Uganda v Mucunguzi Kenneth (Criminal Case 235 of 2021) [2022] UGHC 52 (17 October 2022)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL HIGH COURT CIRCUIT HELD AT KAMWENGE**

#### **HCT-01-CR-SC-0235-2021**

5 **UGANDA……………………………………………. PROSECUTOR**

#### **VERSUS**

**MUCUNGUZI KENNETH…………………………………ACCUSED**

# **BEFORE: HON. JUSTICE VINCENT WAGONA** 10 **JUDGMENT**

The accused stands indicted for the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act. It is alleged that Mucunguzi Kenneth on the 1st day of November 2020 at Kitonzi Village in the kitagwenda District performed a 15 sexual act with Nyekundire Melon a girl aged 8 years.

It was the case of the prosecution that on the morning of 1/11/2020 the victim and her other siblings left their mother at home and escorted and saw off their brother Herbert Twinamatsiko who was travelling back to Kampala. The others returned 20 on a motorcycle while the victim walked home because the motorcycle could not take all of them. She arrived while crying and reported to her mother that while walking on a path on her way back, the accused had gotten hold of her and defiled her from a maize garden near a banana plantation. The case was reported to the LC1 Chairperson and later to the police and the accused was arrested and charged 25 with this offence. In his unsworn statement, the accused denied the offence. He

stated that he spent the whole day on 1/11/2020 at home until 5.00 PM when his mother sent him to the trading center to buy salt from where he was arrested.

The prosecution has the burden of proving the case against the accused beyond 5 reasonable doubt. The burden does not shift to the accused person and the accused is only convicted on the strength of the prosecution case and not on the weaknesses in his defence; **(See: Ssekitoleko v. Uganda [1967] EA 531).**

By his plea of not guilty, the accused put in issue each essential ingredient of the 10 offence with which he is charged and the prosecution has the onus to prove each of those ingredients beyond reasonable doubt. **(See: Miller v. Minister of Pensions [1947] 2 ALL ER 372)**. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. However, it is trite law that any doubts in the case should be resolved in favour of the accused person (**Mancini Vs DPP(1942)AC** 15 **and Abdu Ngobi Vs Uganda; Uganda Supreme Court Criminal Appeal No.**

**10/1991).**

For the accused to be convicted of Aggravated Defilement, the prosecution must prove each of the following essential ingredients beyond reasonable doubt:

- 20 1. That the victim was below 14 years of age. - 2. That a sexual act was performed on the victim. - 3. That it is the accused who performed the sexual act on the victim.

The prosecution called 4 witnesses, namely: PW1 Tumushabe Joyce the mother of 25 the victim; PW2 Nyekundire Melon the victim; PW3 Kiconco Alice a relative; and PW4 No. 44254 Sgt. Orinawe Evans a police officer. The accused gave an unsworn statement. Medical evidence was tendered as Agreed Facts.

## **1. That the victim was below 14 years of age.**

5 The prosecution submitted that they had proved this element beyond reasonable doubt relying on the evidence of PW1 the mother of the victim, PW2 the victim, and the evidence of the medical report (Prosecution Exhibit PE1). The defence contested the proof of age of the victim on the ground that the prosecution failed to produce her birth certificate.

The age of a child can be proved by the production of her birth certificate, the testimony of the parents, or by the court's own observation and common sense assessment of the age of the child. (See for example **Uganda versus Kagoro Godfrey HCCS No. 141 of 2002; R versus Recorder of premisby Ex-parte** 15 **Bursar [1957]2 ALL. ER. 889**).

In this case we have medical evidence and the evidence of the mother of the victim as well as the victim herself.

20 **PW1 TUMUSHABE JOYCE** the biological mother of the victim testified that the victim was now 10 years old. **PW2 NYEKUNDIRE MELON** the victim at the time of her testimony stated that she was 10 years old. The court conducted a *voire dire* prior to receiving her sworn testimony. The medical examination report of the victim in Police Form 3A (Prosecution Exhibit PE1) that was admitted under 25 Agreed Facts stated that the victim was of the apparent age of 8 years at the time of her examination on 3/11/2020. I observed the victim as she testified in court and formed the opinion that the victim was below 14 years when the alleged offence occured.

