Court name
High Court of Uganda
Case number
Criminal Case-2020/83
Judgment date
24 September 2020

Uganda v Ayikobua Morris (Criminal Case-2020/83) [2020] UGHC 176 (24 September 2020);

Cite this case
[2020] UGHC 176
Headnote and holding:

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

— The prosecution must prove beyond reasonable doubt that the victim was below 14 years of age, that a sexual act was performed on the victim and that it is the accused who performed the sexual act on the victim —Section 129 (7) of the Penal Code Act — A sexual act means 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 age of the victim may be proved by the production of her birth certificate, or by the testimony of the parents or from court’s observation and participation of the accused 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 denied having committed the offence.

Criminal Procedure— Identification — Where a case rests heavily on identification evidence the Court must exercise great care so as to satisfy itself that there is no danger of mistaken identity—The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. A mistaken witness can be a convincing one and a number of such witnesses can all be mistaken — In order to satisfy Itself that the evidence is free from the possibility of mistake or error, the court considers; whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness to the accused at the time of observing the accused.

Coram
Mubiru, J

 

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

Reportable

Criminal Sessions No. 083 of 2020

UGANDA

In the matter between

 

PROSECUTOR

And

ACCUSED

AYIKOBUA MORRIS

 

Heard: 18September, 2020. Delivered: 24September, 2020.

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

— The prosecution must prove beyond reasonable doubt that the victim was below 14 years of age, that a sexual act was performed on the victim and that it is the accused who performed the sexual act on the victim —Section 129 (7) of the Penal Code Act — A sexual act means 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 age of the victim may be proved by the production of her birth certificate, or by the testimony of the parents or from court’s observation and participation of the accused 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 denied having committed the offence.

Criminal Procedure— Identification — Where a case rests heavily on identification evidence the Court must exercise great care so as to satisfy itself that there is no danger of mistaken identity—The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. A mistaken witness can be a convincing one and a number of such witnesses can all be mistaken — In order to satisfy Itself that the evidence is free from the possibility of mistake or error, the court considers; whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness to the accused at the time of observing the accused.

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 12th day of August, 2019 at Ajugi village, in Koboko District, performed an unlawful sexual act with Never Jackline, a girl below the age of 14 years.
  2. The facts as narrated by the prosecution witnesses are briefly that the accused lived at the home of the victim’s auntie, P.W.3 Ayikoru Irene, where he was a farm handyman. The accused occupied one of the houses in the homestead, the victim together with the daughters of her aunt another, and the aunt had her own. On the night of 12th day of August, 2019 P.W.3 Ayikoru Irene woke up at 3.00 am to sew some clothes. At around 4.00 am - 5.00 am she heard footsteps outside coming from the direction of the house of the accused proceeding to the direction of the house of the girls but by the time she got out he had already entered the girls’ house. She moved round deceptively and stood by the window then she heard the creaking of the bed and she decided to move to the doorway. The accused came out and she asked him where he was coming from and he responded “mummy I have not done anything.” He stood one and a half foot in front of her and the lower part of his shirt was wet. She entered the house and checked Never’s private parts and saw a liquid substance but did not see any blood on her vagina. The liquid was from the stomach down to her private parts. She noted that her stomach up to the private parts was wet and she was putting her panty on. By the time she came out of the house the accused had gone into hiding. He was searched for and found the following morning whereupon he admitted having defiled the girl, stating that Satan had tempted him. He was arrested and handed over to the police.

Accused’s evidence.

  1. In his defence, the accused stated that he worked for the victim’s auntie but she did not pay his shs. 600,000/= for the work he did. She just made the allegation against him because she did not want to pay his wages. She connived with the girl to frame him.

The Burden and standard of proof.

