Court name
High Court of Uganda
Case number
Criminal Case 98 of 2020
Judgment date
9 September 2020
Title

Uganda v Candia Tom (Criminal Case 98 of 2020) [2020] UGHC 175 (09 September 2020);

Cite this case
[2020] UGHC 175
Headnote and holding:

Criminal Law: — Aggravated Defilement C/s 129 (3) and (4) (a) of The Penal Code Act. — The burden of proof lies on the prosecution to prove that; the victim was below 14 years of age, a sexual act was performed on the victim and it is the accused who performed the sexual act on him.

Criminal Procedure—Sentencing—section 129 (3) PC A, —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. Where the death penalty Is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. This is guided by Regulation 22 of the Sentencing Guidelines. — 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.

Coram
Mubiru, J

 

 

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

Reportable

Criminal Sessions Case No. 0098 of 2020

UGANDA

In the matter between

 

APPELLANT

And

CANDIA TOM                                                                                           ACCUSED

Heard: 9 September, 2020.

Delivered: 9September, 2020.

Criminal Law: — Aggravated Defilement C/s 129 (3) and (4) (a) of The Penal Code Act. — The burden of proof lies on the prosecution to prove that; the victim was below 14 years of age, a sexual act was performed on the victim and it is the accused who performed the sexual act on him.

Criminal Procedure—Sentencing—section 129 (3) PC A, —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. Where the death penalty Is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. This is guided by Regulation 22 of the Sentencing Guidelines. — 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.

JUDGMENT

Introduction:

  1. The accused in this case is indicted with one count of Aggravated Defilement C/s 129 (3) and (4) (a) of The Penal Code Act. It is alleged that the accused on the 26th day of October, 2019 at Junior Quarters, in Arua District, performed an unlawful sexual act with Zalika Faiza, a girl below the age of 14 years.

Prosecution evidence.

  1. The facts as narrated by the prosecution witnesses are briefly that the victim, P.W.2 Zalika Faiza, spent the fateful day selling mandazi. At the end of the day, she realised there was a shortage in the day’s sales. She sat down on a stone by the roadside contemplating what to do next for she feared she would be punished if she returned home without the money. At around 7.30 pm a man came and asked her why she was sitting on a stone and she told him she had realised losses in the sale of Mandazi and feared to go back home. He went away. The accused came next and asked her the same question. She gave him the same answer and he told her to follow him to his home so that he gives her some money. She told him no. He picked her bucket and she was forced to follow him. At the Church they met another man. He told the man that he was taking her to his home to get some money. It was threatening to rain. When they got to his door he asked her to enter but she resisted. He pulled her into the house by the hand. She did not see anyone inside the house but only saw utensils. When they got inside the house of the accused, it was raining by that time. He threw her down and he began having sexual intercourse with her. He had only removed her panties. He also removed his pair of trousers half way and the pants. She screamed but it was raining and no one came to her rescue. He kept her in his house up to around 10.00 pm. During all that time he was having sex with her. He had sex with her three times.
  2. After the act they came out of the house and he told her he was going to pick money from a mobile money point. She was crying. They went to a certain place near the Total petrol station and he told them he wanted mobile money. They told him they could only give him 15,000/= on condition he left his phone behind since the mobile money point was closed. They saw her crying and asked the reason. When she told them they got hold of the accused and tied him up with ropes. This was corroborated by P.W.3 Abdu Karim Ali who testified that he was at the petrol station at around 11.00 pm when the accused went to him and he asked him how he could help him as a customer. The accused told him that he was looking for mobile money. He wanted to transact from his phone. He wanted to withdraw his mobile money account. He told the accused that they did not have that service at the station but as a customer he could help him out. He noticed that he intended to withdraw from an “Ayo” account, which can only be used in emergencies. He became suspicious because his work in sensitive at a fuel station. He called his security man to interrogate the accused. As he was calling the security man, he saw the victim and went to her. She told him that the man, pointing to the accused, had raped her. He caused the arrest of the accused and called the police to the scene. The accused was taken to the police station and detained. The victim and the accused were medically examined the following morning. The act of sexual intercourse was proved by that medical examination.

Accused’s evidence.

  1. In his defence as D.W.1 the accused, Candia Tom stated that when she met the victim seated on a stone, she told him that a man had stolen from her all the day’s sales yet the mandazi she was selling was not hers. She asked him to help her with the money for if she returned home without it she would be beaten badly or sent away. She asked for shs. 11,500/= from him and that she would pay back the following day. When she took her to his home intending to find dome money to help her, it began to rains heavily and he opened the door to his house. He entered the house. He had left her out but she asked him to open for her. He gave her a plastic chair. She sat on it. While inside his house, the victim moved closer to him and began kissing him and that is when he was tempted. He kissed her back. He never penetrated her sexually. He did not even undress himself. They stopped at that. He kissed her on the lips for five minutes. That is how it ended.
  2. Later when he went in search of mobile money at the petrol station, the petrol station attendant knew his name a regular customer. He overheard him pledging to get the accused into trouble. He was asked to sit down and he did so. People gathered and began beating him. Some said he should be left alone. The beating continued. He was tied up with a rope. They said he had had sexual intercourse with the girl. He denied since he knew sexual intercourse was penetration of a girl’s vagina. The police were called and one came but not in uniform. All four of them were taken to the police where he was detained.

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.