I am satisfied that the prosecution proved beyond reasonable doubt that the victim 5 was aged below 14 years when the alleged offence was committed.

## **2. That a sexual act was performed on the victim.**

The prosecution relied on the evidence of PW2 the victim supported by the medical report (Prosecution Exhibit PE1), as well as the evidence of PW1 the 10 mother of the victim, to submit that the sexual act against the victim had been proved beyond reasonable doubt. The defence contested the proof of this element saying that PW3 who claims to have witnessed the act, contradicted the evidence of the victim regarding what was seen at the scene, and that PW3 did not see the accused's scurf referred to by the victim or hear the alarm of the victim. It was 15 submitted that the compacted spot of the alleged act of sexual intercourse cited by PW4 who visited the scene, could have been caused by a falling jerk fruit from a jerk fruit tree that existed in the area.

Sexual act means (a) penetration of the vagina, mouth or anus, however slight, of 20 any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person's sexual organ. Sexual organ means a vagina or a penis (See **Section 129 (7) of the Penal Code Act**). To constitute a sexual act, it is not necessary to prove that there was deep penetration. The slightest penetration is sufficient. The Supreme Court in **Wepukhulu Nyuguli Versus Uganda, S. C. C. A**

25 **No.21 of 2001** held that it is the law that however slight the penetration may be it will suffice to sustain a conviction for the offence of defilement.

Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence. In this case, we have the victim's evidence as well as her mother's evidence and medical evidence.

5 **PW1 TUMUSHABE JOYCE** the mother of the victim testified that the victim came crying and reported to her that the accused had defiled her from a maize garden near a banana plantation. That she examined the victim in her private parts and saw blood and sperms. The witness said that the victim was also examined from a Health Center. The witness stated that the victim also led them to the scene 10 of crime which was a maize garden.

**PW2 NYEKUNDIRE MELON** the victim testified on oath and stated that the accused had sexual intercourse with her. That he found her on the way going home. That she was carrying a polythene bag that the accused removed from her 15 and she followed him asking him to return it to her. That he held her and took her to a maize garden near a banana plantation. That he gagged her mouth using a scurf. Then he removed her knickers, he removed his trousers and slept on her. The victim said that the accused got out his penis and inserted it in her "**kyoyo**". With the aid of a male and female anatomical doll the witness demonstrated and 20 illustrated that the accused held his penis and inserted it in her vagina. She said she felt pain in her private parts during the act. The witness testified that in the course of the incident, there came PW3 Kiconco Alice who saw them and at that point, the accused went off her and ran away; then she also stood up and left. That on the way, she again met the accused who suggested that they go to another maize 25 garden, but she refused and went home and reported the incident to her mother. In cross examination the witness told court that she saw the penis of the accused and also saw his pubic hair.

**PW3 KICONCO ALICE** a young relative testified that prior to the incident she had seen the victim and the accused going past the home of the witness. It was the evidence of the witness that later, she was told by her brother Timothy that the accused and the victim were talking from the maize garden. That she ran to go and 5 see what they were doing. She said she was prompted to go and check because they had been told at school that there were men who spoil young girls. That near the scene, from a distance of about 4 meters away, she saw the accused on top of the victim who was down; that when the accused saw her, he got up and first chased her away and then he went away. In cross examination the witness stated 10 that she saw the accused on top of the victim and his trousers was half-way.

**PW4 NO. 44254 SGT. ORINAWE EVANS** a police officer testified that on 3/11/2020 she was led to the scene by the victim who was in the company of her mother; hat at the scene, she observed that the soil was compacted as if an object 15 had been placed there. That there was a jerk-fruit tree nearby.

I was satisfied that the evidence available proves beyond reasonable doubt that a sexual act was performed on the victim.

## 20 **3. That it is the accused who performed the sexual act on the victim.**

The prosecution relied on the evidence of the victim contending that the evidence was corroborated by the other witnesses, implicating the accused. On the other hand the defence contended that the victim was motivated by a grudge because she 25 said that the accused used to abuse her. It was suggested that the victim's claims

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were incredible as she did not make an alarm or report at the homesteads that existed on the way and that the prosecution evidence had contradictions.

