Uganda v Okethwengu (Criminal Session Case 76 of 2023) [2023] UGHC 492 (18 December 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT NEBBI

CRIMINAL SESSION CASE NO. HCT-08-CR-SC-0076 OF 2023

$UGANDA \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$

### **VERSUS**

OKETHWENGU JOHN SMITH....................................

20 **BEFORE:** HON. MR. JUSTICE GEORGE OKELLO

#### **JUDGMENT**

#### Introduction

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The accused person stands indicted with aggravated defilement, contrary to section 129 (3) (4) (a) and (c) of the Penal Code Act Cap 120. It is alleged that on 23rd July, 2022 at Pavungu Jukaal Village in Pakwach District the accused had unlawful sexual intercourse with A. S, his daughter, a girl aged 10 years. The accused pleaded not guilty thus putting in issue each and every allegation against him.

## Legal representation

35 At the hearing the accused was represented by Mr. Pirwoth Michael on State Brief. The State was represented by Mr. Naguyo Emmanuel and Mr. Acwica Samuel, State Attorneys from the Office of the Director of Public

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$\mathsf{S}$ Prosecution. Parties submitted orally. I carefully listened to their arguments and appreciate their industry.

#### The proceedings

The parties agreed on PF 3A which is medical examination of the victim of sexual assault, and PF 24A on which the accused was examined as a $10$ suspect of sexual offence. The documents were admitted as PEX1 and PEX 2, respectively. Two assessors were appointed and sworn, all parties having agreed to their appointment. The State opened its case. Two witnesses testified, that is, the grandmother of the alleged victim, and the alleged victim herself. The necessary voire dire was conducted in respect 15 of the victim. At the close of the prosecution case Court found that a prima facie case was disclosed and put the accused to his defence. The accused person choose to give sworn evidence. He did not call other witnesses in his defence. After their final oral address Court summed up the law and the evidence to the assessors who returned a joint opinion.

### Ingredients of the offence indicted.

The offence being aggravated defilement, under section 129 $(3)$ $(4)$ $(a)$ and (c) of the Penal Code Act Cap 120 (hereafter, PCA), the prosecution has to prove the following elements;

$i)$ The girl/victim was below the age of 14 at the date of the alleged sexual assault

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- $5$ - ii) A sexual act/intercourse was performed on the victim - iii) It is the accused who performed the sexual act/ sexual intercourse with the victim - $iv)$ The accused was a parent or guardian or was a person in authority over the victim at the time. - $10$

## The burden and standard of proof

Given that the accused person pleaded not guilty and given that he enjoys the constitutional right of presumption of innocence under article 28 (3) (a) of Constitution of Uganda, 1995, the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. Thus apart from insanity and a few statutory exceptions which are not applicable here, the burden of proof never shifts to the Defence. See: Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.

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The Prosecution must, therefore, prove each of the ingredients/elements of the offence against the accused person beyond reasonable doubt. Proof beyond reasonable doubt, however, does not mean, proof beyond the shadow of doubt. The degree of proof need not reach certainty. This is because court could end up considering fanciful possibilities which could deflect the course of justice. What, therefore, is required, is strong evidence against the accused person that leaves only a remote possibility in his

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- favour. If court finds on the evidence that, what a person is accused of, is $\mathsf{S}$ possible, and not in the least probable, then the standard of proof is said to have been met. Nothing short of that would suffice. See: Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374, Lord Denning. - $10$ Therefore, the accused person does not assume any burden of proof, a position rooted in section 101 (2) and section 103 of the Evidence Act Cap 6. Where there is any doubt in the prosecution case, the accused takes the benefit of the doubt. Any defence, even if not raised by the accused, if there is evidence of it, must be availed to the accused person. See: **Abdu** - Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum 15 Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) HCB 216. An accused can, therefore, only be convicted on the strength of the prosecution case, and not because of the weakness of the defence. See: 20 Ssekitoleko Vs. Uganda, [1967] EA 531. Therefore, even if an accused person leads no evidence, and keeps quiet, the court must still, at the end of the case, ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? In a criminal case, all matters must be strictly proved. The State cannot, for instance, - Vs. R [1961] 1 EA 38 (CAN).

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solely rely on concessions made by the accused person. See: **FW Crowie**

$5$ All items of evidence on record must be considered and evaluated by court. That is, both the prosecution evidence and the defence evidence. At the end of the day, the court has to evaluate all items of evidence on record. That is, both the prosecution evidence and the defence, if any. In **Abdu** Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991 the Supreme Court $10$ opined thus:

"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised $a$ doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged."

