Uganda v Odong Moses (Criminal Case No. 267 of 2019) [2020] UGHC 81 (10 July 2020)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT GULU CRIMINAL CASE No. 0267 OF 2019**

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

#### **VERSUS**

| ODONG MOSES | ….………….……….….…….….….……….….…………… ACCUSED | | |-------------|-----------------------------------------|--| |-------------|-----------------------------------------|--|

#### 10 **Before: Hon Justice Stephen Mubiru.**

#### **PROCEEDINGS**

10th July, 2020 12.32 pm

### 15 Attendance

Mr. Kilama Stephen, Court Clerk.

Mr. Omia Patrick, Resident State Attorney for the Prosecution.

Mr. Walter Okidi Ladwar, Counsel for the accused.

The accused is present in court

**Accused**: I speak Acholi.

**State Attorney**: we have negotiated a plea bargain and accordingly executed a plea agreement which I pray to present to court.

**Counsel for the accused**: That is correct.

- 25 **Accused**: I signed the agreement willingly at pages 5. My constitutional rights were explained to me and I willingly waived them fully cognisant of the consequences of signing the plea agreement. - **Court**: The agreement is received and hereby forms part of the court record.

………………………………….. 30 Stephen Mubiru Judge 10th July, 2020.

**Court**: The Indictment is read and explained to the accused in the Acholi language.

**Details**; Aggravated Defilement C/s 129 (3) and (4) (a) of *The Penal Code Act*. It is alleged that the accused on the 28 th day of July, 2018 at Langol village, in Nwoya District, performed an unlawful sexual act with Lamara Miriam, a girl aged 7 years.

**Accused**: I have understood the indictment. It is true. **Court**: A plea of guilty is entered.

………………………………….. Stephen Mubiru 10 Judge 10th July, 2020.

**State Attorney**: On the fateful day the accused was cohabiting with an aunt to the victim and when she delivered she asked the victim to stay with her and help her 15 with hose chores. In the evening the victim was in the kitchen when the accused followed her there and defiled her. A few days later she confided in an older friend what the accused had done to her. That older friend reported to the aunt of the victim. The case was reported to the police and the victim was examined. The medical report shows that she was about 8 20 years old mentally sound with a torn hymen. It was a healing tear at 6.0 o'clock. The accused too was examined and found to be about 28 hears mentally normal and HIV negative.

**State Attorney**: I pray to tender in the medical forms.

**Defence Counsel**: I have no objection.

25 **Court**: They are received as part of the facts and are marked P. Ex.1 and P. Ex.2 respectively.

………………………………….. Stephen Mubiru Judge 10th 30 July, 2020.

| Accused: | I have understood the facts. They are correct. | | | |----------|--------------------------------------------------------------------------|--|--| | Court: | The accused is convicted on his own plea of guilty<br>for the offence of | | | | | Aggravated Defilement<br>C/s 129 (3) and (4) (a) of The Penal Code Act. | | |

………………………………….. Stephen Mubiru Judge 10th July, 2020.

**State Attorney**: the aggravating factors are that the accused took advantage of the victim's age, attacked her in her home. She sustained physical injury.

**Counsel for the accused**: the mitigation is that he readily pleaded guilty, he is 28 years old and remorseful, he is a first offender and capable of reform.

10 **Accused**: I have nothing to add.

#### **SENTENCE AND REASONS FOR THE SENTENCE**

- 15 According to section 129 (3), the maximum penalty for the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of *The Penal Code Act,* is death. However, this punishment is by sentencing convention reserved for the most extreme circumstances of perpetration of the offence such as where it has lethal or other extremely grave consequences. Examples of such consequences are provided by Regulation 22 of The *Constitution (Sentencing Guidelines for Courts of Judicature)* - 20 *(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, and so on. I construe these factors as ones which imply that the circumstances in which the offence was committed should be life threatening, in the sense that death is a very likely or 25 probable consequence of the act. I considered the circumstances in which the offence was committed which were not life threatening, in the sense that death was not a very likely consequence of the convict's actions, for which reason the death sentence was discounted, giving way to a plea bargain. - 30 Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. None of the aggravating factors prescribed by Regulation 22 of the Sentencing Guidelines, which would justify the imposition of a sentence of life imprisonment, is applicable to this case. A sentence of life imprisonment may as well be justified by extreme

gravity or brutality of the crime committed, or where the prospects of the offender reforming are negligible, or where the court assesses the risk posed by the offender and decides that he or she will probably re-offend and be a danger to the public for some unforeseeable time, hence the offender poses a continued threat to society such that incapacitation is necessary (see *R v.*

5 *Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410*). The convict in this case does not fit that description and therefore I do not consider the sentence of life imprisonment to be appropriate in this case. Although the circumstances of the case neither justify the death penalty nor a sentence of life imprisonment, they are sufficiently grave to warrant a deterrent custodial sentence.