This ingredient is satisfied by adducing evidence, direct or circumstantial, placing 5 the accused at the scene of crime as the perpetrator of the offence.

**PW1 TUMUSHABE JOYCE** the mother of the victim testified that the victim came home crying and reported to her that it was the accused that had sexual intercourse with her. **PW2 NYEKUNDIRE MELON** the victim testified that it 10 was the accused that had sexual intercourse with her. **PW3 KICONCO ALICE** testified that it was the accused that she found on top of the victim while the victim was down in the maize garden and his trouser was half-way. From their evidence, all the witnesses knew the accused before because he was a resident on the village. The victim knew the accused because she used to see him in a bar on the village 15 and that he would drink, get drunk and talk a lot. The victim saw him on 3 occasions on that day. She first saw him before the incident when she had gone to pick avocado. She saw him again when he followed her and defiled her. When he left after committing the offence, the victim again met him when he suggested that they go to another maize garden and she refused and proceeded home. PW3 had 20 seen the accused walking with the victim immediately before the incident before she later followed and found the accused defiling the victim. She went close to the scene and observed them from a distance of about 4 meters away for about 3 minutes. The offence took place during broad day light at about 1.00 PM.

#### 25 **The defence evidence in this case**.

In his unsworn statement, the accused denied the offence. He stated that he spent the whole day on 1/11/2020 at home until 5.00 PM when his mother sent him to the trading center to buy salt where he was arrested.

- 5 An accused who denies the indictment and claims it is based on a fabricated accusation does not have a duty to prove it, but it is the duty of the prosecution to disprove it by adducing evidence to discredit such a claim. The prosecution must disprove it by adducing evidence proving that it is indeed the accused and no one else that defiled the victim. - 10

# **Corroboration:**

This being an offence of a sexual nature, as I warned the assesors, I now warn myself that there is a rule of practice of courts not to convict an accused on the uncorroborated evidence of the victim of a sexual offence. Corroboration is also 15 required as a matter of practice when relying on the testimony of a single identifying witness. **— See Chila and another V. Republic 1967 EA 722.** This case lays down the rule of practice that in sexual offences, the judge should warn assessors and himself of the danger of acting on the uncorroborated testimony of a single identifying winess.

#### 20

The rule of practice has laid down by the EACA with regard to all sexual cases has been expressed thus:

*"The judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the compliant, but having done so, he* 25 *may convict in the absence of corroboration if he is satisfied that her evidence is truthful."* **(Chila v. R (1967) EA 722***.* The Supreme Court of Uganda considered and settled this issue in **Remigious Kiwanuka Vs Uganda Criminal Appeal No. 41 of 1993***.* It *was* held tha*t it is settled law in sexual offences that though corroboration of the prosecution evidence is not essential in law, it is, in practice looked for, and it is the*

5 *established practice to warn the Assessors against th*e *danger of acting upon un corroborated testimony.*

I can proceed to rely on the evidence of a single identifying witness without corroboration, if I am satisfied that the witness was truthful and there is no 10 possibility of error in the identification of the perpetrator. I can also proceed to rely on the evidence of the victim in a sexual offence without corroboration if I am satisfied the witness was truthful. **(Chila v. R [1967] EA 722; Abdala bin Wendo & Anor v. R (1953) 20 EACA 166).**

15 Corroboration means additional independent evidence connecting the accused to the crime. There is need to find other independent evidence to prove not only that the sexual act occurred but also that it was committed by the accused. Corroboration may be in the form of direct or circumstantial evidence or expert evidence (see **R. v. Baskerville [1916] 2 K. B 658, R v. Manilal Ishwerlal** 20 **Purohit (1942) 9 EACA 58 (p.61**). **PW3 KICONCO ALICE** a young relative testified that prior to the incident she had seen the victim and the accused going past the home of the witness. It was the evidence of the witness that later, she was told by her brother Timothy that the accused and the victim were talking from the maize garden. That she ran to go and see what they were doing. She said she was 25 prompted to go and check because they had been told at school that there were men who spoil young girls. That near the scene, from a distance of about 4 meters away, she saw the accused on top of the victim who was down; that when the

accused saw her, he got up and first chased her away and then he went away. In cross examination the witness stated that she saw the accused on top of the victim and his trousers was half-way. I find that this evidence corroborates other evidence that a sexual act was committed on the victim and also corroborates the evidence 5 of the victim that it was the accused that committed the sexual act on the victim.