### Evaluation of the evidence

- 25 Regarding age of the child, it can be proved in any of the followings ways; - $i)$ Birth certificate, immunization card, school records, if any - ii) Testimony of the parents of the child

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- iii) Child's testimony regarding her/his age - $iv)$ Medical evidence e.g. dentition

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$v)$ Observation of the child and common sense assessment by court.

### See: Uganda Vs. Kagoro Godfrey, H. C Crim. Session Case No. 141 of $10$ 2002; Uganda Vs. Fulawak, Crim. Session case No. 85 of 2018.

Furthermore, section 88 (2) and (3) of the Children Act Cap 59 offers a useful guide on how age of a child can be determined. Although the section is concerned with determination of age of a child for the purposes of 15 criminal responsibility I am of the view that the section offers a useful guide where a child is also a victim of an alleged crime. Thus section 88 (2) and (3) of the Children Act provides that, court can determine the age of a child by giving full assessment of all available information, giving due consideration to official documentation including birth certificate, school $20$ records, health records, statement certifying the age from the parent or child, or medical evidence. In my view one or more of the methods outlined above, could, depending on the circumstances of each case, help in proving age of a child.

$25$ In the instant matter, the child A. S (PW2) testified on 7th December, 2023, that she is 11 years old, meaning as at $23^{rd}$ July, 2022 when the offence is alleged to have been committed, she was well under 14 years old. This

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$\mathsf{S}$ court also observed the victim in chambers during the hearing of her testimony. Court conducted the voir dire because the girl was of tender years. Although PW1 (Akidi Fedelia) a 70 year old grandmother of the victim said she could not recall the year the child was born, she said the child completed primary three this year 2023 and has been promoted to $10$ primary four. PF 3A (PEX 1) shows the girl's teeth were counted, and her age was found to be 10 as at $27th$ July, 2022. I find the medical proof of age corroborative of PW2's testimony as to her age. This ingredient was not contested by the Defence and thus, in agreement with the assessors I find that the prosecution has proved beyond reasonable doubt that the alleged victim of sexual assault was below the age of 14 as at 23rd July, 2022. 15

Regarding the allegation of sexual act allegedly performed on the girl, sexual act is widely defined in section 129 (7) of the Penal Code Act. For the purposes of the present indictment, it is alleged in the summary of the 20 case that the accused had sexual intercourse with the girl. In the circumstances, other than the alleged sexual intercourse, I would find that the other aspects of the definition of a sexual act in the Penal Code Act does not apply. Thus the alleged act of sexual intercourse comes within the purview section 129 (7) of the Penal Code Act. A sexual act, therefore, 25 include, penetration of the vagina of any person, however slight, by a penis. I should perhaps observe that before the PCA was amended by Act No. 8 of 2007 to introduce the offence of aggravated defilement thus

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- offering more protection to children, the view that any slightest penetration $\mathsf{S}$ of the vagina would do, for the purposes of satisfying proof of penetration, was a principle of law developed by the courts. The principle was not rooted in statute prior to the amendment of the Act in 2007 but had a force of law because it was judge made law. Thus in **Wepukhulu Nyuguli Vs. Uganda,** - $10$ SC. Crim. Appeal No. 21 of 2001, the Supreme court of Uganda underscored the principle of law that penetration however slight, suffices to prove sexual intercourse. See also: Adamu Mubiru Vs. Uganda; C. A Crim. Appeal No. 47 of 1997. Thus the jurisprudence on the matter appears to have informed the legislative approach in the year 2007 15 especially regarding the aspect of slightness of penetration. The question I proceed to ask thus is how then penetration is proved. In my view, penetration can be proved either by the victim's evidence, medical evidence, or any other cogent evidence. See: Remigious Kiwanuka Vs. Uganda, SC Crim. Appeal No. 41 of 1995; Uganda Vs. Sunday Herbert, 20 HCT-01-CR-SC-162/2021 (Justice Vincent Wagona). However, it is not a hard and fast rule that medical evidence be produced to prove a sexual

act. See: Hussein Bassita Vs. Uganda, SC Crim. Appeal No. 35 of 1995. But once medical evidence is adduced by the prosecution, court will consider it. Court may thus decide to consider medical evidence alongside 25 other cogent evidence adduced in court.

