[2025] UGCA 177

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT MASINDI

[Coram; F. Zeija, DCJ, C. Gashirabake and K. K. Katunguka, JJAJ

# CRIMINAL APPEAL NO. 0141 OF 2O2I

### BETWEEN

# CHANDIGA ROBERT. ..... APPELLANT

### AND

UGA}IDA ........ RESPONDENT

(Arisingfrom the decision of the High Court of Uganda at Masindi (H. Wolayo J.) in Criminal Case No. 063/2017 delivered on the 29th day of October 2020)

### JUDGMENT OF THE COURT

### Introduction

- 1] The appellant was indicted and convicted of the offence of aggravated defilement contrary to sections 129 (3) and (a)(a) & (b) and286 of the Penal Code Act. It was alleged that in November 2016, atBubwe Village, Walukuba Parish, Buliisa District, the appellant performed a sexual act on MD, a girl aged 9 years. After a full trial, he was convicted and sentenced to 2l years' imprisonment after deducting the time spent on remand. The appellant was aggrieved with the decision of the trial Court, hence this appeal on two grounds; - 1. The learned trial Judge erred in law andfoct when she ignored some mitigating factors in favour of the appellant hence causing a miscoruiage of iustice to the appellant. - 2. The sentence of 21 years' imprisonment was too harsh and excessive in the circumstances, given the remorsefulness of the appellant.

llPage C{o5

### Representation

2] The Appellant was represented by Mr. Hamza Sekidde on State brief. The Respondent was represented by Ms. Nakafeero Fatinah, Chief State Attomey. Both counsel filed written submissions which were adopted as their legal arguments.

### Submissions by counsel for the Appellant

### Ground one

The learned trial Judge erred in law and fact when she ignored some mitigating factors in favour of the appellant hence causing a miscarriage of justice to the appellant.

3] Counsel submitted that the mitigating factors as provided for under Rule ³⁶ (a)-(g) of the Constitution (Sentencing Guidelines) for Courts of Judicature (Practice) Directions, 2013, were not considered by the trial Judge. It was observed by Counsel that the trial Judge did not consider all the mitigating factors raised by the appellant as required in Magala Ramathan vs Uganda, Supreme Court Criminal Appeal No. I of 2014, where court held that failure by court to give an accused person a chance to say something in mitigation of sentence is a huge oversight that can occasion miscarriage of justice. It was argued that in this instant case, the trial Judge failed to consider the fact that the appellant was a first-time offender despite this having expressly been stated by his counsel at the trial. Counsel cited Babua vs Uganda, Court of Appeal, Criminal Appeal No. 303 of 2010, where ^a sentence of life imprisonment was substituted with one of 18 years' imprisonment on appeal by reason of, among others, failure by the trial Judge to take into account that the appellant was a first-time offender. Counsel

2!Page

prayed that this court draws guidance from Magala Ramathan vs Uganda, Supreme Court Criminal Appeal No. I of 2014, where the Court stated that when a Judicial officer is alive to what the accused submiued in mitigation, the same must be evident on record.

4] Counsel submitted that had the trial Judge taken into account all the mitigating factors before it, the sentence would have been less than what was handed down to the appellant.

### Ground Two.

The sentence of 21 years' imprisonment was too harsh and excessive in the circumstances, given the remorsefulness of the appellant.

- 5] Counsel argued that the sentence of 2l years' imprisonment was excessive, taking into account the circumstances under which the sentence was passed by the court and also considering similar sentences handed down in similar cases committed in similar circumstances. It was argued that the trial court was required to follow the principle of consistency as elucidated in paragraph 6 of the Sentencing Guidelines. - 6] In support of his averments, counsel cited Ninsiima Gilbert vs Uganda, Court of Appeal Criminal Appeal No. 180 of 2010, where this court substituted the sentence of 30 years' imprisonment with that of 15 years. In Candia Akim vs Uganda, Criminal Appeal No. 181 of 2019, this Court upheld a sentence of 17 years' imprisonment for aggravated defilement of a victim by her stepfather. In Apiku Ensi vs Uganda Court of Appeal, criminal Appeal No. 751 of 2015, this court was guided by the previous authorities and found that the sentence of 25 years' imprisonment was out of range with sentences in similar offences. In Birungi Moses vs Uganda,

3!Page

c-fldo

+-

Court of Appeal, Criminal Appeal No. 177 of 2014, a sentence of 30 years was reduced to 12 years' imprisonment.

