Court name
High Court of Uganda
Case number
Criminal Session Case 92 of 2020
Judgment date
4 September 2020

Uganda v Endroma (Criminal Session Case 92 of 2020) [2020] UGHC 160 (04 September 2020);

Cite this case
[2020] UGHC 160
Short summary:

Criminal Law — Aggravated Defilement C/s 129 (3) and (4) (d) of The Penal Code Act

Criminal Procedure: Sentencing—Life Imprisonment

Headnote and holding:

Criminal Law — Aggravated Defilement C/s 129 (3) and (4) (d) of The Penal Code Act—The age of a child may be proved is by the production of her birth certificate, or by the testimony of the parents and from courts own observationand assessment—section 129 (7) of The Penal Code Act — “disability” —is an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. A person may be disabled by physical, intellectual, or sensory impairment, medical conditions, or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature.

Criminal Procedure: Sentencing—Life Imprisonment — A sentence of life imprisonment may 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 re­offend 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.

Coram
Mubiru, J

Reportable

Criminal Sessions Case No. 092 of 2020

In the matter between

 

UGANDA                                                                                                        PROSECUTOR

And

ENDROMA PASCAL                                                                                       ACCUSED

Heard: 3 September, 2020

Delivered: 4 September, 2020.

 

JUDGMENT

STEPHEN MUBIRU, J.

Introduction:

  1. The accused in this case is indicted with one count of Aggravated Defilement C/s 129 (3) and (4) (d) of The Penal Code Act. It is alleged that the accused on the 22nd day of December, 2019 at Arikayi village, in Madi-Okollo District, performed an unlawful sexual act with Angucia Harriet, a girl below the age of 18 years, with a physical disability.

Prosecution evidence.

  1. The facts as narrated by the prosecution witnesses are briefly that the victim, P.W.2 Angucia Harriet, left home to pick a head scarf from her friend living on the same village. On her way back at around 6.00 pm - 7.00 pm at an isolated place along a village path, the accused came running after her and told her he loved her. She told him she was not interested but because of her weak left leg, the accused began using force on her. He held her, unzipped her dress from behind and pulled it off. He defiled her after which she began following him. She spent the night at the home of the accused and during the night he forcefully had sexual intercourse with her again. The following morning her mother P.W.3 Ayikoru Asumpta began searching for her and her search for the victim led her to the home of the accused where she found both of them. She proposed that they should be tested for HIV. On their way to hospital, the accused said he loved the victim as his wife. P.W.3 got annoyed and decided to leave the girl at the home of the accused and told him he had committed a big sin and that in three days he should go to her, but he never did and this prompted her to report the case to the police. The accused was arrested and together with the victim were taken for medical examination.

Accused’s evidence.

  1. In his defence, the accused stated that he was being prosecuted only because the family of the victim does not want him to marry her. A sister in law of the girls’ mother told her that when the accused was in school, he was in love with an HIV positive girl. The mother in law then asked the accused to go and see her with shs. 3,000,000/= and three goats. The Vice Chairperson L.C.1 was present and the Secretary for youth. The accused returned to his home with the girl. He had sexual intercourse with the girl and lived with her for a week. He was unaware at the time that she was below 18 because when he asked her she told him she was 20 years old that she was born in 1999. Later he realised that she was younger, at the age of 14 or 16 as stated by her mother. During all this his father was not at home. So he was taken together with the girl to the police.

The Burden and standard of proof.

  1. In this case, 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 he can only be 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).

Ingredients of the offence.

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

  1. The victim was below 18 years of age.
  2. The victim is a person with a disability
  3. A sexual act was performed on the victim.
  4. It is the accused who performed the sexual act on the victim.

a) The victim was below 18 years of age.

  1. The age of a child may be proved is by the production of her birth certificate, or 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). The victim P.W.2 Angucia Harriet, testified that she was 16 years old. On the other hand there is the admitted evidence of the police surgeon, P.W.1 Dr. Madrama Charles, who examined the victim on 31st December, 2019 (nine days after the day the offence is alleged to have been committed). His report, exhibit P. Ex.1 (P.F.3A) certified his findings that the victim was 17 years at the date of examination. The victim’s mother P.W.3 Ayikoru Asumpta testified that the victim was born on 31st April, 2004, hence 15 years old at the time of the offence. Although there is a disparity of two years between the age stated by the doctor on the one side and that stated by the victim and her mother on the other, in both instances the age is still below 18 years. In any event, the court had opportunity to see the victim when she testified in court and it was evident she was under that age. In his defence, the accused too admitted that he later realised that the victim was at the age of 14 or 16 as stated by her mother. On basis of all that evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that Angucia Harriet was a girl under the age of 18 years by 22nd December, 2019.

