Court name
HC: Criminal Division (Uganda)
Judgment date
7 February 2018

Uganda v Nsubuga (Criminal Session Case-2016/) [2018] UGHCCRD 23 (07 February 2018);

Cite this case
[2018] UGHCCRD 23
Coram
Mubiru, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT LUWERO

CRIMINAL SESSIONS CASE No. 0072 OF 2016

UGANDA      ……………………………………………………                PROSECUTOR

VERSUS

NSUBUGA PATRICK        ……………………………………………………   ACCUSED

Before Hon. Justice Stephen Mubiru

JUDGMENT

 

The accused is charged with one count of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act. It is alleged that on the 2nd day of July, 2015 at Kabogwe village in Nakaseke District, the accused performed an unlawful sexual act with Mutooni Winifred, a girl aged three years.

 

The facts as narrated by the prosecution witnesses are briefly that in early morning hours of 2nd July, 2015 the accused left his home and went to that of P.W.4 Nsubuga Muhammad on the same village, to undertake odd jobs there. On his way, he passed by the home of the victim where he exchanged greetings with the mother of the victim P.W.3 Musabe Yesu Joyce whom she asked what the name of the victim was. Later, the victim too went to the home of P.W.4, as she was accustomed to do, intending to play with her friend there. P.W.4 had by that time asked the accused to winnow some dry harvested beans while the children played within a short distance from where he undertook this task. In the meantime, P.W.4 went about his activities of making bricks not far away from there and from time to time as he stood up in the pit, he could see the children play in his compound.

 

The accused disappeared for some time before he had completed the first task assigned to him, at more or less the same time that the victim did, only for him to re-emerge later and when he returned, P.W.4  asked him to prepare some posho and ultimately sent him to the trading centre to purchase tomatoes. By that time the victim had complained to her mother who was by then cutting sweet potato vines at the home of P.W.4 for planting, that she had been defiled by a man. On their way to the clinic, the victim pointed out the accused to her mother, P.W.3 as the man who had defiled her. The accused was arrested from the trading centre where he had been sent to buy tomatoes. In his defence, he denied the offence. He stated that the father of the victim, P.W.2 Kaliisa Godfrey bore him a grudge for his failure to repay a loan of Shs. 200,000/= he had borrowed from P.W.2 months before, upon security of his garden of maize. When the garden was destroyed by livestock, the accused migrated to another village where stayed for about two months and planted another garden of maize. He returned to Kabogwe village when the maize was almost mature, only to be arrested and implicated in the commission of this offence.

 

The prosecution has the burden of proving the case against the accused beyond 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 because of weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531). By his plea of not guilty, the accused put in issue each and every essential ingredient of the offence with which he is charged and the prosecution has the onus to prove each of the ingredients beyond reasonable doubt. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

 

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

  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 first ingredient of the offence of Aggravated defilement is proof of the fact that at the time of the offence, the victim was below the age of 14 years. The most reliable way of proving the age of a child is by the production of her birth certificate, followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive such as the court’s own observation and common sense assessment of the age of the child (See Uganda v. Kagoro Godfrey H.C. Crim. Session Case No. 141 of 2002).  

 

In this case the victim did not testify and was not produced in court. Her father Kaliisa Godfrey who testified as P.W.2, never disclosed her age. P.W.4 Nsubuga Muhammad, a neighbour who was the last one to see the child before the alleged offence was committed too never disclosed her age. The prosecution relies only on the testimony of P.W.3 Musabe Yesu Joyce, the victim's mother who testified that the victim was three years old at the time of the offence. According to section 133 of The Evidence Act, subject to the provisions of any other law in force, no particular number of witnesses in any case is required for the proof of any fact. Evidence is not to be counted but only weighed and it is not the quantity of evidence, but the quality that matters. Consequently, the testimony of a witness alone, if believed, is sufficient to establish any fact that requires proof. It is only if some aspect of that testimony is found unreliable or lacking that the court will look for corroboration. This witness was not cross-examined on this point, did not appear to be mistaken nor have any reason to misstate the age of the victim. I am therefore inclined to believe her. In agreement with the assessors, I find that on basis of the available evidence, the prosecution has proved beyond reasonable doubt that Mutooni Winifred was a girl below fourteen years as at 2nd July, 2015.

 

The second ingredient required for establishing this offence is proof that the victim was subjected to a sexual act. One of the definitions of a sexual act under section 129 (7) of the Penal Code Act is penetration of the vagina, however slight by the sexual organ of another or unlawful use of any object or organ on another person’s sexual organ. Proof of penetration is normally established by the victim’s evidence, medical evidence and any other cogent evidence, (See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 (Unreported). The slightest penetration is enough to prove the ingredient.