- 7] Counsel submitted that, according to Aharikundira Yustina vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015, the sentencing court is bound by the principle of consistency. - 8] It was contended for the appellant that the trial Judge ignored the requirement for following precedent and upholding consistency in respect of custodial sentences imposed against the convict, leading to a miscarriage of justice. Counsel invited this court to interfere with the sentence handed down to the appellant.

### Submissions by counsel for the respondent

- 9] Counsel raised a preliminary objection alleging that the appeal offends section 132 (lxb) of the Trial on Indictment Act, which requires an appellant to seek leave of court before appealing against sentence only. Counsel prayed that this appeal should be struck out. - l0] Counsel argued grounds 1 and 2 concurrently - ^Il] Counsel submitted on the role ofthis court as the first appellate court as stated in Kiwalabye Bernard vs Uganda, Supreme Court, No. 14 of 2001, where it was held that;

"the appellate court is not to interfere with the sentence imposed by a trial court which has exercised its discretion, unless the excise of the discretion or is such thot it results in the sentence being imposed to be manifestly excessive or so low as to omount to a miscaruiage ofjustice or where a trial court ignores to consider an importqnt matter or circumstances which ought to be considered while passing the sentence

4!Page

fun +

or where the sentence imposed is wrong in principle." This was the same position in Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995.

12] Counsel submitted that a clear look at the record of appeal indicates that the appellant prayed for leniency because before his arrest, he was looking after his late brother's children and that his wife had left home after his arrest.

13] Counsel cited Batalingaya vs Uganda, Court of Appeal, Criminal Appeal No. 167 of 2009, where this court held tha!

"We noted that in his allocutus, the appellant stated that he was a father of two children whose mother died while he was in prison and that further imprisonment would deny the children parental care. The learned trial Judge did not seem to have taken the abovefactor into account in mitigation. However, we do not think that having a family and children is a mitigating factor. In Nelson vs Republic(supra). In reference to the above, it was stated os follows:

"The second matter argued by way of mitigation is that the appellant is married and has three small children. This argument so ofien pressed is curiously illogical, suggesting as it does that the decree of criminality attached to a breach of law is in some way lesser if the perpetrator is married and lesser still if he is afather.

A more realistic approach would seem to be that o mqn who is married and ^afather should, for that very reoson, give some additional thought to his position and that of his wife and children before permitting himself to become embroiled with criminal law. "

We agree and adopt the reasoning in the above case, although the judgment is of the High Court of Kenya. We find that the learned trial Judge did not eru when she did not consider the.fact that he had children to look after."

l4l Counsel submitted that the failure to consider the appellant's antecedents was not fatal and the trial Judge was not under any legal obligation

5lPage CW

&

to specifically consider it as a mitigating factor and counsel prayed that this ground fails.

- 15] Regarding whether the sentence was harsh or excessive, counsel submitted that the aggravating factors as presented at the trial court outweighed the mitigating factors. She argued that the appellant was the neighbour of the victim, the victim was only 9 years old, the appellant was 35 years old, the victim suffered injuries and was introduced to sex at such an early age. - 161 Counsel contended that the physical and psychological effects of the heinous acts of the appellant on the victim are irreparable and the victim shall live with them for the rest of her life. Counsel prayed that this Court upholds the sentence of 21 years' imprisonment. - 17) It was contended that sentencing is a discretion of the sentencing Judge. Counsel cited Sekitoleko Yudah & others vs Uganda, Supreme Court, Criminal Appeal No 33 of 2014. - 18] Counsel submitted that this court should consider the fact that the appellant was convicted of an offence that carries a maximum sentence of death under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) directions, 2013. It was submitted that according to the third schedule, the starting point for defilement cases is 35 years and the sentencing range is between 30 to death after considering the aggravating factors. - l9] In support of his submissions, counsel cited Bonyo Abdul vs Uganda, SCCA No. 07 of 2011, where the court confirmed life imprisonment for aggravated defilement. In Bachwa Benon vs Uganda, Court of Appeal Criminal Appeal No. 869 of 2014, this court confirmed a sentence of life imprisonment for aggravated defilement. And in Kaserebanyi James vs

SlPage

c4\dfi V

Uganda, SCCA No. 10 of 2014, the court confirmed the sentence of life imprisonment.

20) Counsel submitted that in view of the above authorities and light of the aggravattne factors, this court should dismiss the appeal and uphold the sentence of the lower court.

