Court name
High Court of Uganda
Case number
Criminal Case 19 of 2020
Judgment date
30 September 2020
Title

Uganda v Candia (Criminal Case 19 of 2020) [2020] UGHC 180 (30 September 2020);

Cite this case
[2020] UGHC 180
Headnote and holding:

Criminal Law — Rape C/s 123 and 124 of The Penal Code Act — The prosecution must prove that there was carnal knowledge of a woman, without her consent and that it is the accused person who had carnal knowledge of the victim — Carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ, where sexual organ means a penis. Proof of penetration is normally established by the victim’s evidence, medical evidence and any other cogent evidence — Proof of lack of consent is normally established by the victim’s evidence, medical evidence and any other cogent evidence.

Evidence: — A deaf-mute is competent to be a witness — section 117 of The Evidence Act — All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses — A deaf- mute witness — A deaf-mute may not be able to hear and speak but his or her other senses, such the sense of sight, remain functional and allow him or her to make observations about his or her environment and experiences. Thus, a deaf-mute is competent to be a witness so long as she has the faculty to make observations and she can make those observations known to others.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Criminal Sessions Case No. 019 of 2020

UGANDA

In the matter between

 

PROSECUTOR

And

CANDIA ANTHONY                                                                                               ACCUSED

Heard: 29September, 2020.

Delivered: 30September, 2020.

Criminal Law — Rape C/s 123 and 124 of The Penal Code Act — The prosecution must prove that there was carnal knowledge of a woman, without her consent and that it is the accused person who had carnal knowledge of the victim — Carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ, where sexual organ means a penis. Proof of penetration is normally established by the victim’s evidence, medical evidence and any other cogent evidence — Proof of lack of consent is normally established by the victim’s evidence, medical evidence and any other cogent evidence.

Evidence: — A deaf-mute is competent to be a witness — section 117 of The Evidence Act — All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses — A deaf- mute witness — A deaf-mute may not be able to hear and speak but his or her other senses, such the sense of sight, remain functional and allow him or her to make observations about his or her environment and experiences. Thus, a deaf-mute is competent to be a witness so long as she has the faculty to make observations and she can make those observations known to others.

JUDGMENT

Introduction:

The accused in this case is indicted with one count of Rape C/s 123 and 124 of The Penal Code Act. It is alleged that the accused on the 16th day of August, 2019 at Ajinga village, in Arua District had unlawful carnal knowledge of Munduru Winnie without her consent.

The prosecution case briefly is that the victim, P.W.5 Munduru Winnie, is a deaf and dumb nineteen-year-old mute who at the material time lived with her uncle, P.W.3 Mawa Cirilo. On 16th August, 2019 she went to him in a distressed condition and using gestures indicated that she had been raped by the accused. P.W.3 notified the local council leadership who convened a meeting at which the victim repeated the accusation. The accused was arrested and handed over to the police.

Accused’s evidence.

In his defence the accused denied having committed the offence. He stated that he is in prison over a land dispute. Before his arrest, he overheard some people say that this time he should go and put on yellow in the prison, so that he can vacate the land and they take over this land. P.W.3 Mawa Cirilo said that he was taking land from them because their parents had died. The complainant had been using a portion of that land. The victim accused him falsely but he did not know why. He did not know why he was arrested. On 15th August, 2019 he went to the Trading Centre with Imbapi and another person. People were celebrating while others were dancing. Around 10.00 pm P.W.5 Munduru Winnie came to the bar and informed him that his niece Brenda had been taken by the boy. She wanted him to intervene but when he showed reluctance to do so, P.W.5 Munduru Winnie threw one of her slippers at him. He picked up the sandal and using gestures told her she should not undermine him to be a person who does not have brain like a child. He was with Imbapi the whole night seated in that bar because it was raining outside. He spent the night with him and in the morning they parted. The following day he went to P.W.3 Mawa Cirilo the uncle to P.W.5 Munduru Winnie to inform him about what P.W.5 Munduru Winnie had done throwing her slipper at him. He told him he should discipline P.W.5 Munduru Winnie. He did not know where P.W.5 Munduru Winnie had spent the night. Later a rumour began that he had defiled her, and he was arrested.

D.W.2 Anguti Richard testified that on the evening of 15th August, 2019 at around

  1. - 8.00 pm he went home and then to the Trading Centre where at around
  1. - 10.00 pm he sat with the accused in a bar. He was with him until morning when they parted. He met the accused at the bar at around 9.30 am. He fell asleep on his lap at around 2.00 pm. He woke up at around 6.30 pm to 7.00 am, and found he was still lying on his lap. It is the accused who woke him up. During the time he was with the accused, the accused went out for a short call where he took about five to ten minutes. He did not see the accused talk to any girls or women. He did not see him in the company of any girl or woman. The accused never told him that he had a land dispute with anyone. The following day, he heard a rumour where people talked about him and the accused alleging that that while he was with the accused, the accused had had sex with Oduru at an abandoned house yet Oduru was not at the bar that night.

