Uganda v Lukwebe (Criminal Session 346 of 2020) [2024] UGHC 280 (11 April 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO CRIMINAL SESSION NUMBER 0346 OF 2020 UGANDA::::::::::::::::::::::::::::::::::: **VERSUS**

#### LUKWEBE EDIRISA:::::::::::::::::::::::::::::::::::

#### SENTENCE AND REASONS FOR SENTENCE

The Accused, Lukwebe Edrisa was convicted of the offence of Aggravated Defilement contrary to section $129(3)(4)(a)$ of the Penal Code Act, Cap 120 as amended.

On the 8<sup>th</sup> April 2024 Accused appeared for Plea taking and when the court read the indictment to him he stated that he knew the offence. The summary of the case was read to him by the Prosecution and he stated that there was no lie in the facts. The Court entered a plea of guilty against him and he was convicted as indicted.

The Prosecution in aggravation submitted that although there was no past criminal record, the victim was aged 7 years and was in primary one at the time the offence was committed and the convict being 26years of age was old enough to be her parent. That the convict was a neighbor as they lived in the same village and he was well known to the victim. Lastly that the victim had suffered trauma as a result of the defilement and it

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may be difficult for her to return to her normal self. The prosecution prayed for a deterrent sentence.

Prosecution submitted and recommended a sentence of 15 years.

The defence in mitigation submitted that the convict was remorseful and this was reflected even at the time of arrest as he did not deny committing the offence; he had no past criminal record and was a first time offender. Additionally that at the time of commission of the offence he was 26years old and therefore capable of reforming. Lastly that he was a family man with a wife and child who was only 9 years old.

In regard to the trauma allegedly suffered by the victim defence was of the view that trauma had not been proved since there was no medical report indicating trauma. He prayed for 13 years after deduction of the period spent on remand.

I have put all the aggravating and mitigating factors in this case as submitted on by the both the prosecution and defence counsel into consideration.

### **Sentence:**

It is vital to consider the circumstances surrounding the case while imposing a sentence for example, the nature of the offence, whether it was fully tried or not, the aggravating and mitigating factors as put forth by the prosecution and the defence and the need for consistency in sentences which have already been imposed and maintained by the Appellant courts.

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In the instant case, I make reference to the following cases,

In Byera Denis Vs Uganda, Court of Appeal Criminal **Appeal No. 99 of 2012**, the Court of Appeal substituted a sentence of 30 years imprisonment with one of 20 years imprisonment it considered appropriate in a case of aggravated defilement. In that case, the victim was aged 3 years. The accused had been on remand for 1 year and 8 months. In Tiboruhanga Emmanuel vs. Uganda, Court of Appeal **Criminal Appeal No. 0655 of 2014, the Court of Appeal stated** that the sentences approved by this Court in previous aggravated defilement cases, without additional aggravating factors, range between 11 years to 15 years. The Court considered the fact that the appellant was HIV positive as an additional aggravating factor and that 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 after deducting 3 years spent on remand, the convict was to serve 22 years in totality.

In the circumstances of this case, the victim was of tender age being only 7 years at time of commission of the offence; there was repeated defilement of the victim which was premeditated as the convict used to give the victim Shs. 200/ $=$ or Shs. 300/ $=$ after defiling her. The medical report PEx 1 shows that the victim needs to attend clinic for counselling and treatment therefore trauma was established.

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On the other hand, I take note of the fact that the convict is a first time offender and he did not waste the time of the court.

I consider a sentence of 16 years imprisonment to be appropriate. After taking into account the period of 3 years 10 months already spent in custody, the convict will now serve a sentence of imprisonment of 12 years 2 months starting today.

The convict is advised that he has a right of Appeal against the sentence within 14 days from today.

Dated this 11<sup>th</sup> day of April, 2024 at Mukono.

**Christine Kaahwa**

**JUDGE**

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