b) The victim is a person with a disability

  1. The next ingredient requires proof that at the time the act the victim was a person with disability. Under section 129 (7) of The Penal Code Act, “disability” means a substantial functional limitation of daily life activities caused by physical, mental or sensory impairment and environment barriers resulting in limited participation. It is an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. A person may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature. Chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would only substantially limit a daily life activity when the impairment is active. It is a condition which prevents one from performing any usual daily life physical or mental functions. Daily life activities include;- caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. To have substantial functional limitation, an individual must be substantially limited in performing a daily life activity as compared to most people in the general population. The determination of whether an impairment substantially limits a daily life activity requires an individualised assessment.
  2. The disability in this case is physical, the victim’s left leg is impaired from the waist down, thereby substantially limiting her capacity to walk and run normally. P.W.2 Angucia Harriet testified that it was because of that disability that she was victimised. P.W.1 Dr. Madrama Charles, examined the victim on 31st December, 2019 (nine days after the day the offence is alleged to have been committed). His report, exhibit P.E.1 (P.F.3A) certified his findings that the victim had a physical disability but with normal mental status at the date of examination. The victim’s mother P.W.3 Ayikoru Asumpta testified that the victim was four years old at the onset of that condition. Her leg got paralysed from the waist down. They initially thought it was a dislocation or fracture. They took her to hospital but she was not responding to medication. They tried herbs all in vain. It began affecting her arms as well. Later an operation was done on her leg in 2018 after it had become swollen and had gangrene. By then she was in primary four and had to drop out of school.
  3. The court had opportunity to see the victim when she testified in court and it was evident that her left leg was wasted, right from the hip joint to the toes and much smaller than the right one. As a result she walked with a very pronounced limp. On basis of all that evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that Angucia Harriet was a girl with a physical disability as at 22nd December, 2019.

C) The victim was subjected to a sexual act.

  1. The next ingredient to be proved is the fact that the victim was subjected to a sexual act. Section 129 (7) of the Penal Code Act defines sexual act to mean (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person’s sexual organ. Sexual organ means a vagina or a penis. The victim P.W.2 Angucia Harriet testified that when she spurned the advances made by the accused when they met along the village path, he took advantage of her weak left leg and began using force on her. He held her, unzipped her dress from behind and pulled it off. He had sexual intercourse with her after which she began following him. She spent the night at the home of the accused and during the night he forcefully had sexual intercourse with her again. This is corroborated by the admitted evidence of P.W.1 Dr. Madrama Charles, who examined the victim on 31st December, 2019 (nine days after the day the offence is alleged to have been committed). His report, exhibit P. Ex.1 (P.F.3A) certified his findings that the hymen was ruptured. The flaps of the vagina were torn at 3 O’clock. In his defence as D.W.1, the accused Endroma Pascal admitted that he had sexual intercourse with the girl and lived with her for a week. On account of all that evidence I am satisfied that the prosecution has proved beyond reasonable doubt that Angucia Harriet was subjected to an act of sexual intercourse while still under the age of eighteen years.

d) That it is the accused that performed the sexual act on the victim

  1. Lastly, the prosecution is required to prove beyond reasonable doubt that it is the accused that performed the sexual act on the victim. This ingredient is satisfied by adducing evidence, direct or circumstantial, showing that the accused as the perpetrator or a participant in the perpetration of the offence. In his defence, the accused admitted having committed the sexual act with the victim. P.W.2 Angucia Harriet testified that it was around 6.00 - 7.00 pm when she met the accused who told her he loved her and wanted a relationship with her. She told him she was not interested. The accused forced her inroad an act of sexual intercourse and after the act, she followed him up to his home and when she got there he sent her away saying she should leave. She told him that she was not going anywhere in light of what he had done to her and that if he wanted to kill her he should go ahead and her body would be found at his home. Those circumstances rule out the possibility of mistaken identification. P.W.3 Ayikoru Asumpta testified that her search for the victim led her to the home of the accused where she found both of them. She proposed that they should be tested for HIV. On their way the accused said he loved the victim as his wife. P.W.3 got annoyed and decided to leave the girl at the home of the accused and told him he had committed a big sin and that in three days he should go to her, but he never did.
  2. The defence raised by the accused is that of mistake of fact as to the age of the victim. Unfortunately for him, the accused’s knowledge of the victim's age is not an essential element of Aggravated defilement. Mistake as to the age of the victim is not a defence even though the accused had a reasonable belief, had exercised care to find out her age, or had been told by the victim that she was over age. This rule is an exception to the general defence of mistake of fact which states that if the accused believed there existed certain facts, which had they been true would have rendered the action lawful, then he was not guilty because he was incapable of entertaining the intent necessary to constitute the crime. Aggravated defilement is considered a “strict liability” offence; one that does not require proof that the accused knew the victim’s underage status. The defence of the accused this fails.