The Burden and standard of proof.

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 the offence of Rape, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

  1. Carnal knowledge of a woman.
  2. Lack of consent of the victim.
  3. That it is the accused who had carnal knowledge of the victim.

The rule under section 117 of The Evidence Act is that all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. A deaf-mute may not be able to hear and speak but his or her other senses, such the sense of sight, remain functional and allow him or her to make observations about his or her environment and experiences. Thus, a deaf-mute is competent to be a witness so long as she has the faculty to make observations and she can make those observations known to others. A speech and hearing impaired person need not be prevented from being presented as a witness in court merely on account of his physical disability. Under section 118 of The Evidence Act, a witness who is unable to speak may give his or her evidence in any other manner in which he or she can make it intelligible, as by writing or by signs; but the writing must be written and the signs made in open court. The evidence so given is deemed to be oral evidence. The victim in this case, P.W.5 Munduni Winnie, has never been schooled in the formal, conventional sign language and therefore could not be assisted by a sign language interpreter. She gave her testimony by gestures with the aid of anatomical dolls.

  1. Carnal knowledge

Carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ, where sexual organ means a penis. Proof of penetration is normally established by the victim’s evidence, medical evidence and any other cogent evidence. The victim in this case Munduru Winnie testified as P.W.5 and by using signs, gestures and anatomical dolls, she placed the male, lying face down, on top of the female, lying on its back (which is interpreted as a sexual act). P.W.3 Mawa Cirilo testified that when she reported to him, she demonstrated by the gesture of lying down (touching her head and tilting it) and from that he understood it meant sexual intercourse.

P.W.4 Adiru Betty testified that at the local council meeting, the victim made gestures indicating that the accused lay on top of her. She knelt down and went through the motion of unzipping and lying down as she continued to cry. The gesture of kneeling down and showing the sign of a zip being lowered made them conclude there was sexual intercourse. P.W.1 Dr. Draku Denis Medical Clinical Officer of Logiri health Centre III on 17th August, 2019 examined the victim P.W.5 Munduni Winnie. There were no wounds or bruises in the vulva. She had scratch marks on the face, neck, shoulders, and easily cried when questioned. There was as scratch mark on the left breast. P.W.4 Adiru Betty testified that they were told they should not have let the victim take a bath before the medical examination.

I found the testimony of P.W.5 Munduni Winnie simple and credible and she had no apparent ill motive to give a false testimony. That she was the victim of a sexual assault is corroborated by the presence of scratch marks on her breasts. In open court, with the aid of the anatomical dolls, she was able to show the relative position of things and persons as she perceived them, like an unimpaired person would. By using the dolls, signs and gestures, she was able to recount clearly what happened to her. She was corroborated by P.W.4 Adiru Betty who testified that at the local council meeting, the victim made gestures indicating that the accused lay on top of her and unzipped his pair of trousers. This coupled with her laying the male doll on top of the female in court left no doubt that the assault involved an act of sexual intercourse. That the medical examination did not yield any of the usual tell-tale signs of a sexual act is attributed to the fact that she had taken a bath before that examination. To constitute a sexual act, it is not necessary to prove that there was deep penetration. The slightest penetration is sufficient. On basis of all that evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that P.W.5 Munduru Winnie was subjected to an act of sexual intercourse.

  1. Lack of consent of the victim.

The next ingredient to be proved is lack of consent to the sexual act or consent procured by intimidation, force or trickery. Proof of lack of consent is normally established by the victim’s evidence, medical evidence and any other cogent evidence. The victim P.W.5 Munduru Winnie while in court pointed to the accused and made the gesture of kicking and dragging (interpreted as identification of the accused in relation to the act). P.W.3 Mawa Cirilo testified that when she reported to him, she used gestures to show him that she was beaten scratched on her face and raped. He noticed that she had been scratched badly. P.W.4 Adiru Betty Odu testified that the victim used gestures to show them that she had been scratched all over her body and indeed they saw marks of scratching. She also made gestures of being thrown down and dragged away. I am satisfied that the prosecution has proved beyond reasonable doubt that P.W.5 Munduru Winnie was subjected to an act of sexual intercourse without her consent.

  1. That it is the accused who performed the sexual act on the victim.

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 set up the defence of alibi stating that he spent the entire night at a bar with D.W.2 Anguti Richard. The accused does not have to prove that alibi. The burden is on the prosecution to place the accused at the scene of the crime, and sufficiently connect him to the commission of the offence (see Uganda v. Sabuni Dusman [1981] HCB 7; Uganda v. Kayemba Francis [1983] HCB 25\ Kagunda Fred v. Uganda S.C. Criminal Appeal No. 14 of 1998', Karekona Stephen v. Uganda, S.C. Criminal Appeal No. 46 of 1999 and Bogere Moses and Kamba v. Uganda, S.C. Criminal Appeal No. 1 of 1997). Where prosecution evidence places the accused squarely at the scene of crime at the material time, the alibi is destroyed (see Uganda v. Katusabe [1988-90] HCB 59).