  1. 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. The victim was below 14 years of age.
  1. The age of a child may be proved 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). P.W.2 Never Jackline testified that she is nine years old. Her aunt P.W.3 Ayikoru Irene testified that P.W.2 was nine years old last year but it is her father who knows her date of birth. According to the admitted evidence of P.W.1 Dr. Anjuku Bond, a Police Surgeon at Koboko General Hospital, on 13th August, 2019 (a day after the incident) he examined the victim Never Jackline and found her to be aged about 9 years old, as indicated in his medical report exhibit P. Ex.1. 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 Never Jackline was a girl under the age of 14 years by 12th August, 2019.
  1. 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 Never Jackline testified that on the night of 12th August, 2019 a man entered the house where she was sleeping, removed her panty and climbed on her. She saw his penis and she was scared of it. He then put “his thing in hers.” After fixing his thing in hers he took a little time and then opened the door and got out. She did not feel pain though. She was walking normally after the act.
  2. P.W.3 Ayikoru Irene testified that when she entered the house immediately after the accused had exited, she checked Never’s private parts and saw the liquid substance but did not see any blood on her vagina. The liquid was from the stomach down to her private parts. She noted that her stomach up to the private parts was wet and she was putting her panty on. The wetness was a slippery substance. The liquid she saw was semen from a man. She knew it was semen because she knows what semen is and she had observed it on the stomach of the accused. It was slippery. According to the admitted evidence of P.W.1 Dr. Anjuku Bond Police Surgeon at Koboko General Hospital the following day 13th August, 2019 he examined the victim Never Jackline and found she had a broken hymen probably caused by criminal penetration, as indicated in his medical report exhibit P. Ex.1. This evidence was not weakened by cross-examination. I am satisfied that the prosecution has proved beyond reasonable doubt that Never Jackline was subjected to an act of sexual intercourse while still under the age of fourteen years.
  1. 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 denied having committed the offence. He attributed the accusation to a scheme contrived by P.W.3 Ayikoru Irene in a bid to chest him out of his wages amounting to shs. 600,000/= for work he did for her.
  2. To refute that defence, the prosecution relies on P.W.2 Never Jackline who testified that although the incident happened at night, there was light in the house, from a solar powered light bulb. It is the accused who forced the door open that night. She was asleep when the accused forced it open. When he entered he first went to open the food in a covered bowel on a tray that had been served for the other children who had gone to the disco. That is when she awoke as the accused was opening the lid which he covered immediately. She did not like the accused and he did not like her either. She did not like him because he is stubborn. She however stated that she had not said all this just because she did not like him. She testified against him not for beating her but for the sex he had with her.
  3. P.W.3 Ayikoru Irene testified that she woke up at 3.00 am to sew some clothes. At around 4.00 am - 5.00 am she heard footsteps outside coming from the direction of the house of the accused proceeding to the direction of the house of the girls but by the time she got out he had already entered the girls’ house. She moved round deceptively and stood by the window then she heard the creaking of the bed and she decided to move to the doorway. The accused came out and she asked him where he was coming from and he responded “mummy I have not done anything.” He stood one and a half foot in front of her and the lower part of his shirt was wet. There was light inside the house where the victim was. She controlled the switch from her room and she had not switched off the lights. The lights are powered by solar light. It is in the morning that the accused admitted having committed the offence. He told her he was tempted by Satan. P.W.4 AIP Amamu Festus recorded a charge and caution statement of the accused, exhibit P. Ex.3 by which he confessed to have committed the offence.

Identification:

  1. Since the prosecution case rests heavily on identification evidence, the Court must exercise great care so as to satisfy itself that there is no danger of mistaken identity (see Abdalla Bin Wendo and another v. R (1953) E.A.C.A 166\ Roria v. Republic [1967] E.A 583] Abdalla Nabulere and two others v. Uganda [1975] HCB 77\ and Bogere Moses and another v. Uganda, S.C. Cr. Appeal No. I of 1997). The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. A mistaken witness can be a convincing one and a number of such witnesses can all be mistaken (see R v. Turnbull [1976] 3 All ER 54). In order to satisfy itself that the evidence is free from the possibility of mistake or error, the court considers; whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness to the accused at the time of observing the accused.
  2. Both P.W.2 Never Jackline and P.W.3 Ayikoru Irene were familiar with the accused before the date of the incident since they had lived with him in the same homestead for over a month. There was light inside the house emitted by a solar powered light bulb. Both witnesses saw him at a very close proximity. He talked to the two of the; to P.W.2 Never Jackline when he instructed her not to reveal his presence inside the house when her aunt called at the door, and to P.W.3 Ayikoru Irene when he denied having done anything wrong. He was thus identified not only visually but also by voice. I find that the conditions favoured correct identification of the accused and there is no possibility of mistake or error in the evidence of identification. His defence is a mere sham and it is accordingly rejected.

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 24th day of September, 2020                                                      

Stephen Mubiru

Judge.

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.
  5. 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.
  6. 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.

  1. 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 thirty (30) years’ imprisonment.
  2. 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 thirty (30) years’ imprisonment, proposed after taking into account the aggravating factors, now to a term of imprisonment of twenty-six (26) years’ imprisonment.
  3. 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 twenty-six (26) years’ imprisonment arrived at after consideration of the mitigating factors in favour of
    the convict, he having been charged on 15th August, 2019 and has been in custody since then. I hereby take into account and set off one (1) year and one (1) months as the period the accused has already spent on remand. I therefore sentence the accused to twenty-four (24) years and eleven (11) months’ imprisonment, to be served starting today.
  4. 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

StateAttorney: Mr.Okello Richard.

For the accused: Ms. Eyokia Jill Dawa.