Order.

  1. Consequently, in agreement with the joint opinion of both assessors, I find that the prosecution has proved the case against the accused beyond reasonable doubt and therefore find the accused guilty. I hereby convict him of the offence of Aggravated Defilement c/s 129 (3) and (4) (d) of the Penal Code Act.

Dated at Arua this 4th day of September, 2020               ....................................................

Stephen Mubiru

Judge.

4th September, 2020.

SENTENCE AND REASONS FOR SENTENCE

  1. According to section 129 (3), the maximum penalty for the offence of Aggravated Defilement c/s 129 (3) and (4) (d) of the Penal Code Act, is death. However, this punishment is by sentencing convention reserved for the most egregious forms of perpetration of the offence such as where it has lethal or other extremely grave consequences. Since in this case death was not a very likely or probable consequence of the act and neither is it in the category of “the rarest of the rare,” I have discounted the death sentence.
  2. Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. Regulation 22 of The Sentencing Guidelines outlines factors that may justify imposition of a sentence of life imprisonment. These include; (a) degree of injury or harm; (b) the part of the victim’s body where harm or injury was occasioned; (c) repeated injury or harm to the victim; (d) degree of intention to cause death or culpable negligence; (e) use and nature of the weapon; (f) the role of the offender in a group or gang or mob involved in the commission of the offence; (g) whether the offence was motivated by an intention to cause bodily harm; (h) whether the offence is a result of culpable negligence to discharge a duty tending to the preservation of life; or (i) any other factor as the court may consider relevant. Only one aggravating factor so prescribed would justify the imposition of a sentence of life imprisonment, is applicable to this case, i.e. the victim was defiled repeatedly by the offender.
  3. 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.

 

  1. When imposing a custodial sentence on a person convicted of the offence of Aggravated Defilement c/s 129 (3) and (4) (d) of the Penal Code Act, theConstitution (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.
  2. However, I am mindful of the decision of the Court of Appeal 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.
  3. I have considered the decision in Kato Sula v Uganda, C.A. Crim. Appeal No 30 of 1999, where the Court of Appeal upheld a sentence of 8 years’ imprisonment for a teacher who defiled a primary two school girl. In Bashir Ssali v Uganda, S.C. Crim. Appeal No 40 of 2003, the Supreme Court, on account of the trial Court not having taken into account the time the convict had spent on remand, reduced a sentence of 16 years’ imprisonment to 14 years’ imprisonment for a teacher who defiled an 8-year-old primary three school girl. The girl had sustained quite a big tear between the vagina and the anus. In Tujunirwe v. Uganda, C.A. Crim. Appeal No 26 of 2006, where the Court of Appeal in its decision of 30th April 2014, upheld a sentence of 16 years’ imprisonment for a teacher who defiled a primary three school girl. In light of the sentencing range apparent in those decisions and the aggravating factors mentioned before, I have considered a starting point of twenty-five years’ imprisonment.
  4. Although the manner in which this offence was committed did not create a life threatening situation, they are sufficiently grave to warrant a deterrent custodial sentence. The accused took advantage of a particularly vulnerable child. A combination of these relevant factors should result in an adjustment from the starting point of twenty-one (21) years’ imprisonment.
  5. The seriousness of this offence is mitigated by the factors stated in mitigation by his counsel and his own allocutus, which are; he is a first offender, remorseful and at the age of 20 years has high prospects of reform. The severity of the sentence he deserves has been tempered by those mitigating factors and is reduced from the period of twenty-one (21) years’ imprisonment, proposed after taking into account the aggravating factors, now to a term of imprisonment of thirteen (13) years’ imprisonment.
  6. 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 an accused. 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 thirteen (13) years’ imprisonment arrived at after consideration of the mitigating factors in favour of the convict, he having been charged on 10th January, 2020 and has been in custody since then, I hereby take into account and set off nine months as the period the accused has already spent on remand.

Order:

  1. In the final result, I therefore sentence the accused to twelve (12) years and three (3) months’ imprisonment, to be served starting today. The convict is advised that he has a right of appeal against conviction and sentence, within a period of fourteen days.

Stephen Mubiru

Session Judge

 

 

 

Appearances

State Attorney          :           Mr.Okello Richard

For the accused      :           Ms. Eyokia Jill Dawa