Court name
High Court of Uganda
Case number
Criminal Case 16 of 2020
Judgment date
30 September 2020
Title

Uganda v Jarua Adriko (Criminal Case 16 of 2020) [2020] UGHC 181 (30 September 2020);

Cite this case
[2020] UGHC 181
Short summary:

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.— Defence of insanity — section 11 of The Penal Code Act — where it appears that, at the time of the act or omission giving rise to the offence alleged, the accused was labouring under a defect of reason owing to a disease of mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for the act—The question whether, owing to a defect of reason due to the disease of the mind, the accused was not responsible for his act is a question of fact to be determined by the court. Where the court finds insanity is made out the decision is that he is not guilty due to insanity.

Criminal Procedure: — Alternative defences — It is the duty of the trial court to deal with all the alternative defences, if any, if they emerge from all the evidence as fit for consideration notwithstanding that they are not put forward or raised by the defence, for every man on trial for a capital offence is entitled to have the issue of lack of, or lower degree of culpability, considered by court if there is evidence on which such a verdict can be given, to deprive him of this constitutes a grave miscarriage of justice.

Coram
Mubiru, J

 

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

UGANDA

Reportable Criminal Sessions Case No. 016 of 2020 In the matter between

 

PROSECUTOR

And

JURUAADRIKO alias AGO                                                                                   ACCUSED

Heard: 28 September, 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.— Defence of insanity — section 11 of The Penal Code Act — where it appears that, at the time of the act or omission giving rise to the offence alleged, the accused was labouring under a defect of reason owing to a disease of mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for the act—The question whether, owing to a defect of reason due to the disease of the mind, the accused was not responsible for his act is a question of fact to be determined by the court. Where the court finds insanity is made out the decision is that he is not guilty due to insanity.

Criminal Procedure: — Alternative defences — It is the duty of the trial court to deal with all the alternative defences, if any, if they emerge from all the evidence as fit for consideration notwithstanding that they are not put forward or raised by the defence, for every man on trial for a capital offence is entitled to have the issue of lack of, or lower degree of culpability, considered by court if there is evidence on which such a verdict can be given, to deprive him of this constitutes a grave miscarriage of justice.

JUDGMENT

Introduction:

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 11th day of August, 2019 at Ngoli village, in Arua District, performed an unlawful sexual act with Ofuzu Mildred, a girl below the age of 14 years.

The prosecution evidence.

The prosecution case is that during the early evening hours of 11th August, 2019 the victim’s mother P.W.3 Amiko Irene left the victim P.W.4 Mildred Ofezu and her siblings behind with her ailing grandfather. She went to sell vegetables at the market from where she returned after about one hour. Upon opening the door to her grandfather’s house where she had left the children, she found the accused half naked on top of the victim, performing an act of sexual intercourse. The accused jumped off the girl, quickly pulled his pair of shorts up and dashed out of the house. P.W.3 Amiko Irene attempted to grab him but failed. She entered the house, cheeked the private parts of the victim and found blood stains and semen. The accused was later arrested and the victim taken for medical examination the following day. The accused opted to remain silent in his defence.

The Burden and standard of proof.

The burden rests on the prosecution to prove 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 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

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). In this case the victim, P.W.4 Mildred Ofezu stated that she did not know her age. P.W.3 Amiko Irene, the victim’s mother testified that the victim was born on 25th November, 2013. This is corroborated by the admitted evidence of P.W.1 Mr. Draku Denis a Medical Clinical Officer of Logiri Health Centre III which is to the effect that on 12th August, 2019 he examined the victim Ofuzu Mildred and found her to be aged about 6 years old. 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 P.W.4 Mildred Ofezu was a girl under the age of 14 years by 11th August, 2019.

  1. That a sexual act was performed on the victim.

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.4 Mildred Ofezu testified that they had slept with the late Baba in the house and as they slept Jurua came and lay beside her. He lowered her panty. She felt pain in the lower abdomen. P.W.3 Amiko Irene testified that upon her return from the market at around 7.00 pm, she found the accused on top of the victim. He was performing an act of sexual intercourse with her. The girl’s panties had been lowered. The accused had lowered his trousers to the knee level. After the accused had fled from the scene, she checked the girl and found blood stains in her private parts. There were signs of semen. It was whitish thick, and slippery. This is corroborated by the admitted evidence of P.W.1 Mr. Draku Denis a Medical Clinical Officer of Logiri Health Centre III which shows that on 12th August, 2019 he examined the victim Ofuzu Mildred and found bruises and blood stains in the private parts which were probably caused by forceful sexual intercourse and she looked so fearful at the time of the examination (exhibit P. Ex.1). On basis of that evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that P.W.4 Mildred Ofezu 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.

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. The accused opted to remain silent in his defence. However P.W.2 Dr.Madrama Charles testified that on 18th August, 2019 (six days after the incident) when he examined the accused he found him to be aged about 23 years old, he was epileptic and was mentally retarded, to a degree of mental sub-normality. His reasoning could not tally with his age. He reasoned like a 15-year-old. During an epileptic fit the person is not conscious. Afterwards the person begins from a totally different point. It is possible to perform am act of sexual intercourse in that state.

It is the duty of the trial court to deal with all the alternative defences, if any, if they emerge from all the evidence as fit for consideration notwithstanding that they are not put forward or raised by the defence, for every man on trial for a capital offence is entitled to have the issue of lack of, or lower degree of culpability, considered by court if there is evidence on which such a verdict can be given, to deprive him of this constitutes a grave miscarriage of justice (see Mancini v. D.P.P. [1942] AC 1 and Didasi Kebengi v. Uganda [1978] HCB 216).