 

In the instant case, the victim did not testify. The accused retracted his consent to the medical evidence that had been admitted during the preliminary hearing and the doctor who examined the victim did not testify. The prosecution relies on the eye witness account of P.W.3 Musabe Yesu Joyce, the victim's mother who testified that her daughter went to her while she was in the garden of P.W.4 Nsubuga Muhammad, where she was cutting sweet potato vines for planting and told her she had been defiled. She examined her and there was semen on her private parts. During her medical examination done in her presence at a clinic nearby, the witness saw blood in the victim's private parts as well. To constitute a sexual act, it is not necessary to prove that there was deep penetration. The slightest penetration is sufficient (see Gerald Gwayambadde v. Uganda [1970] HCB 156; Christopher Byamugisha v. Uganda [1976] HCB 317; and Uganda v. Odwong Devis and Another [1992-93] HCB 70). This witness was not cross-examined on this point, did not appear to be mistaken nor have any reason to misstate the age of the victim. I am therefore inclined to believe her. Therefore, in agreement with both assessors, I find that this ingredient has been proved beyond reasonable doubt.

 

The last essential ingredient required for proving this offence is that it is the accused that performed the sexual act on the victim. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime. The accused denied having committed the offence and stated He stated that the father of the victim, P.W.2 (Kaliisa Godfrey) bore him a grudge for his failure to repay a loan of Shs. 200,000/= he had borrowed from him months before upon security of a garden of maize. When the garden was destroyed by livestock, the accused migrated to another village where stayed for about two months and planted another garden of maize. He returned to Kabogwe village when the maize was almost mature, only to be arrested and implicated in the commission of this offence.

 

To rebut that defence, the prosecution relies on circumstantial evidence woven together by the following strands; P.W.3 Musabe Yesu Joyce the victim's mother saw the accused that fateful morning walking in the direction of the house of P.W.4 and they exchanged greetings; the victim too went to play with another child at the home of P.W.4. Nsubuga Muhammad (P.W.4) testified that when the accused arrived at his home that morning he assigned him some work of winnowing harvested dry beans, later he asked him to prepare some posho and ultimately sent him to the trading centre to purchase tomatoes and it is from there that the accused was arrested. The accused disappeared before he had completed the first task assigned to him, at more or less the same time that the victim did only for him to re-emerge later. It is after the accused re-emerged that the victim complained to her mother that she had been defiled. On the way to the clinic, the victim pointed out the accused to her mother, P.W.3 as the man who had defiled her.

 

In a case depending exclusively upon circumstantial evidence, the court must find before deciding upon conviction that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The circumstances must be such as to produce moral certainty, to the exclusion of every reasonable doubt. It is necessary before drawing the inference of the accused’s responsibility for the offence from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference (see Shubadin Merali and another v. Uganda [1963] EA 647; Simon Musoke v. R [1958] EA 715; Teper v. R [1952] AC 480 and Onyango v. Uganda [1967] EA 328 at page 331). I find that there are no other co-existing circumstances which would weaken or destroy the inference that it is the accused who committed the offence. He had the opportunity and time to commit the offence.

 

I have considered the defence raised by the accused and I have found it to be incredible. If indeed there was such an arrangement between the accused and P.W.2, it was never put to him in cross-examination. It is  a clear afterthought. Contrary to what would be expected of a prudent borrower in the circumstances suggested by the accused, there is no evidence that the accused made an attempt to engage P.W.2 in re-negotiating the terms of payment. There is no convincing justification for his decision instead to going into hiding. It appears to me as a lame excuse designed to explain having fled from the village after the incident, had he had the opportunity to do so. His defence has been effectively disproved by the prosecution evidence, which has squarely placed him at the scene of crime as the perpetrator of the offence with which he is indicted. Therefore in agreement with both assessors, I find that this ingredient has been proved beyond reasonable doubt.

 

In the final result, I find that the prosecution has proved all the essential ingredients of the offence beyond reasonable doubt and I hereby convict the accused for the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act.

 

Dated at Luwero this 6th day of February, 2018.                   …………………………………..

                                                                                                Stephen Mubiru

                                                                                                Judge.

                                                                                                6th February, 2018

 

7th February, 2018

9.45 am

Attendance    

Mr. Senabulya Robert, Court Clerk.

            Mr. Ntaro Nasur, Resident State Attorney, for the Prosecution.

Mr. Tumubwine Asaph, Counsel for the accused person on state brief is present in court

            The accused is present in court.

            Both Assessors are in court

SENTENCE AND REASONS FOR SENTENCE

Upon the accused being convicted for the offence of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act, the learned Resident State Attorney prosecuting the case Mr. Ntaro Nasur prayed for a deterrent custodial sentence, on grounds that; although he has no previous record of the convict and he was on remand for two and half years, but the girl was only three years old. The accused betrayed the trust of the parents of the girl. The  minimum punishment is 35 years. The demeanour of the accused was wanting. He deserves twenty years' imprisonment.

