Uganda v Kalyango (Criminal Session Case 118 of 2020) [2024] UGHC 724 (13 February 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO CRIMINAL SESSIONS CASE No. 0118 OF 2020 UGANDA:::::::::::::::::::::::::::::::::::

## **VERSUS**

KALYANGO MARTIN WIZLY::::::::::::::::::::::::::::::::::::

## **BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA** SENTENCE AND REASONS FOR SENTENCE

This matter first came up on 11th of January, 2024 for Plea Taking, the Accused was indicted with the offence of Aggravated Defilement Contrary to Section 129 (3), (4) (a) of the *Penal Code Act as amended*. He pleaded not guilty and the case was fixed for commencement of hearing on 17th January, 2024. On that day the Prosecution led evidence under Section $66(1)$ and $(2)$ of the Trial on Indictment Act and tendered in Police Form 24 A dated 24th December, 2019 which was admitted and marked as PEX1. The Prosecution further led evidence of three witnesses who testified and included, NNS the victim, Wasswa Shafiq the victim's twin brother, Pw3 Nansubuga Hasifa the mother to the victim. Upon hearing evidence of the above-mentioned witnesses, the matter was adjourned to 25th January 2024 for further Prosecution hearing.

On 25th January 2024 when the matter again came for further hearing of the Prosecution's case, the Accused chose to change his plea and the indictment was read to him afresh. It was alleged that on 11th December, 2019 at Mulago Zone Mukono Municipality in Mukono District, the Accused performed a sexual act with the victim N. N. S, a girl aged 4 years. The Accused pleaded guilty to the indictment.

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The facts of the case were then read back to the Accused by the learned Senior State Attorney George Bigira as follows:

The victim N. N. S. was aged 4 years at the material time residing in Mulago Zone in Mukono District with her Mother Nansubuga Hasifah. The Accused was a resident of Mulago Zone in Mukono District. On 14th December, 2019 at around 20:00 hours, Nansubuga Hasifa, the victim's mother and her brother Waswa Shafiq had gone to fetch water from the tap in Mulago Trading Centre. While at the tap, the victim was grabbed by the Accused person who took her behind the rental buildings. The Accused then removed the victim's knickers and had sexual intercourse with the victim. Upon the victim feeling pain, she started crying to which the Accused threatened to cut her head, the victim's brother then went and immediately informed their mother about the incident, the victim's mother responded immediately by going to the scene where she found the Accused sleeping on top of the victim, she made an alarm which caused the Accused to run away. The matter was then reported at Mukono Police Station and the Accused was subsequently arrested by the locals. On the 11th day of December, 2019, the victim was examined on PF3A and found to be of an apparent age of 4 years. Her external vulva was mildly swollen and tender whereas the labia minors were bruised and tender.

On the 24th day of December, 2019, the Accused was examined on PF24A and was found to be of an apparent age of 19 years with normal mental status. The Accused was charged with Aggravated Defilement for which he is before Court now. Both Police Forms; PF3A and PF 24A were tendered as part of the facts.

After Court ascertaining from the Accused that the facts as stated were correct. he was convicted on his own plea of guilty for the offence of Aggravated Defilement Contrary to Section 129 (3), (4) (a) of *The Penal Code Act as amended*. While submitting in aggravation of sentence, the learned Senior State Attorney stated that; he had no record of previous convictions, the Accused is

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presumed a first-time offender. However, he defiled a child merely aged 4 years who is tender and vulnerable and as a man of 19 years, the Accused had no justification whatsoever, he was fit to be a father. The Prosecution again submitted that the crime was committed at night and the child was put at risk of death or to be infected by HIV and the offence of defilement is rampant in Uganda.

That Prosecution prayed for a deterrent punishment to send a strong warning to the other would-be offenders and that if this is done, the girl child would be safe in our communities. In a nutshell, the learned Senior State Attorney prayed for a custodial and deterrent sentence so that the Accused would be able to learn from his actions.

In mitigation, learned Counsel for the Accused contended that the convict is a first-time offender who has saved Court's time by pleading guilty to the charges. That at the time the convict committed the crime, he was barely 18 years, he is a young man capable of reforming. Counsel further submitted that the convict has been on remand for 4 years and one month and during Medical examination, he was confirmed to be HIV Negative.

The Defence Counsel further argued that the victim had minor injuries as seen at page 3 and 4 of the Medical Examination Report and further indication on the pictorial is that the hymen is still intact. That the relatives of the convict tendered a baptism card showing that he was born on 26th January,2001 which was issued by our lady of Nabingo Catholic Parish in 2005. Counsel further brought to the attention of Court that the relatives of the convict stay in Luwero and would avail a copy of the baptism card on a later date. She prayed that time spent on remand be deducted from the sentence given.

