Court name
High Court of Uganda
Case number
Criminal Case 168 of 2020
Judgment date
30 September 2020
Title

Uganda v Adinani Fahamu (Criminal Case 168 of 2020) [2020] UGHC 182 (30 September 2020);

Cite this case
[2020] UGHC 182
Short summary:

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

Coram
Mubiru, J

 

 

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

Reportable

Criminal Sessions Case No. 0168 of 2020

UGANDA

In the matter between

 

PROSECUTOR

And

ACCUSED

ADINANI FAHAMU

 

Heard: 28September, 2020.

Delivered: 30September, 2020.

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

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 3rd day of January, 2020 at village 20, Area 01, Bidibidi Refugee Settlement in Yumbe District, performed an unlawful sexual act with Tayibu alias Thaibo Betty, a girl below the age of 14 years.

The prosecution evidence.

The prosecution case briefly is that the victim’s parents were immediate neighbours, resident in a refugee camp. The mother of the accused, Tabu Mary, kept some of her valuable personal belongings in a house ordinarily occupied by the accused and his seven-year-old niece, Nahia. The accused was to be away for two days. Tabu Mary requested the victim’s mother P.W.2 Sarah Poni, to permit the twelve-year victim, P.W.3 Taibo Betty, to spend the two nights in the accused’s house with Nahia so as to give her company and provide protection for the property. On the second night, the accused suddenly returned at around 10.00 pm. P.W.2 Sarah Poni served him with supper since his mother Tabu Mary had not prepared food that day. She went back to bed. Soon thereafter P.W.3 Taibo Betty came crying and running to her door. She then told her parents that she had just been defiled by the accused. On being confronted with that accusation, the accused denied it. A report was made to the local authorities and later to the police whereupon the accused was arrested and the victim was medically examined.

Accused’s evidence.

In his defence the accused, denied the offence. He stated that during the night he had told the victim that he wanted to talk with her. He told the girl that he wanted her as his lover. He wanted to be in love with her. His intention was to bring her to his home, if only she had accepted to go home and be his wife. He was planning to take her as his wife, in a year’s time. She said if he behaving like that she would go to her mother. He told her to wait until morning. She insisted that she was going home and she got out saying that she was going to report to her mother that I was disturbing her. When confronted by the parents of the girl he denied but he was arrested and detained.

The Burden and standard of proof.

In this case, the prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift to the accused person and he can only be convicted on the strength of the prosecution case and not because of weaknesses in his defence, (see Ssekitoleko v. Uganda [1967] EA 531). By his plea of not guilty, the accused put in issue each and every essential ingredient of the offence with which he is charged and the prosecution has the onus to prove each of the ingredients beyond reasonable doubt. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

Ingredients of the offence

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

  1. The victim was below 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 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, P.W.3 Taibo Betty testified that she is 12 years old. Her mother P.W.2 Sarah testified that the victim is twelve years old although she could not recall when she was born. She was sure the victim had not made 15 years and that she should be 13 years as of now. Her father P.W.4 Onzima Ashraf testified that the victim is 12 years old now. She was born in May, 2007 but the documents relating to her birth had been lost in South Sudan.

This is corroborated by P.W.5 Dr. Ben Obwoch Oringiga who testified that she examined P.W.3 Taibo Betty on 3rd January, 2020. The complaint was that she had been sexually assaulted by someone older at the home. He found that she was 12 years old. The mother told him she was bom in 2008. He examined her dentition and she had 28 teeth and that meant she was between 12-17 years. The breast was at turner three. This meant that she was between 11.6 - 12 years of age. He examined the pubic hair and she was at turner three and it meant she was between 11.6-12 years of age. She told him she had not started her menstruation. On basis of all that he concluded that she was 12 years old (exhibits P. Ex.1 and P. Ex.3). 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.3 Tayibu alias Thaibo Betty was a girl under the age of 14 years by 3rd January, 2020.

  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 The victim P.W.3 Taibo Betty testified that on the second night of sleeping over in the accused’s house, the accused arrived, entered the house carried her and put her on his bed. He opened her legs and she wanted to cry.

He opened her legs and fixed his thing in hers. It was in her part of women. He used his part of men.

P.W.2 Sarah Poni testified that she had just served the accused with supper and was almost falling asleep when the victim, Taibo Betty, came to her crying. She told him that she had not seen the accused arrive but that by the time she awoke she found the accused had removed her panties, and fixed his penis in her vagina. After saying that, she began to cry again. That he had closed her mouth, stopped her from crying and told her not to tell anyone. That he would give her shs. 20,000/= and also buy for her clothes. Before they went to the police she checked the victim’s private parts because she wanted to confirm what she had said. She found there was a whitish substance mixed with blood in-between her legs. The whitish substance was semen from the accused since the girl had never had a substance similar to that on her body before. P.W.5 Dr. Ben Obwoch Oringiga examined her genital region and found that lower part of the vagina near the anus was soiled with seminal fluid. There was no swelling but the vaginal orifice was hyperaemic which usually is visible within 24 hours. There was no pus. There was no equipment for collecting specimen. The probable cause was due to friction which could be due to penetration (exhibits P. Ex.2 and 3).

In his defence as D.W.1 the accused, Adinani Fahamu stated that he only proposed a love affair with the victim and it stopped at that. On account of the prosecution evidence that was consistent and not weakened by cross- examination, I find that the encounter with the victim that night went beyond a mere proposal. I therefore reject the version presented by the accused. The interest he expressed toward the victim was of a sexual nature, yet he was the only male in the house that night. I am satisfied that the prosecution has proved beyond reasonable doubt that P.W.3 Tayibu alias Thaibo Betty 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. In his defence, the accused placed himself at the scene of crime and admitted having been engaged in conversation with the victim that upset the victim prompting her to exit the house during the night. He only denied having performed an act of sexual intercourse. Considering the fact that from the time the accused returned home at 10.00 pm, up to the time victim dashed out of the house crying, the victim was in the company of the accused only as the male person in her proximity, there is no possibility of mistaken identification.

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.

30th September, 2020.

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 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.

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 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-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 20 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 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 (18) years and three (3) 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

Session Judge

Appearances

State Attorney : Mr. Okello Richard.

For the accused: Mr. Bundu Richard.