 

In response, the learned defence counsel Mr. Katamba Sowali prayed for a lenient custodial sentence on grounds that; The convict is 25 years old and given an opportunity he can reform. He has been on remand since 30th July, 2015. He proposed that a sentence not exceeding five years. In his allocutus, the convict stated that before his arrest, he was living with his grandparents and he was the one catering to them. He has one child whom he was looking after together with the mother. He prayed that his remand period of 2 years, seven months and six days be considered as well.

 

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) (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 probable consequence of the act. I have 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 I have discounted the death sentence.

 

Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. Only one aggravating factor prescribed by Regulation 22 of the Sentencing Guidelines, which would justify the imposition of a sentence of life imprisonment, is applicable to this case, i.e. the victim was defiled repeatedly by an offender who is supposed to have taken primary responsibility of her. 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. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410).

 

There are cases where the crimes are so wicked that even if the offender is detained until he or she dies it will not exhaust the requirements of retribution and deterrence. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required (see R v. Edward John Wilkinson and Others (1983) 5 Cr App R (S) 105 at 109). However, since proportionality is  the  cardinal  principle  underlying  sentencing practice, I do not consider the sentence of life imprisonment to be appropriate in this case.

 

Although the manner in which this offence was committed did not create a life threatening situation, in the sense that death was not a very likely immediate consequence of the act such as would have justified the death penalty, they are sufficiently grave to warrant a deterrent custodial sentence. At the time of the offence, the accused was 23 years old and the victim 3 years old. The age difference between the victim and the convict was 25 years. He abused the trust of the parents of with the victim. The victim was a toddler.

 

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 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. I have to bear in mind the decision in Ninsiima v. Uganda Crim. Appeal No. 180 of 2010, where the Court of appeal opined that the sentencing guidelines have to be applied taking into account past precedents of Court, decisions where the facts have a resemblance to the case under trial. In that case, it set aside a sentence of 30 years’ imprisonment and substituted it with a sentence of 15 years’ imprisonment for a 29 year old appellant convicted of defiling an 8 year old girl

 

In that regard, I have considered the decision in Birungi Moses v. Uganda C.A Crim. Appeal No. 177 of 2014 where a sentence of 30 years’ imprisonment was reduced to 12 years’ imprisonment in respect of a 35 year old appellant convicted of defiling an 8 year old girl. In another case, Ninsiima Gilbert v. Uganda, C.A. Crim. Appeal No. 180 of 2010, the Court of Appeal set aside a sentence of 30 years’ imprisonment and substituted it with a sentence of 15 years’ imprisonment for a 29 year old appellant convicted of defiling an 8 year old girl. Lastly, in Babua v. Uganda, C.A Crim. Appeal No. 303 of 2010, a sentence of life imprisonment was  substituted with one of 18 years’ imprisonment on appeal by reason of failure by the trial Judge to take into account the period of 13 months the appellant had spent on remand and the fact that the appellant was a first offender. The Court of Appeal however took into account the fact that the appellant was a husband to the victim’s aunt and a teacher who ought to have protected the 12 year old victim.

 

Although the circumstances of the instant case do not justify the imposition of a sentence of life imprisonment, they are sufficiently grave to warrant a deterrent custodial sentence. The convict traumatised the victim physically and psychologically and abused a position of trust. It is for those reasons that I have considered a starting point of twenty four years’ imprisonment. The seriousness of this offence is mitigated by a number of factors; the fact that the convict is a first offender, of a relatively youthful age and he has considerable family responsibilities. The severity of the sentence he deserves has therefore been tempered by those mitigating factors and is reduced from the period of twenty four years, proposed after taking into account the aggravating factors, now to a term of imprisonment of twenty years.

 

It is mandatory under Article 23 (8) of the Constitution of the Republic of Uganda, 1995 to take into account the period spent on remand while sentencing a convict. Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, requires the court to “deduct” the period spent on remand from the sentence considered appropriate, after all factors have been taken into account. This requires a mathematical deduction by way of set-off. From the earlier proposed term of seventeen years’ imprisonment, arrived at after consideration of the mitigating factors in favour of the convict, the convict having been charged on 3rd July,  2015 and been in custody since then, I hereby take into account and set off two years and six months as the period the convict has already spent on remand. I therefore sentence the accused to a term of imprisonment of seventeen (17) years and ix (6) months, to be served starting today.

 

The convict is advised that he has a right of appeal against both conviction and sentence, within a period of fourteen days.

 

Dated at Luwero this 7th day of February, 2018.                   …………………………………..

                                                                                                Stephen Mubiru

                                                                                                Judge.

                                                                                                7th February, 2018