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*, 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 15 starting point should be 35 years' imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the relevant mitigating factors. In doing so, the court must take into account current sentencing practices for purposes of comparability and uniformity in sentencing. I have therefore reviewed and taken into account the current sentencing practices in relation to cases of this nature as well. I have accordingly adopted a starting point of 20 a range of 30 – 35 years' imprisonment.

From this, the convict is entitled to a discount for having pleaded guilty. The practice of taking guilty pleas into consideration is a long standing convention which now has a near statutory footing by virtue of regulation 21 (k) of *The Constitution (Sentencing Guidelines for Courts of*

25 *Judicature) (Practice) Directions, 2013*. As a general principle (rather than a matter of law though) an offender who pleads guilty may expect some credit in the form of a discount in sentence. The requirement in the guidelines for considering a plea of guilty as a mitigating factor is a mere guide and does not confer a statutory right to a discount which, for all intents and purposes, remains a matter for the court's discretion. However, where a judge takes a plea of 30 guilty into account, it is important that he or she says he or she has done so (see *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 readily pleaded guilty as one of the factors mitigating his sentence.

The sentencing guidelines leave discretion to the Judge to determine the degree to which a 5 sentence will be discounted by a plea of guilty. As a general, though not inflexible, rule, a reduction of one third has been held to be an appropriate discount (see: *R v. Buffrey (1993) 14 Cr App R (S) 511*). Similarly in *R v. Buffrey 14 Cr. App. R (S) 511*). The Court of Appeal in England indicated that while there was no absolute rule as to what the discount should be, as general guidance the Court believed that something of the order of one-third would be an 10 appropriate discount. In light of the convict's plea of guilty, and persuaded by the English practice, because the convict before me pleaded guilty, I propose at this point to reduce the sentence by one third from the starting point of a range of 30 – 35 years to a range of 20 – 23 years' imprisonment, before mitigation.

15 Having considered the sentencing guidelines and the current sentencing practice in relation to offences of this nature, the aggravating and mitigating factors outlined above, I hereby accept the submitted plea agreement entered into by the accused, his counsel, and the State Attorney and in accordance thereto, find the proposed sentence of eighteen (18) years' imprisonment as befitting the circumstances of the case and the antecedents of the convict.

In accordance with Article 23 (9) of the Constitution and Regulation 15 (2) of The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I note that the convict was charged on 23 rd August, 25 2018 and been in custody since then. I hereby take into account and set off one (1) year eleven (11) months as the period the convict has already spent on remand. I therefore sentence the convict to a term of imprisonment of seventeen (16) years and one (1) month to be served starting today.

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

| 5 | this 10th<br>Dated at Gulu<br>day of July, 2020. | …………………………………<br>Stephen Mubiru,<br>Judge.<br>10th July, 2020. | |----|--------------------------------------------------|----------------------------------------------------------------| | 10 | | | | 15 | | | | 20 | | | | 25 | | | | 30 | | | | 35 | | | | 40 | | |

**Warrant of Commitment on a U. C. FORM 90 Sentence of Imprisonment Section 299(1) Criminal Procedure Code Act**


## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN**

10 **TO: AT GULU**

**The Officer in Charge,**

**Government Prison, Gulu.**

## **WARRANT OF COMMITMENT**

*WHEREAS* on the **10th** day of **July** 2020, **ODONG MOSES** the 15 Prisoner in Criminal Session Case No.**0267** of the Calendar Year for **2019** was convicted before me: Hon. Justice **MUBIRU STEPHEN, a Judge of the High Court of Uganda,** of the offence of **AGGRAVATED DEFILEMENT C/s 129 (3) and (4) (a)** of The Penal Code Act and was sentenced to **SIXTEEN (16) YEARS AND ONE (1)**

20 **MONTH'S IMPRISONMENT.**

**THIS IS TO AUTHORISE AND REQUIRE YOU**, the Superintendent to receive the said **ODONG MOSES** into your custody in the said prison together with this **Warrant** and there carry the afore said sentence into 25 execution according to Law.

**GIVEN** under my Hand and the Seal of the court this **10th** day of **July,** 2020**.**

………………………………....… 30 **JUDGE**.