In sexual offences the distressed condition of the complainant is capable of amounting to corroboration of the complainant's evidence. The weight to be attached to such evidence as corroboration varies according to the circumstances of 10 the case and the evidence. **(See: R. V. James Henry Knight (1966) SO Crim. Appeal R. 122; Chila V. Republic [1967] E. A 722.).** Section 156 of the Evidence Act provides that in order to corroborate the testimony of a witness, any former statement made by such a witness relating to the same fact, at or about the time when the fact took place, or before authority legally competent to investigate the 15 fact, may be proved. **See Katende Mohammed Vs Uganda, SCCA No. 32 of 2001 which referred to Ndaula. James Vs Uganda, S. C. C. A. No. 22 of 2000 (unreported).** In this case, **PW1 TUMUSHABE JOYCE** the mother of the victim testified that the victim came home crying and reported to her that the accused had defiled her from a maize garden near a banana plantation. This 20 evidence shows that the victim made an immediate report implicating the accused and she was in a distressed condition, which tends to support her evidence that she had been defiled by the accused.

I am satisfied that the prosecution evidence was truthful, consistent and credible and it 25 is well corroborated in proving the age, the sexual act committed against the victim, and in implicating the accused.

I find that the prosecution has proved the case against the accused beyond reasonable doubt.

In agreement with the Lady and Gentleman Assessors, I find the accused person guilty 5 as indicted and convict him accordingly.

**th**day of **October 2022.**

**Dated** at Fortportal this **17**

**.................................................**

10 **Vincent Wagona Judge**

## **SENTENCE AND REASONS FOR SENTENCE**

Under the Penal Code Act Section 129 (3), the maximum punishment for the offence of aggravated defilement is a death sentence. Section 129B of the Penal 5 Code Act provides for payment of compensation to victims of defilement and states as follows: (1) Where a person is convicted of defilement or aggravated defilement under section 129, the court may, in addition to any sentence imposed on the offender, order that the victim of the offence be paid compensation by the offender for any physical, sexual and psychological harm caused to the victim by 10 the offence; (2) The amount of compensation shall be determined by the court and the court shall take into account the extent of harm suffered by the victim of the offence, the degree of force used by the offender and medical and other expenses incurred by the victim as a result of the offence.

15 **Under Guideline 33 of the Sentencing Guidelines:** (1) The court shall be guided by the sentencing range specified in Part IV of the Third Schedule in determining the appropriate sentence for defilement. The sentencing starting point for aggravated defilement is 35 years' imprisonment and the sentencing range is from 30 years' imprisonment to death sentence; (2) The court shall, using the factors in 20 paragraphs 34, 35 and 36, determine the sentence in accordance with the sentencing range.

**Under Guideline 34 of the Sentencing Guidelines:** The court shall take into account the following factors in considering a sentence for defilement— (a) the 25 age of the victim and the offender; (b) the nature of the relationship of the victim and the offender; (c) the violence, trauma, brutality and fear instilled upon the victim; (d) the remorsefulness of the offender; (e) operation of other restorative processes; or (f) the HIV/AIDS status of the offender.

**Under Guideline 35 of the Sentencing Guidelines:** In determining a sentence for 5 defilement, the court shall be guided by the following aggravating factors— (a) the degree of injury or harm; (b) whether there was repeated injury or harm to the victim; (c) whether there was a deliberate intent to infect the victim with HIV/AIDS; (d) whether the victim was of tender age; (e) the offender's knowledge of his HIV/AIDS status; (f) knowledge whether the victim is mentally challenged;

10 (g) the degree of pre-meditation; (h) threats or use of force or violence against the victim; (i) knowledge of the tender age of the victim; (j) use or letting of premises for immoral or criminal activities; (k) whether the offence was motivated by, or demonstrating hostility based on the victim's status of being mentally challenged; or (l) any other factor as the court may consider relevant.