  1. 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 14 years of age.
  2. A sexual act was performed on the victim.
  3. It is the accused who performed the sexual act on the victim.
  1. That the victim was below 14 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). In this case the victim, Zalika Faiza, testified as P.W.2 and stated that she was 13 years old. Her mother (Fatuma Candiru) testified as P.W.4 and said she was She was 13 years old last year although she had forgotten the year of her birth. The elder sister of Zalika is about 15 years. The father used to keep all Zalika’s documents relating to her birth and those from school but they got burnt in the house. Consider evidence of P.W.1 SP Dr. Madrama Charles the Police Surgeon at Arua Police Health Centre III examined the victim on 27thOctober, 2019 (the day after that on which the offence is alleged to have been committed). His report, exhibit P. Ex.2 (P.F.3A) certified his findings that on basis of the dental formula of 28 teeth, four teeth less than an adult, with no wisdom teeth or the third molar set which develop at 18 years, and with secondary sexual characteristics of breast and pubic hair underdeveloped, she was of the apparent age of about 13 years old at the time of that examination. The court had the opportunity to see her when she testified. It was evident that she was still below the age of fourteen years. On basis of all that evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that Zalika Faiza was a girl under the age of 14 years by 26th October, 2019.
  1. That a sexual act was performed on the victim.
  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 in this case P.W.2 Zalika Faiza testified that when they got inside the house of the accused, it was raining by that time. He threw her down and he began having sexual intercourse with her. He had only removed her panties. He also removed his pair of trousers halfway and the pants. She screamed but it was raining and no one came to her rescue. He kept her in his house up to around 10.00 pm. During all that time he was having sex with her. He had sex with her three times.
  2. P.W.1 SP Dr. Madrama Charles the Police Surgeon at Arua Police Health Centre III examined the victim on 27thOctober, 2019 (the day after that on which the offence is alleged to have been committed). In her report, exhibit P. Ex.2 (P.F.3A) certified his findings that in the genitals he found the vulva was soiled with whitish mucus which he thought would be candidiasis. The vagina was open yet it should be closed at her age. The hymen was freshly raptured and tender on digital examination. It could admit one finger at 2 cms wide. The introitus was inflamed, reddish and had tears at 3 O’clock. At birth a vagina is sealed and when there is any penetration the hymen tends to tear off. The tear could be caused by a finger, pen etc. The probable cause was a penis or blunt object. This time it could not be any of that because there was history taken from the survivor that someone caused it. He prescribed PEP and emergency contraceptive pills. The probability of pregnancy was high from that age. He concluded that she was a minor who had been sexually abused. P.W.3 Abdu Karim Ali, testified that shortly after the incident, she saw the victim standing in the rain about ten meters away, looking devastated, exhausted and crying. She was not fine. He went to the girl and asked her how he could help. She was crying seriously and he realised that there was something wrong. She told him that the man, pointing to the accused, had “raped” her. The victim’s mother P.W.4 Fatuma Candiru testified that the following day at 9.00 am a police officer brought her on a motorcycle and they found her at home. She was not walking normally. She checked her and found signs of a wound in her vagina and she saw semen there as well. She asked her what had happened. She told her the accused had raped her. The accused was at the police station at the time.
  3. In his defence as D.W.1 the accused, Candia Tom stated that while inside his house, the victim moved closer to him and began kissing him and that is when he was tempted. He kissed her back. He never penetrated her sexually. He did not even undress himself. They stopped at that. He kissed her on the lips for five minutes. That is how it ended. On account of the prosecution evidence that was consistent and not weakened by cross-examination, I find that physical intimacy with the victim went beyond mere kissing. I therefore reject the version presented by the accused. I am satisfied that the prosecution has proved beyond reasonable doubt that Zalika Faiza was subjected to an act of sexual intercourse while still under the age of fourteen years.
  1. That it is the accused who 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 placed himself at the scene of crime and admitted having been engaged in an act of physical intimacy with the victim. He only denied having performed an act of sexual intercourse. Considering the fact that from the time the accused met the victim up to the time of his arrest, the victim began crying only after his encounter with the accused, the victim was in the company of the accused right from the roadside up to the time of his arrest, there is no possibility of mistaken identification.

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) (a) of the Penal Code Act.

Dated at Arua this 9th day of September, 2020            ............................................

Stephen Mubiru Judge. 9thSeptember, 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.
  4. 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.

  1. 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.
  2. 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.
  3. 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 vulnerable child, trying to help her mother earn a living, when he found the child in a state of confusion. He not only abducted her by trickery but also had multiple episodes of acts of sexual intercourse with her within a spate of about three hours. He inflicted tears in her private parts, causing her physical pain and mental distress. A combination of these factors should result in a starting point of twenty-six (26) years’ imprisonment.
  4. 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 33 years has high prospects of reform. He has family responsibilities. The severity of the sentence he deserves has been tempered by those mitigating factors and is reduced from the period of twenty-six (26) years’ imprisonment, proposed after taking into account the aggravating factors, now to a term of imprisonment of nineteen (19) years’ imprisonment.
  5. 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 nineteen (19) years’ imprisonment arrived at after consideration of the mitigating factors in favour of the convict, he having been charged on 30th October, 2019 and has been in custody since then. I hereby take into account and set off eleven months as the period the accused has already spent on remand. I therefore sentence the accused to eighteen (18) years and one (1) month’s imprisonment, to be served starting today.

[27] 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         : Ms. Gertrude Nyipir

For the accused : Mr. Bundu Richard