# Consideration of the Court Role of the First Appellate Court

- 2ll Under Rule 30(1) of the Judicature (Court of Appeals) Directions, 2005, the duty of this court, as the first Appellate Court, is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997. - 22) We shall handle both grounds concurrently, since both grounds are concemed with the sentence handed down by the trial Judge. - 231 For this court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that; the sentence is illegal, manifestly harsh or excessive, there has been failure to exercise discretion, there was failure to take into account a material factor and an error in principle was made. In Kyalimpa Edward Vs. Uganda, Criminal Appeal No.10 of 1995, the Supreme Court referred to R Vs Haviland (1983) 5 Cr. App R(S) 109 and held as follows;

"An appropriate sentence is a matter for the discretion of the sentencing Judge. Each case presents its own facts upon which the judge exercises his discretion. It is the practice that an appellate court, this court not normally interfere with the discretion of the sentencing Judge unless the sentence is illegalandunlesstlecourt

7!Page M

\*-

is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice."

24) We note that the arguments for the appellant are premised on two fronts; failure to take into consideration all the mitigating factors presented before the court and secondly, that the sentence was manifestly harsh and excesslve.

2s) The following are the sentencing proceedings;

"State;

Defilement is a grave offence that attracts a maximum penalty of death. The victim was aged 9 years old and he took advantage of her. She was traumatized and might suffer lifetime fficts. I prayfor a deterrent sentence.

#### Counsel Omara:

The convict is afirst-time offender and is aged 44 years. He has been on remand for three yeors and eleven months.

Accused: I prayfor leniency. Before my orrest, I looked afier my late brother's children. My rfe left the home.

Court: case adjournedfor sentence on 29.11.2020 at 9:00 a.m. and the accused person is remanded till then.

Court: Sentence.

Ct: The conduct of the convict in luring a girl child to his house assisted by another man, the premeditation that went with it, having taught the girl to ride a bicycle earlier, the deliberate targeting of the girl who like so many others are targets of sexual violence by grown men are aggravatingfactors. Another aggravatingfactor, the trauma inflicted on the girl, was evident from her tearful testimony. That the convict is a young man of 44 years is a mitigatingfactor, as he has the potential to reform. The sentencing guidelines give 35 yeors as the storting point for aggravated defilement. Taking into account the age of the corwict, the appropriate sentence is 25 years.

8lPage

+-

As the convict has been on remond since December 2016, he is sentenced to 2 I years' imprisonment. "

70) It is evident that the learned trial Judge gave clear reasons for arriving at the sentence he imposed on the appellant. She considered the age of the convict as a young person with a potential to reform. Having taken into account the age of the appellant she found that the sentence of 25 years was appropriate. To us, Counsel for the appellant is asking us to reconsider what the trial court has already considered and pass a lesser sentence than the one passed by the trial Court, merely asking us to say that we could have passed a different sentence if we had been the sentencing Court. But it is now firmly established by several authorities that an appellate court will not interfere with the sentence trial court merely on the ground that if the members of the appellate Court had been the trial Court, they would have passed a different sentence, See: Ogalo s/o Owoura vs R (1954) EACA 270. We are unpersuaded to ignore the said principle in this case.

- 7l) The second ground concerned the fact that the sentence was manifestly harsh and excessive. For a sentence to be considered manifestly harsh and excessive, it must be evident that it is way out of the permissible range. See Aharikundira Yustina vs Uganda [2018] UGSC 49.|n the Third Schedule to the Constitution (Sentencing Guidelines for Courts Judicature) (Practice) Directions, 2013, the sentencing range for aggravated defilement is from 30 years' imprisonment to the death penalty, which is the maximum penalty upon consideration of the mitigating and aggravating factors. - 72) We are funher guided by the principle of consistency, as provided for under paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (practice) Directio ns,2013. It has to be noted that the principle of consistency does not rob the court oi itr duty to exercise its discretion in ^a

9lPage ^t

matter before it. But rather, it guides the court as it exercises its discretion to reach a just decision depending on the circumstances of each case. We note that this court in Mugerwa Paul Vs. Uganda [20151 UGCA 49, sentenced the appellant to 26 years and 6 months' imprisonment. In Kikomeko Issa Vs. Uganda 120231 UGCA 214, this court upheld a sentence of 22 years' imprisonment. We therefore find the sentence handed down by the sentencing Judge was not manifestly harsh and excessive.

### Decision.

t

- l. The appeal fails. - 2. The appellant will continue serving his sentence.

### We so Order

,k-Dated and delivered this . o day or.m\*Y. .202s FLAVIAN (Phd) DEPUTY CHIEF JUSTICE \ ^F CHRI ST OPHER C,{STiTNABAKE JUSTICE OF APPEAL KETRAH KITARIISIBWA KATUNGUKA JUSTICE OF APPEAL

l0 lPage