**Under Guideline 36 of the Sentencing Guidelines:** In considering a sentence for defilement, the court shall take into account the following mitigating factors— (a) lack of pre-meditation; (b) whether the mental disorder or disability of the offender was linked to the commission of the offence; (c) remorsefulness of the offender;

- 20 (d) whether the offender is a first offender with no previous conviction or no relevant or recent conviction; (e) the offender's plea of guilty; (f) the difference in age of the victim and offender; or (g) any other factor as the court may consider relevant. - 25 The sentencing guidelines have to be applied bearing in mind past precedents of courts in decisions where the facts have a resemblance to the case under trial (see **Ninsiima v. Uganda Crim. C. A Criminal Appeal No. 180 of 2010**). A

review of past precedents tends to show that the Court of Appeal has time and again reduced sentences that have come close to the sentencing starting point suggested by the sentencing guidelines, as being harsh and excessive, and upheld those that were lower than the starting point.

In **Kato Sula v Uganda, C. A. Crim. Appeal No 30 of 1999**, the Court of Appeal upheld a sentence of **8 years'** imprisonment for a teacher who defiled a primary two school girl. In **Tujunirwe v Uganda, C. A. Crim. Appeal No 26 of 2006,** the Court of Appeal upheld a sentence of **16 years'** imprisonment for a **teacher** who 10 defiled a primary three school girl. In **Ntambala Fred v Uganda, Criminal Appeal No. 0177/2009** the appellant had defiled his biological daughter and had been defiling the said girl aged 14 years for 2 years. He was convicted and sentenced to **14 years** imprisonment. The Court of Appeal upheld the sentence of 14 years imprisonment. In **KatendeAhamad vs Uganda SC Criminal Appeal**

- 15 **No. 06 of 2004,** the supreme court maintained a sentence of **10 years** for the appellant charged with defilement of his child aged 9, more than once. They faulted the lower courts for not taking into account the 2 and a half years the appellant was on remand which period was then considered and sentenced the appellant to 10 years. In **ZiryawulawoWalulya Vs Uganda, Criminal Appeal No** - 20 **137 0f 2008** the court of appeal upheld a sentence of **12 years** for the offence of aggravated defilement where the appellant defiled a child aged 9 years. The accused had been on remand for 3 years and 11 months which period was taken into consideration. In **Kobusheshe vs. Uganda, Court of Appeal Criminal Appeal Number 110 of 2008**the appellant was convicted for defilement of a girl 25 aged 5 years and he was sentenced to **17 years.** The court of appeal maintained the said sentence.

Each case must be treated on its own merits. In this case the prosecution cited the following aggravating factors which I have considered: this is a serious offence whose maximum punishment is death sentence; the victim was only 8 years old; there was a big age difference as the accused was 26 year old; the convict 5 introduced the victim to sexual intercourse at a young age; offences of this nature are rampant; the prosecution proposed a sentence of 25 yaers imprisonment plus an order for monetary compensation. The defence cited the following mitigating factors: the convict is a first offender with no previous record of conviction; he is remorseful; he is of the youthful age of 28 years and he can reform; he is the sole 10 breadwinner and single parent for his family of 4 children that need his care; that the order for monetary compensation should not be considered because the convict did not infect the victim and there were no serious injuries; the convict has been in custody since **1/11/2020**. Additionally, I have observed from the medical report that the victim did not sustain any injuries on her body, was of normal mental 15 status and not dipressed. In allocutus the convict expressed what appeared to be his genuine remourse and asked for a linient sentence. He said he was very sory and would never repeat the offence. I have considered all these aggravating factors, mitigating factors and the allocutus of the convict.

- 20 Under Article 23 (8) of the Constitution and Regulation 15 (2) of The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*, the court should take into account the period spent on remand from when sentencing the convict. - 25 I therefore sentence the convict as follows: - 1. In the circumstances of this case, I consider a sentence of 14 years' imprisonment to be appropriate.

2. After taking into account the period of 1 year, 10 months and 17 days already spent in custody, the convict will now serve a sentence of imprisonment of 12 years, 1 months and 13 days starting today.

The convict is advised that he has a right of appeal against both the conviction and 5 sentence with 14 days from today.

**Dated at Fort-portal High Court Circuit sitting at Kamwenge this 18th Day of October 2022.**

10 **Vincent Wagona Judge**