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$\mathsf{S}$ In the instant matter, A. S (PW2) testified that the accused had sexual intercourse with her at night in the year she could not recall. She reported to her aunt, a one Mercy. The sexual assault happened in the house of another Aunt (a sister to the accused), a one Atimango Harriet. Atimango was at the time working (and living) in Paraa so her house remained $10$ available to the accused person to occupy. According to A. S, on the fateful night her clothes were removed by the accused who inserted "something" into the vagina of A. S who felt pain. It was dark so A. S could not see what was inserted in her vagina. She felt something like urine in her vagina. Prior to the incident A. S used to sleep in a grass thatched house with her $15$ Aunties, Pimer and Mercy but the accused went and picked her and took her to the house where she was defiled from. Atimango's house was roofed with iron sheet. It was the first time A. S was being taken to sleep in that house by the accused. She and the accused shared a bed. A. S said she was examined at Pakwach Health Centre IV. According to PEX 1 (PF 3A), 20 A. S was examined on 27th July, 2022 and her genitals was found to be inflamed. The vulva was inflamed with partial rapture of the hymen and mild bruising. A swelling with bruises in the anus was also observed. The probable cause was 'penetrating object'. The medical report indicates the history and circumstances of the incident as told to the medical 25 practitioner. It is indicated that Fidela Akidi (PW1) a grandmother of A. S narrated on 27th July, 2022 to the medical practitioner at Pakwach Health Centre IV that A. S was sexually assaulted by her father. However, this

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court notes with consternation that when PW1 testified in court on 7th $5$ December, 2023 she feigned ignorance of any sexual assault. She testified that the accused was arraigned before court, allegedly because on 23rd July, 2022 he had beaten his daughter but was also drunk. The accused allegedly beat A. S when he was in town (Pakwach Town). PW1 claimed no $10$ one reported to her that the accused has ever had sexual intercourse with A. S, not even the victim herself. PW1 then asked this court to forgive the accused for beating A. S. In his defence the accused admitted spending a night with A. S, his daughter, starting from the night of 19th till 23rd July, 2022. He stated that A. S used to sleep with the accused's sisters in a grassthatched house but he decided to remove her because the sisters of the 15 accused were always going away looking for men (he suggests they were prostitutes) and so he feared the sisters could end up spoiling A. S.

On the evidence, I am satisfied beyond reasonable doubt that the prosecution has proved that sexual intercourse was performed on A. S on 20 23rd July, 2022. The medical evidence corroborates the testimony of the victim. The Defence concedes this in their submission. I am thus in agreement with the assessors that sexual intercourse has been proved beyond reasonable doubt.

The next question is, who performed the sexual intercourse with the victim? The victim testified that it is her father, the accused herein who

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$\overline{5}$ had sexual intercourse with her. Although A. S could not recall the exact date the sexual intercourse happened, she said it was at night and it happened in the house of Auntie Atimango Harriet. She narrated how the accused removed her from the house where she used to sleep with her Aunties. She said the sex happened at night as she was the only one $10$ sleeping with the accused on a bed. Since it was dark she felt the accused inserting something into her vagina and she felt water in her vagina. This court notes that in his defence the accused has not denied sharing a bed with his daughter on the night which from the accused' defence, was 23rd July, 2022. The accused stated that he started sharing the bed with A. S. on the night of 19th July, 2022. He then further shared bed on 20th, 21st, $15$ 22nd and 23rd, July, 2022, respectively. Although A. S told court that the night of the ordeal was the only first time she shared a bed with the accused, the accused clarified he actually spent four nights, as listed above. Court notes that PW1 (Fidelia Akidi) in her narration to the 20 examining medical officer, stated that it was on 23rd July, 2022 that the accused sexually assaulted his daughter A. S. This is captured in PEX 1 (PF3A). In my view, from the totality of the evidence, the accused was placed at the scene of the crime not as a mere person sharing a bed with a daughter but as a person who sexually assaulted the victim. He was at $25$ the house of his sister Atimango Harriet who at the material time was working away from home. The accused picked his daughter from the house where she used to sleep with her Aunties (sisters of the accused). His claim