The testimony of P.W.2 Dr. Madrama Charles regarding the mental capacity of the accused raised the possibility of the defence of insanity. Under section 11 of The Penal Code Act where it appears that, at the time of the act or omission giving rise to the offence alleged, the accused was labouring under a defect of reason owing to a disease of mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for the act. The question whether, owing to a defect of reason due to the disease of the mind, the accused was not responsible for his act is a question of fact to be determined by the court. Where the court finds insanity is made out the decision is that he is not guilty due to insanity.

“Disease of mind” is used in the ordinary sense of the medical faculties of reason, memory and understanding. If the effect of the disease is to impair these faculties so severely as to impair the person from knowing the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment is itself permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act and either; (a) it gave rise to a defect of reason, or (b) that he was not able to realise that what he was doing was wrong.

Temporary insanity is claimed as a defence when the issue arises as to whether or not, due to a disease of the mind or defect, the accused was mentally stable at the time of the offence. If by illness, a person is made non compos mentis he or she is excused in case of criminal responsibility, which he or she acts under the influence of this disorder. It is to the effect that at the time the crime was committed, the accused was incapable of knowing the nature of his/her alleged criminal act, or that it was wrong. To successfully establish the defence, it must be shown that the accused was suffering from a mental defect at the time the offence and that this defect affected his ability to differentiate between right and wrong. It requires evidence showing that the prosecution is unable to prove that the accused was not insane at the time of the offence. The burden thus lies on the prosecution to disprove it. A person whose reasoning capacity is not damaged to the required extent and is able to know the after-effects of his act cannot rely on the defence.

To refute that defence, the prosecution relied on the testimony of the victim P.W.4 Mildred Ofezu who testified that when they went to sleep with Baba “Wenreco” (a bulb connected to dry cells) was on. Okechi had put on the light.

He had gone to his home. He left the light on. When Jurua entered the light was on. When he left the house the light was still on. She did not see the Jurua who did the act though. P.W.3 Amiko Irene testified that when the accused saw her open the door, he stood up. He pulled his trousers up and ran. She tried to block the accused at the entrance but he overpowered her and fled. It was dark outside but inside the house there was a light. There was torch build connected to dry cells. It was bright but not so bright. The light in the house was a bit dim. It was sufficient for one to see but it was not all that bright. She was able to see the accused with that light. The following day they searched for the accused and found him on the way to his step-mother in a different Parish, Kyeba Parish, about five miles away. She had known the accused for three years. His home is close to hers at a distance of about 50 - 60 meters. She would meet him at least once a week but sometimes he goes to his grandmother in Congo.

Where prosecution is based wholly or substantially on the correctness of the evidence of an identifying witness, 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.

In the instant case, although the accused dashed from the scene soon after he was found in the act, both P.W.3 Amiko Irene and the victim P.W.4 Mildred Ofezu had known him well before as a neighbour. The available light inside the house, although not so bright, was bright enough to aid the identification and recognition of a person they had known before. P.W.4 Mildred Ofezu testified that the accused had entered the house and lay beside her for quite some time and only began the sexual act after her grandfather had fallen asleep, which is consisted with the content of the charge and caution statement made by the accused.

P.W.5 D/AIP Emudu Patrick adduced the Charge and caution statement of the accused (exhibit P. Ex.2). The court will ordinarily only act on a confession if it is corroborated by independent evidence, but corroboration is not mandatory since court may act on a confession alone if fully satisfied, after considering all the material points and surrounding circumstances, that a confession cannot but be true (see Festo Androa Asenwa and another v. Uganda, S. C. Appeal No. 1 of 1988 and Tuwamoi v. Uganda [1967] E.A 84). The confession by the accused is corroborated by P.W.3 who testified that Amiko Gamdezio Ojeda is her grandfather. When she returned all the other children had fallen asleep. They were 3 years, 6 years and 8 years respectively. They were all sleeping on the same bed. Her grandfather was inside the house but sick. He was very ill and he died a month later.

The fact that when the accused saw P.W.3 Amiko Irene open the door, he stood up, pulled his trousers up and fled from the scene only to be arrested the following day while on the way to his step-mother in a different Parish, Kyeba Parish, about five miles away, is a clear sign that he not only knew the nature of the act he had committed but he also knew that it was wrong. He may be epileptic and mentally retarded but not to the extent that avails him the defence of insanity. The prosecution evidence has not only placed him at the scene of crime as the perpetrator of the offence but has also disproved his possible defence.

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 Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act.

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

Stephen Mubiru

Judge.

SENTENCE AND REASONS FOR SENTENCE

According to section 129 (3), the maximum penalty for the offence of Aggravated Defilement c/s 129 (3) and (4) (a) 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 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.

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 regard 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.

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 six-year-old child, in the safety of her grandfather’s home. 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-five (35) years’ imprisonment.

The seriousness of this offence is mitigated by the factors stated in mitigation by his which are; he is a first offender at the age of 20 years and mentally retarded. The severity of the sentence he deserves has been tempered by those mitigating factors and is reduced from the period of thirty-five (35) years’ imprisonment, proposed after taking into account the aggravating factors, now to a term of imprisonment of fifteen (15) 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 7th January, 2020 and has been in custody since then. I hereby take into account and set off nine (9) months as the period the accused has already spent on remand. I therefore sentence the accused to eighteen (13) years and three (11) month’s 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

Resident Judge, Gulu

Appearances

State Attorney : Mr. Okello Richard.

For the Accused : Mr. Bundu Richard.