REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA

AT FORT PORTAL

CRIMINAL APPEAL NO. 0180 OF 2010

Appeal from the Judgement (Akiiki-Kiiza, J) dated 09.09.2013 in High Court at Fort Portal Criminal Session Case No. 041 of  2011)

NINSIIMA GILBERT ::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

Coram: Hon. Mr. Justice Remmy Kasule, JA

Hon. Mr. Justice Eldad Mwangusya, JA

Hon. Mr. Justice F.M.S. Egonda-Ntende, JA

      JUDGMENT

The appellant was convicted of aggravated defilement contrary to Sections 129(3) (4)(a)of the Penal Code Act and sentenced to 30 years imprisonment.

       Having abandoned the ground of appeal that challenged his conviction, and with leave of this Court, the appellant is appealing only on one ground that the sentence of 30 years passed upon him was harsh and manifestly excessive. He prays that the same be set aside and a reduced sentence substituted.

 Learned Counsel Bahenzire Angella appeared for the appellant while Principal state Attorney Tumuhaise Rose represented the state.

The facts as found by the trial Judge were that on 23.11.09 10 at Ruhangire village, Kyegegwa District, the appellant defiled Matembe Miria, a girl aged 8 years. The mother of the victim, one Mwebaze Scovia was in the garden with the victim and also with Evaline Twikirize, wife to the appellant. In the meantime, the appellant was in his house sleeping on a mat where also his baby of which his wife, Evaline Twikirize, was the mother, was also sleeping. From the garden, Evaline Twikireze, sent the victim, Matembe Maria, to go and get the baby from the house where it was sleeping. When the victim reached the house, the appellant aged 29 seized her and defiled her. The victim later revealed this to her mother whereupon the appellant was arrested, charged, prosecuted, convicted and sentenced to 30 years imprisonment. Hence this appeal.

     For the appellant, it was submitted that the sentence of 30 years was manifestly excessive as Courts over a number of years had imposed for similar offences sentences ranging from 15 to 18 years imprisonment or thereabout.

      The sentence of 30 years was more than life imprisonment which the Prisons Act puts at 20 years for purposes of remission. The appellant, aged 29 years at the time of the offence, will be about 59 years by the time he leaves prison if he serves the 30 years sentence. He will thus miss an 35 opportunity to reform as all that time he will be under confinement serving the sentence.

Being a family person and a parent the appellant would be missed by his wife, children and his community for 30 years. Counsel thus prayed that the sentence of 30 years,

 being manifestly excessive, be set aside and substituted with a sentence of 10 years imprisonment.

Counsel for the State opposed the appeal. She submitted that the sentence of 30 years was appropriate as the appellant who was aged 29 years defiled a victim aged only 8 years. The appellant who was supposed to protect the victim had instead defiled her. He had also disabused the trust of the mother of the victim and that of his (appellant’s) wife who, all along, had regarded him as a responsible husband and parent. He had instead defiled the young victim, daughter of a neighbour and a villagemate.

Further, the victim had signs of venereal disease which caused her and her parents more trauma. Counsel thus prayed that the sentence of 30 years be not disturbed.

This Court can only interfere with the sentence of the trial Court if that sentence is illegal, being based upon a wrong principle, or the Court has overlooked a material factor, or the sentence is harsh or manifestly excessive. See: KIZITO SENKULA V UGANDA: CR. APPEAL NO. 24 /2001 (SC)

: JAMES vs R:(1950) 18 EACA 147 and

Ogalo S/O Owora VS R (1954)24 EACA 270

We note that the trial Judge while sentencing the appellant held that:

“Putting everything into account and given the sentencing range for aggravated defilement, I sentence the accused to 30 (thirty) years imprisonment*’.

By “sentencing range” we understand the trial to have been referring to the range given in the recently published Judiciary sentencing guidelines.

 In our considered view, the said guidelines have to be applied taking into account past precedents of Court  decisions where the facts of those decisions have a resemblance to the case under trial. We, on our part, have not come across any past Court decisions where a sentence of 30(thirty) years imprisonment was imposed upon a convict of a defilement case.

In Court of Appeal Criminal Appeal No. 222 of 2003 Bukenya Joseph vs Uganda, the appellant aged about 65 years and married with three wives, defiled a victim aged 6 years. The Court of appeal confirmed the sentence of life imprisonment which at that time i.e. 23.07.2010 still meant 20 years imprisonment according to the Prisons Act.

In Kizito Senkula vs Uganda: Criminal Appeal No. 24 of 2001 (SC) the appellant, an adult male, defiled a victim of 11 years. The Supreme Court found the sentence of 15 years imprisonment appropriate, but had to reduce the same to 13 years because the trial Judge had been vague in his sentence, as to whether or not the 2 years remand period had been included or excluded from the said sentence. The Court resolved the doubt in favour of the appellant with the stated reduction in sentence.

The Supreme Court in SAM BUTEERA VS UGANDA, Criminal Appeal No. 21/94 upheld a sentence of 12 years imprisonment as appropriate where an adult herdsman defiled a victim aged 11 years only.

As to the victim being infected with a venereal disease, being an aggravating factor, we observe that the Court record does not show that it was conclusively established that the victim had been infected with a venereal disease by the appellant. The medical report only indicated that the victim had a foul smelling, whitish/yellowish discharge from her private parts. The medical report on appellant did not show he had a venereal disease. It is not clear whether the victim was not medically treated of the discharge.