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- that he did so because his sisters were prostitutes and would always go $\mathsf{S}$ dancing, leaving A. S vulnerable, and would spoil A. S, is incredible. A. S testified, on the night in question, the Aunties were at the house where A. S and the Aunties used to sleep. Even other children of the Aunties of the victim who were much younger than the victim, used to sleep in that $10$ house. So the accused's decision to remove the girl child from the care of - fellow ladies under the guise of protecting her at night, is unbelievable. There is no evidence that someone sneaked into the infamous house when the accused and the victim were asleep and defiled the girl. The Defence attempt during submission to paint a picture of an intervener, is with respect, without foundation. I reject it. The accused did not merely share 15 a bed with his daughter but did the most sordid act of defiling his own daughter. I am satisfied that the prosecution was able to place the accused at the scene of the crime. The accused also placed himself at the scene of the crime. He was not there merely to share a bed with his girl child but 20 there to defile her as well. In terms of section 40 (3) of the Trial on Indictments Act, Cap 23, and by the force of precedents in **Republic Vs.** Cherop A Kinei & another [1936] 3 EACA 124; Chila Vs. Republic [1967] EA 722 at p. 723 (CA); Kibale Ishma Vs. Uganda, Crim. App. - No. 21 of 1998 (SCU); Livingstone Sewanyana Vs. Uganda, Crim. - 25 Appeal No. 19 of 2006 (SCU), I find that the evidence of the victim was corroborated by the medical report and what PW1 told the medical personnel. I also find the victim's evidence further corroborated by the

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$\mathsf{S}$ accused who admitted spending the night in question with the victim. Thus in the instant case, issues of incorrect identification does not arise. The victim knew her father. They were in the same room alone. No other male person entered their room that night. Court notes that when asked by court whether she would wish to live with her father once he is out of prison, the victim started crying saying she fears the accused will have $10$ more sexual intercourse with her. In light of the foregoing analysis I hold that the prosecution has proved the element of participation of the accused beyond reasonable doubt. I agree with the assessors' opinion in that regard.

The other ingredient in the offence indicted, is the relationship between the victim and the accused. It needs no emphasis that the accused is the father of the victim. The victim identified the accused in chambers of court as being her father. The grandmother of the victim also stated that the accused is the father of the victim. The accused also accepted that A. S is his daughter. I accordingly find that the relationship of child-parent is established beyond reasonable doubt as between the victim of sexual assault and the accused as the perpetrator. I also agree with the assessors' opinion in that regard.

In conclusion, it is my finding that the prosecution has established all the essential ingredients of the offence of aggravated defilement beyond

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reasonable doubt. The quality of the evidence was good. What matters in $\mathsf{S}$ law is the quality and not the quantity of evidence. See section 133 of the Evidence Act Cap.6 and the case of Sewanyana Livingstone Vs. Uganda, Supreme Court Criminal Appeal No. 19 of 2006. Thus in agreement with the assessors, I find the accused guilty of the offence of aggravated $10$ defilement. I accordingly convict the accused Okethwengu John Smith of aggravated defilement, contrary to section 129 $(3)$ $(4)$ $(a)$ and $(c)$ of the Penal Code Act Cap 123.

Dated, signed and delivered at Nebbi this 18th December, 2023

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George Okello JUDGE HIGH COURT

## 20 Judgment read in Court

4:00 PM

18th December, 2023

## **Attendance**

Accused person in Court

Mr. Pirwoth Michael, on State Brief, for the accused

Mr. Acwica Samuel, and Mr. Naguyo Emmanuel, State Attorneys, for the

30 Prosecution

> Ms. Cwinyaai Grace, and Mr. Kapondombe Moris, Assessors Ms. Lilian Okech, Court Clerk/ Alur Interpreter

> > Huron. 18/12/2023 George Okello **JUDGE HIGH COURT**

## SENTENCE AND REASONS FOR SENTENCE

On convicting the accused for aggravated defilement, contrary to section 129 $(3)$ $(4)$ $(a)$ and $(c)$ of the Penal Code Act, the learned State Attorneys submitted that the convict is a first offender. However, they asserted that the offence is serious/ heinous. The convict defiled his own daughter whom he had a duty to protect. He reduced her into a sex object. She will suffer lifelong trauma. The victim was injured in the vagina and anus due to the sexual act. The starting point according to the State is 35 years imprisonment and the sentencing range is 30 years imprisonment to death under the Sentencing Guidelines. The State counsel propose 20 years imprisonment for the offence. The State argued that the long period in custody will enable the convict to reflect on his life so that when he eventually gets out of prison he will not do the same criminal act.

In mitigation the Defence counsel submitted that the convict remains a father to the victim and that their relationship of parentdaughter is for life notwithstanding the crime the convict committed. Counsel asserted that, so the convict needs to be given a sentence that will enable him return home soon enough to be able to reconcile with his daughter. The convict is only 28 years old and relatively young and thus capable of reforming. The Defence counsel argued that the 20 years proposed by the State is too harsh. He took court through sentencing conventions and proposed 10 years imprisonment.

In his allocatus, the convict prayed for 03 years imprisonment, stating that he has three other children to care for and his grandmother who currently takes care of them cannot do much.

