Court name
HC: Criminal Division (Uganda)
Judgment date
23 March 2018

Uganda v Gadaf () [2018] UGHCCRD 86 (23 March 2018);

Cite this case
[2018] UGHCCRD 86
Short summary:

Criminal law

Coram
Mubiru, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

CRIMINAL CASE No. 0122 OF 2017

 

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

 

  1.  

 

     

GADAF JAMAL      ………….…………………………………….………………  ACCUSED

 

Before: Hon Justice Stephen Mubiru.

 

SENTENCE AND REASONS FOR SENTENCE

 

This case came up on 23rd March, 2018 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 between 27th February, 2017 and 25th May, 2017 at Oli "B" Cell in Arua District, the accused performed an unlawful sexual act with Faiza Safia, a girl below the age of 14 years.

 

When the case was called, the learned Resident State Attorney, Mr. Emmanuel Pirimba reported that he had successfully negotiated a plea bargain with the accused and his counsel. The court then invited the State Attorney to introduce the plea agreement and obtained confirmation of this fact from defence counsel on state brief, Mr. Ronald Onencan. 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 Resident State Attorney to narrate the factual basis for the guilty plea, whereupon she narrated the following facts; the accused was between the months of February and May 2017 living at Oli "B" Cell in Tanganyika ward and the victim was of the apparent age of 13 years and living with her parents. In February 2017 the victim was sent by her mother to the market but she did not return home and instead she went to the home of the accused and they began living as husband and wife and began having sex regularly. A search was mounted ant it is in May, 2017 when she was found in the home of the accused. He was immediately arrested. The victim and accused were examined on P.F. 3A and 24A respectively. The victim was found to be of the apparent age of 13 and of sound mental status. The hymen was ruptured and the probable cause was sexual intercourse. The pregnancy test returned positive and the pregnancy was 12 weeks. She was referred to antenatal care. The examination was done at Oli Health Centre IV where the accused too was examined and found to be of the apparent age of 25 and of sound mental condition. Both police forms 24 and P.F 3A were tendered as part of the facts.

 

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 four (4) years’ imprisonment proposed in the plea agreement, the learned State Attorney adopted the aggravating factors outlined in the plea agreement. The learned defence counsel adopted the mitigating factors outlined in the plea agreement too. In his allocutus, the convict had nothing to add to what was stated in the plea agreement.

 

I have reviewed the proposed sentence of four 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 8th 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 1st 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 6th 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 6th 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.

 

The aggravating factors in this case are that; the offence is punishable by death, it is rampant in the region, the victim was only 13 years old while the accused was 25 years old. On the other hand, the mitigating factors are that; the accused is a first offender, remorseful; he has readily pleaded guilty and is a relatively young man capable of reform. The victim delivered normally and has a kid the accused is liable to look after. The victim is not in school. 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 one year on remand, I hereby accept the submitted plea agreement entered into by the accused, his counsel, and the State Attorney and in accordance thereto, sentence the accused to a term of imprisonment of four (4) 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 23rd day of March, 2018                          

Stephen Mubiru

Judge,

 23rd March, 2018.