The maximum penalty for the offence of Aggravated Defilement contrary to section 129 (3), (4) (a) of the *Penal Code Act*, is death. However, this punishment

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is by sentencing convention reserved for the most egregious forms of perpetration of the offence such as where it has lethal or other extremely grave consequences as provided by Regulation 22 of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 to include; where the victim was defiled repeatedly by the offender or by an offender knowing or having reasonable cause to believe that he or she has acquired HIV/AIDS, or resulting in serious injury, or by an offender previously convicted of the same crime among others

In the instant case, death was not a very likely or probable consequence of the act, the evidence on record show that the victim sustained minor injuries, her hymen was still intact, she was not infected with HIV save for the bruises sustained by the victim.

Court notes that when imposing a custodial sentence on a person convicted of the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act as amended, the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 stipulate under Item 3 of Part I (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule, that the starting point should be 35 years' imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the prevailing mitigating factors.

I am alive to the fact that the manner in which this offence was committed did not create a life-threatening situation, in the sense that death was not a very likely immediate consequence of the act such as would have justified the death penalty but the instances are grave to warrant a deterrent custodial sentence, especially because of age difference between the convict (19 years) and the victim only (4 years). It was not a repeated offence since the convict had not committed similar acts before. The convict time when the victim had been left alone with her twin brother and zeroed on this as an opportunity to defile the vulnerable child

The Court of Appeal in the case of Ninsiima v. Uganda Crim. Appeal No. 180 of 2010 opined that the sentencing guidelines have to be applied taking into account past precedents of Court, decisions where the facts have a resemblance to the case under trial and in that regard, I have considered the decision in Kato Sula v. Uganda, C. A. Crim. Appeal No 30 of 1999, where the Court of Appeal upheld a sentence of 8 years' imprisonment for a Teacher who defiled a primary two school girl.

In the Court of Appeal Case Criminal Appeal 16 of 2012, Friday Yasin Vs Uganda, the Court of Appeal set aside a sentence of 19 years' imprisonment which had been imposed on the convict aged 19 years after defiling a girl aged 4 years. Court went on and stated that, a sentence of 19 years where the Appellant had spent almost 5 years on pre-trial remand is definitely excessive and harsh in the circumstances. It is out of range with sentences for this type of offence. The sentence was set aside and substituted with 15 years' imprisonment.

Furthermore, In the case of Bikanga Daniel v Uganda Court of Appeal Criminal Appeal No. 38 of 2000 [unreported] the Appellant had been convicted of defilement of a girl under 18 years of age. He detained the girl for 2 days in his house during which he repeatedly defiled her. He was sentenced to 21 years' imprisonment. On Appeal this sentence was found to be harsh and excessive. It was substituted with a sentence of 12 years. Again, in the case **Kabwiso Issa** $\bf{v}$ **Uganda Supreme Court Criminal Appeal No. 7 of 2002 [unreported]. The** Appellant was convicted of defilement and sentenced to 15 years' imprisonment. On Appeal to the Court of Appeal the sentence was confirmed. However, on further Appeal to the Supreme Court the Court found that the trial Judge had not taken into account the period the Appellant had spent on remand and reduced the sentence to 10 years' imprisonment.

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Important to note is that, in both these cases the age of the victim is not discussed though in Bikanga Daniel v Uganda [supra] the multiple sexual intercourse with the victim over a period of two days may have been an Aggravating factor.

It is worth noting that the requirement in the guidelines for considering a plea of guilty as a mitigating factor does not confer a statutory right to a discount but vests everything at the discretion of Court. However, where a Judge takes a plea of guilty into account, it is important that he or she says he or she has done so as was mentioned in the case (R v. Fearon [1996] 2 Cr. App. R (S) 25 CA). In this case therefore I have taken into account the fact that the convict has pleaded guilty, as one of the factors mitigating his sentence.

The convict was born on the 26th January 2001 as seen from the baptism card which has been presented to the Court accompanied by a page in the register of the baptism. This Court therefore considers the age of the victim who was slightly over 18 years and the fact that he pleaded guilty as mitigating circumstances in this case.

The gravity of this offence is mitigated by the factors stated in mitigation by Counsel for the convict and his own allocutus where he prayed for lenience from this Court.

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 as amended makes it mandatory to take into account the period spent on remand while sentencing a convict. Furthermore, Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. empowers the court to "deduct" the period spent on remand from the sentence considered appropriate, after all factors have been taken into account and this is done mathematically by way of set-off.

The convict having been charged on or about, 2019 and has been in custody since then, I hereby I sentence the convict to a term of imprisonment of 11 years less

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the period spent on remand of 4 years 1 month. The rest of the sentence to be served by the convict from today.

Having been convicted on his own plea of guilty, the convict is advised that he has a right of appeal against the legality and severity of the sentence and order, within a period of fourteen days.

Dated at Mukono this 13th day of February, 2024.

Christine Kaahwa **JUDGE**