The Prison Officer at Court informed Court that the convict has spent One (01) year, 04 (four) months and 17 (seventeen) days on remand, since 1st August, 2022.

I have considered both submissions and the request by the convict in his allocatus. The maximum punishment for aggravated defilement under section 129 (3) of the Penal Code Act is death sentence. However under paragraph 18 of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice)

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Direction L. N No. 8 of 2013, death penalty is reserved for cases that fall within the category of the "rarest of the rare". Of specific relevance in the instant case is paragraph 22 of the Sentencing Guidelines which provide the aggravating circumstances for a sentencing court to consider if it were to impose death sentence for aggravated defilement. I find the circumstances listed in paragraph 22 of Sentencing Guidelines absent from the instant matter. For example, repeated defilement, defilement by a serial offender; defilement where the offender knew or had reason to know he is HIV positive; cases of gang-defilement; cases where the victim suffered serious injuries; cases where the victim is physically disabled and vulnerable due to disability, and cases where the victim is mentally challenged. Thus death sentence is not an appropriate punishment in this case. The second gravest punishment for consideration is imprisonment for life. In the circumstances of this matter, I find imprisonment for life is not available because the circumstances that mitigate death sentence are absent (which becomes aggravating factors for life imprisonment). I note that the convict is a first offender and is also relatively young, being 28 and still capable of reforming. Thus imprisonment for life will deprive him of being useful to society on reforming. It is also the rule of practice that first offenders should ordinarily not be handed down maximum punishment imposed by law. See: Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993. The sentencing range for aggravated defilement provided for in part 1 of the Third Schedule to the Guidelines is 30 years up to death, with the starting point being 35 years. However, the sentencing guidelines has to be applied while considering the sentencing conventions in cases bearing similar resemblance though not precedents. Past cases do, however, afford material for consideration. See: Ogalo s/o Owoura Vs. R (1954) 21 EACA 270; Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993; Ninsiima Gilbert Vs. Uganda, C. A Crim. Appeal No. 180 of 2010. In the case of Kobushese Vs. Uganda, C. A. Crim. Appeal No. 110 of 2008 the Court of Appeal upheld a sentence of 17 years imprisonment imposed by the High Court where the convict, a 30 year old man had defiled a 5 year old girl. In Ninsiima Gilbert Vs. Uganda (supra), the Court of Appeal set aside the sentence of 30 years imprisonment imposed on the convict and substituted with a sentence of 15 years for aggravated defilement. In Ntambala Fred Vs. Uganda, Crim. Appeal No. 34 of 2015, the

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Supreme Court of Uganda upheld a sentence of 14 years imprisonment for aggravated defilement imposed by the trial court and upheld on first appeal by the Court of Appeal. There the victim was 14 years old. In Komakech Samuel vs. Uganda, C. A Crim. Appeal No. 440 of 2014 a sentence of 16 years imprisonment imposed by the trial court on the appellant whose age was not indicated who had defiled an 8 year old girl was upheld by the Court of Appeal.

The Defence submitted on the authorities where the courts imposed 10 and 13 years imprisonment. Those cases were cases of 1999 and 2004, respectively. The current trends, at least from the cases I have cited, appear to be that courts have imposed sentences ranging from 14 to 17 years. In this case, the convict has no past criminal record and appears remorseful but also relatively young at only 28 thus capable of reforming. In the circumstances, the starting point of 35 years imprisonment is discounted. However, considering the sentencing practices in the past cases I have deferred to, and those cited by the learned Defence counsel, which I appreciate, and considering that the convict sexually abused his daughter whom he had a constitutional and statutory duty to protect, and considering the age of the victim being 10 at the time, yet the offender was 28, thus a difference of 18 years, I consider a sentence of 12 years and 17 days to be appropriate. Considering the period of one year, four months and seventeen days spent on remand which is a credit to the convict pursuant to article 23 (8) of the Constitution of Uganda, 1995, and paragraph 15 (2) of the Sentencing Guidelines, I deduct the one year, four months and seventeen days from the proposed sentence of 12 years and 17 days and now sentence you Okethwengu John Smith, the convict, to 11 (eleven) years and eight months imprisonment, starting today 18th December, 2023. The convict is advised about his right of appeal to the Court of Appeal of Uganda, at Kampala, against both conviction and sentence, within 14 days from today, if dissatisfied.

## 40 Dated at Nebbi this 18th December, 2023

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HUADem. 18/12/2023 George Okello **JUDGE HIGH COURT**