age of the victim held that; "It has been decided by courts that other ways of proving the age of a child that can equally be conclusive are; the court's own observation and common sense assessment of the age of the child. The court had an opportunity to observe the victim as she testified via video link and she appeared to be younger than 15 years. It is this courts considered view that the victim was under 14 years in 2017. Therefore in agreement with the assessors I find that the prosecution *proved this ingredient beyond reasonable doubt.*"

- Considering the evidence on record, the contradictions and $21.1$ discrepancies pointed out in the appellant's submissions, are very minor. They do not warrant the demolishing of the credibility of the witnesses "testimonies". In our judgment, no miscarriage of justice was occasioned by the trial court ignoring the contradictions. The fact remained that the victim was still below the age of 14 years irrespective of the fact that there were contradictions as to the exact age of the victim. The trial court considered its own observation and common sense assessment and came to a conclusion that the victim was below 14 years of age. We therefore cannot fault it. - The other contention of the appellant was that there was no sexual act 22.1 or penetration of PW1. There was undeniable evidence by PW1, that the victim had a raptured hymen, though not a recent rapture. This fact corroborated the victim's evidence that the first time the appellant forced her into sex. She had sex the second time with the appellant but she resisted the third time because he failed to fulfill the promise of buying her clothes. The appellant was well known to the victim and the act was not a one off. Having evaluated the lower court record, we agree with the findings of the trial court that there was a sexual act and it is the appellant who performed the act

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- $23.1$ The last contention on this issue, was whether the victim was under the authority of the appellant. PW2 testified that the appellant used to come at home and visit the aunt. PW4 testified that they used to stay together as husband and wife. - $24.1$ As regards the place of authority, section $129(4)$ (c) of the Penal Code Act gives meaning to a person in authority as being any person acting in place of parent or parents to the victim or any person reasonable for the education supervision or welfare of the child and persons in a fiduciary relationship with the child. - 25.1 Considering the testimony of PW2 and PW4, we are convinced that the ingredients were fully proved beyond reasonable doubt as assessed by the trial court. - $26.1$ This ground fails.

## Ground 2

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That without prejudice to the foregoing, the learned trial judge erred in law and fact when she passed a sentence of 35 years' imprisonment upon the appellant which is illegal, harsh and excessive thereby occasioning a miscarriage of justice.

## Submissions for the appellant

$27.1$ Counsel submitted that if this court was inclined to sustain charges against the appellant then they should be taken as simple defilement. In the alternative, give a lenient sentence as required by the principle of consistency. (See Aharikundira Yustina vs. Uganda, SCCA No.27 of 2005). Counsel cited German Benjamin vs. Uganda, Court of Appeal Criminal Appeal No 142 of 2010 where the victim was 5 years old and the appellant was 35

years old. The appellant had been sentenced to 20 years' imprisonment but on appeal the sentence was reduced to 15 years' of imprisonment.

28.1 Counsel stated that in this case, the victim was 11 years at the time of the alleged commission of the offence, the appellant was 37 years, setting an age difference of 26 years. According to the appellant, he was a first time offender. That the Judge considered all these mitigating factors, she could not have come up with a harsh sentence of 35 years' imprisonment in respect to the appellant. Counsel prayed that the conviction be quashed, sentence set aside or reduced to such terms as this court deems fit.

## **Submissions for the respondent**

- Counsel for the respondent, was of the view that the sentence of 35 years $29.$ 15 was neither harsh nor excessive. That the learned trial Judge considered the mitigating factors and sentenced the appellant to 32 years, 3 months and 28 days' imprisonment. - Additionally, counsel submitted that the offence of aggravated 30.1 defilement attracts a maximum sentence of death and starting point for sentencing is 35 years according to **The Constitution (Sentencing** Guidelines for courts of judicature) (Practice) Directions 2013. Counsel conceded to the principle of consistency as cited by the appellant counsel

## **Consideration of Court**

$31.$ 25 "Section 129 $(3)$ provides that;

> 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.

*Section 129(4) provides that;* 30

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*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 the 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 committed;* "

(*d*)*where the victim of the offence is a person with a disability; or (e)where the offender is a serial offender.*

- 32.1 Principle 19(1) of the sentencing guidelines provides that the court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence. According to the third schedule item 3, aggravated defilement attracts a maximum sentence of death and starting point is 35 years. - It must be appreciated that a sentencing court has the discretion in $33.1$ sentencing but it has to exercise this judiciously. As the first appellate court, we cannot interfere with the trial court judgment on the sentence unless it is found that the trial court has misdirected itself as regards the findings of facts and law. If the trial court misdirected itself, then this court will interfere with the said sentence on the terms it considers fit after considering both the law and the evidence on record. We are guided by the Kenyan Court of Appeal decision in **Dismas Wafula Kilwake vs Republic, [2018] eKLR**, where the Court of Appeal set out the factors to be considered in sentencing under the **Sexual Offences Act** as follows:

"[We] hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to

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<sup>5</sup> impose ony of the sentences prescribed, if the circumstonces oI the cose so demond.

> On the other hand, the court connot be constroined by section 8 to impose the provided sentences if the circumstonces do not demond it. The orgument thot mondotory sentences ore justified becouse sometimes courts impose unreosonoble or lenient sentences which do not deter commission of the porticulor offences is not convincing, gronted the express riqht of oppeal or revision ovoiloble in the event of orbitrory or unreasonoble exercise of discretion in sentencing."

34.1 Under this ground this court has the rolc to establish whcthcr the trial court correctly applied the law or legal principlc in arriving at both thc conviction and sentence. Considering whethcr a sentcnce is harsh and cxcessive, courts are guided by thc principle of consistcncy provided for under principle 6(c) of thc sentencing guidelines. Constitution (Sentencing Guidelines for Courts of Judicaturc) (Practicc) Directions, 2013, which providcs that;

" livery court shull u,hen sentencing an o//bnder lake into account ( c L1bt\_tSqdJpfeg ryj;te4qy <sup>w</sup>i t h u p p r o p r i a t e <sup>s</sup>e n t e n c i <sup>n</sup>g <sup>I</sup>e v e <sup>I</sup>s a nd other means o/ dealing v'ilh o/fenders in respacl o/ similar o/fbnce"' committed in sintilur circumslunces; "

- 35.1 In Bacwa Benon vs. Uganda, CACA No. 869 of 2014, this court upheld the conviction ol life imprisonment imposed on the Appellant who being a guardian to the ten-year-old victim had sexual intercourse with her and infected her with HIV. In Kabazi Issa vs. Uganda, CACA No.286 of 2015, where this court confirmed a sentence ol32 years' imprisonment upon the Appellant who had been convicted of aggravated defilement of two minors who were each below the agc of l4 years. - 36.] Flaving thoroughly subjectcd the facts ol this casc to a fresh rcappraisal, and the fact that appellant is a first timc offendcr, has a large family <sup>11</sup>| t, a g <sup>e</sup> w

- of five children and has been on remand for two years and given the Court precedents we have considered above, we have come to the conclusion that the sentence of 32 years, 3 months and 28 days imprisonment that the trial Judge imposed was appropriate. - Consequently, the appeal fails. $37.]$

We so Order 10

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Dated at Kampala this ....................................

**RICHARD BUTEERA DEPUTY CHIEF JUSTICE**

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**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

**OSCAR KIHIKA JUSTICE OF APPEAL**

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