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Court of Appeal discusses aggravating factors in a case of defilement

In The Case Of Ederema Tomasi V Uganda…Criminal Appeal No 554 Of 2014.

This case was decided on 25thJuly 2019 in the court of appeal by Hon Justice Cheborion Barishaki, Hon Justice Stephen Musoota and Hon Lady Justice Night Percy Tuhaise.

The background of the case was that the appellant was charged and convicted of aggravated defilement contrary to sections 129 (3), (4) (b) and (c) of the penal code act and sentenced to 25 years imprisonment. The appellant was dissatisfied with the sentence and appealed on grounds that the trial judge erred in law and fact when he failed to take into account the period spent on remand by appellant and that the sentence of 25 years given was harsh and illegal given the obtaining circumstances.

The justices in their decision held that the trial judge ought to examine the mitigating and aggravating factors in passing a sentence. In this case the trial judge had omitted to take into account the mitigating factors and the period spent on remand which made the sentence illegal as it flouts the requirement of article 23(8) of the constitution.

They also held that taking the remand period into account is not a mathematical exercise such as subtracting that period from the sentence but that it must be considered and that consideration must be noted in the judgement.

The mitigating factors were that the appellant was a first time offender, had a dependent child and was remorseful. He had also spent two and a half years on remand. The aggravating factors were that the appellant knew he was HIV positive at the time the offence was committed.