To refute that defence, the prosecution relies on the direct evidence of the victim P.W.5 Munduru Winnie. Under her cross-examination, a male volunteer had the male doll placed against him, she shook her head. When the male doll was placed against the accused, she nodded her head in approval. P.W.3 Mawa Cirilo testified that when the victim reported to him, using gestures she indicated to him that she had been raped by the accused. From her gestures he deduced that she was referring to the accused because he is a close neighbour. She was pointing at him repeatedly. She pointed him out to him when he came to his home. His wife had brewed alcohol and the accused had come to his home to drink alcohol when the victim identified him to the witness. P.W.4 Adiru Betty testified that when the issue was being investigated by the local leaders, Oduru (P.W.5 Munduru Winnie) used gestures to demonstrate what happened; she touched her chin to indicate a reference to a man. She pointed to the home of the accused. She stopped the demonstration upon seeing the accused approach with the youth who had called him, and began to cry. I found the testimony of P.W.5 Munduni Winnie on this aspect simple and credible and she had no apparent ill motive to falsely implicate the accused. The alleged grudge over land has nothing to do with her.

A material unexplained inconsistency between the version of the accused and that of his witness D.W.2 Anguti Richard weakened the defence in light of the prosecution case. It was the testimony of D.W.2 Anguti Richard that he was with the accused from 9.30 pm until day break and that at no point at all during that time did he see the accused talk to any woman, let alone see P.W.5 Munduni Winnie. To the contrary, the accused gave a detailed encounter with P.W.5 Munduni Winnie sometime around 10.00 pm that night. This obvious lie in the defence case provides further corroboration of the prosecution case. In agreement with the joint opinion of the assessors, I find that the prosecution has disproved the defence of alibi and proved beyond reasonable doubt that it is the accused that had forceful sexual intercourse with the victim.

Order:

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 Rape C/s 123 and 124 of the Penal Code Act.

Dated at Arua this 30th day of September, 2020                     ....................................................

Stephen Mubiru

Judge.

30th September, 2020.

SENTENCE AND REASONS FOR SENTENCE

According to section 124 of the Penal Code Act, the maximum penalty for the offence of Rape c/s 123 and 124 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.

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.

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.

When imposing a custodial sentence on a person convicted of the offence of Aggravated Rape C/s 123 and 124 of the Penal Code Act, the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 stipulate under Item 2 of Part I (under Sentencing ranges - Sentencing range in capital offences), 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.

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 this regard, I have considered the case of Kalibobo Jackson v. Uganda C.A. Cr. Appeal No. 45 of 2001 where the court of appeal in its judgment of 5th December 2001 considered a sentence of 17 years’ imprisonment manifestly excessive in respect of a 25-year-old convict found guilty of raping a 70-year-old widow and reduced the sentence from 17 years to 7 years’ imprisonment. In the case of Mubogi Twairu Siraj v. Uganda C.A. Cr. Appeal No.20 of 2006, in its judgment of 3rd December 2014, the court of appeal imposed a 17-year term of imprisonment for a 27-year-old convict for the offence of rape, who was a first offender and had spent one year on remand. In another case, Naturinda Tamson v. Uganda C.A. Cr. Appeal No. 13 of 2011, in its judgment of 3rd February 2015, the Court of Appeal upheld a sentence of 18 years’ imprisonment for a 29-year-old appellant who was convicted of the offence rape committed during the course of a robbery. In Otema v. Uganda, C.A. Cr. Appeal No. 155 of 2008 where the court of appeal in its judgment of 15f/) June 2015, set aside a sentence of 13 years’ imprisonment and imposed one of 7 years’ imprisonment for a 36-year-old convict of the offence of rape who had spent seven years on remand. Lastly, Uganda v. Olupot Francis H.C. Cr. S.C. No. 066 of 2008 where in a judgment of 21st April 2011, a sentence of 2 years’ imprisonment was imposed in respect of a convict for the offence of rape, who was a first offender and had been on remand for six years.

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 deaf and dumb mute, young woman. The act caused her grave distress and trauma which was still visible as she testified in court. A combination of these factors should result in a starting point of twenty-five (25) years’ imprisonment.

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 39 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-five (25) years’ imprisonment, proposed after taking into account the aggravating factors, now to a term of imprisonment of nineteen (19) years’ imprisonment.

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-four (24) years’ imprisonment arrived at after consideration of the mitigating factors in favour of the convict, he having been charged on 22nd August, 2019 and has been in custody since then. I hereby take into account and set off one (1) year and one (1) month as the period the accused has already spent on remand. I therefore sentence the accused to seventeen (17) years and eleven (11) 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 Atttorney: Ms. Harriet Adubango.

For the Accused: Ms. Eyokia Gill Dawa.