Uganda v Atandu (Criminal Case No. 0171 of 2016) [2017] UGHCCRD 66 (19 April 2017)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

CRIMINAL CASE No. 0171 OF 2016

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

VERSUS

ATANDU GODFREY …….….…….….……..….…….….……..….…….… ACCUSED

Before: Hon Justice Stephen Mubiru.

SENTENCE AND REASONS FOR SENTENCE

This case came up on 13^th April 2017, in a special session for plea bargaining. The accused was indicted with the offence of Aggravated Defilement c/s 129 (3) and 4 (a) of The Penal Code Act. It was alleged that on 20^th January 2016 at Central Tanganyika village in Arua District, the accused performed an unlawful sexual act on a one Ayikoru Birungi, a girl under the age of fourteen years.

When the case was called, the learned State Attorney, Mr. Emanuel Pirimba reported that he had successfully negotiated a plea bargain with the accused and his counsel. The court then allowed the State Attorney to introduce the plea agreement and obtained confirmation of this fact from defence counsel on state brief, Mr. Okello Oyarmoi. The court then went ahead to ascertain that the accused had full understanding of what a guilty plea means and its consequences, the voluntariness of the accused’s consent to the bargain and appreciation of its implication in terms of waiver of the constitutional rights specified in the first section of the plea agreement. The Court being satisfied that there was a factual basis for the plea, and having made the finding that the accused made a knowing, voluntary, and intelligent plea bargain, and after he had executed a confirmation of the agreement, went ahead to receive the agreement to form part of the record. The accused was then allowed to take plea whereupon a plea of guilty was entered.

The court then invited the learned State Attorney to narrate the factual basis for the guilty plea, whereupon he narrated the following facts; the victim was in January 2016 aged 9 years. She and her other siblings used to live with their grandmother. Sometime around that time the grandmother went to Kampala on a business trip leaving the victim at home. On 20^th January 2016 the victim had a disagreement with her elder sister who beat her up at around 6.00 pm. She decided to leave home in protest heading to Arua Town. On the way she met the accused carrying a one Sabir, a neighbour on a motorcycle. He stopped the motorcycle and asked her where she was going. Sabir asked the accused to carry the victim back home. She got on the motorcycle and took the journey home by motorcycle. On the way the accused had sexual intercourse with her before taking her home. The matter was reported ton the guardian who reported to the police. The accused was traced for and arrested. On examination she was found to be 10 years old and had bruises in her private parts consistent with features of genital penetration. The accused was examined on P.F 24A from Arua Regional Referral Hospital and was found to be 20 years old with normal mental status. Both police forms 24A and 3A were tendered as part of the facts.

Considering the very tender age of the victim, the court cautioned the accused of the possibility of enhancement of the proposed sentence of nine (9) years’ imprisonment stipulated in the plea agreement. After the accused confirmed that despite that possibility he was still willing to go ahead with the plea bargain, he was asked whether the facts as narrated were correct.

Upon ascertaining from the accused that the facts as stated were correct, he was convicted on his own plea of guilty for the offence of Aggravated Defilement c/s 129 (3) and 4 (a) of The Penal Code Act. In justification of the sentence of nine (9) years’ imprisonment proposed in the plea agreement, the learned State Attorney adopted the aggravating factors outlined in the plea agreement which briefly are that; the offence is punishable by death, the victim was 10 years and the accused 20 at the time of the offence, she was physically and emotionally traumatized and the offence is rampant in the region. The learned defence counsel adopted the mitigating factors outlined in the plea agreement which briefly are that he has a wife and four children who depend on him for their welfare, at the age of 21, he is capable of reform and he has readily pleaded guilty. In his allocutus, the convict stated that his parents are still living. He has three other siblings all of whom are female and married. He is the only one who lives with his parents and they are now weak. One of the three sisters died and left two children and he was the one taking care of the children. Being in prison, he did not know how they are now. He finally left his destiny in the hands of court. The victim was not available in court to make her victim impact statement.

I have reviewed the proposed sentence of nine years’ imprisonment in light of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. I have also reviewed current sentencing practices for offences of this nature. In this regard, I have considered the case of Agaba Job v. Uganda C.A. Cr. Appeal No. 230 of 2003 where the court of appeal in its judgment of 8^th February 2006 upheld a sentence of 10 years’ imprisonment in respect of an appellant who was convicted on his own plea of guilty upon an indictment of defilement of a six year old girl. In the case of Lubanga v. Uganda C.A. Cr. Appeal No. 124 of 2009, in its judgment of 1^st April 2014, the court of appeal upheld a 15 year term of imprisonment for a convict who had pleaded guilty to an indictment of aggravated defilement of a one year old girl. In another case, Abot Richard v. Uganda C.A. Crim. Appeal No. 190 of 2004, in its judgment of 6^th February 2006, the Court of Appeal upheld a sentence of 8 years’ imprisonment for an appellant who was convicted of the offence defilement of a 13 year old girl but had spent three years on remand before sentence. In Lukwago v. Uganda C.A. Crim. Appeal No. 36 of 2010 the Court of appeal in its judgment of 6^th July 2014 upheld a sentence of 13 years’ imprisonment for an appellant convicted on his own plea of guilty for the offence of aggravated defilement of a thirteen year old girl. Lastly, Ongodia Elungat John Michael v. Uganda C.A. Cr. Appeal No. 06 of 2002 where a sentence 5 years’ imprisonment was meted out to 29 year old accused, who had spent two years on remand, for defiling and impregnating a fifteen year old school girl.

Having considered the sentencing guidelines and the current sentencing practice in relation to offences of this nature, and the fact that the convict has already spent slightly over one year on remand, (having been charged and remanded on 29^th January 2016) I hereby reject the proposed sentence in the submitted plea agreement entered into by the accused, his counsel, and the State Attorney and instead, sentence the accused to a term of imprisonment of eleven (11) years, 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.

Dated at Arua this 19^th day of April 2017. …………………………………..

Stephen Mubiru

Judge.

19.04.2017.