[2024] UGCA 250

## THE REPUBLICOFU DA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

(Corem: Eva K. Luaweta' JA, Oscar Klhlka, JA, Asa Mugenyl' JAI CRIMINAL APPEAL NO. 04 16 of2O15

5 [AppealfromtheJudgementofHtghCourtsittlngatMbararainCriminal Session Case O89 of2013 by Hon. Justice Bashaija K' Andrew delivered on 18th June 20131

## 10 MUHANGUZI HAPPINESS ::::::::::::::::::33:::::::::::::::::::::::3:3::::::::: APPELLANT AND UGANDA ::::::::3::::::3:3::33:::3:133:::::::::::l:::::::::::::::::::::::::::::::::::: RESPONDEIIT

#### JUDGMENT OF THE COURT

#### ¹⁵ 1. INTRODUCTION

TheappellantwaschargedwithaggravateddefilementcontrarytoS.l29(3)& 4(a) of the Penal code Act cap 128. The appellant was indicted, convicted and sentenced on his own plea of guilty to 18 years of imprisonment' On 18th September 201 1 , the appellant at Nyakinombe cell, Ntungamo District performed ^asexual act on one Kembabazi Fausta a girl below the age of 14 years'

# 2. BACKGROUND

²⁵ The brief facts of the case are: on 18th September 2oll at around 5:0o pm, the victim (1 I years) together with other children went to collect firewood. The appellant found them collecting firewood. He had a spear. He chased the children and got hold of the victim by hand. He threatened the victim with the spear and forced her into sexual intercourse. The other children run to the victim's father and reported the accused. The victim's father run to the scene of crime and found the accused having sexual intercourse with the victim. The appellant speared the victim,s father and injured him. The victim's father made an aJarm, which pc. 1 30

prompted people to come to the scene. The appellant was arrested, charged' tried and convicted on his own imprisonment. plea of guilty and sentenced to 18 years of

## ⁵ 3. GROUND OF APPEAL

The learned trial judge erred in law and fact when he imposed a harsh and excessive sentence of 18 years on the appellant who pleaded guilty hence causing miscarriage of Justice.

#### Representatlon

At the hearing on 2'd September 2024, tlrre appellant was represented by Ms' Namusisi Princess Benitah on state brief, while the respondent was represented by Mr. Joseph Kyomuhendo, Chief State Attomey and Amina Akansa' Senior State Attorney.

#### SUBMISSIONS OF PARTIES

# 20 4. APPELLANT'S SI,'BMISSIONS

25 TheappellantsubmittedthatanappellateCourtiSnottointerferewitha sentenceimposedbyatrialcourt,whichexerciseditsdiscretionwhilst sentencing unless the exercise of the discretion was such that the trial court ignoredtoconsideranimportantmatterorcircumstances,whichoughttohave been considered when passing the sentence' He cited Kiutalabge u Uganda (SCCA. 143 of 2OO1) cited in Adiga Adinan u lJganda of Appeal Cr' App' 635 of 2014 &757 of2Ol5.

The appellant contended that whereas S. 2 of the revised Tria-l on Indictment Act Cap 25 gives the high court power to pass any sentence authorized by law Under S.lloftheJudicatureActCap16,thiscourthaspowerandauthoritytogive pc.2 30

.fur.,,\L ( M

an appropriate sentence of its own. The appetlant cited Ahaihtndira Yustine ^u tJganda, SCCA 27of 20l5 which emphasized the consistency principle in cases similar to those previously passed. The appellant submitted that the trial judge did not consider all the mitigating factors. He contended that trial judge was so inclined to the aggravating factors than the mitigating factors. The appellant was a young man in Primary 7. He hoped to continue with his education. He was remorseful and had learnt a lesson. All the mitigating factors were ignored by the Judge. He argued that the judge would have been more lenient while sentencing him.

#### 10

He further cited Katsigozi Januario, u ugandacACA 775 of 2Ol4 which indicated that in cases of aggravated defilement the sentencing range is between 11 to ¹⁵ years where the convict is a first-time offender and there is no exposure of the victim to HIV infection. He also cited Taremwa Wilson u IJganda, CACA 125 of 2013 where the appellant pleaded guilty and was sentenced to 18 years of imprisonment. However, on appeal, this court reduced the sentence to 11 years' ln Katende Atnmad u IJganda, Sc. Cr. App 6 of 2004 the Supreme Court upheld a sentence of lo years of imprisonment for the offence of aggravated defilement, yet the appellant was father to the victim of 9 years. The appellant contended that he was sentenced to 18 years of imprisonment, which sentence is above the sentencing range as per the above cases. He did not expose the HIV virus to the victim. He prayed that the court follows the sentencing range in the above cases and reduce his sentence from 18 years to at least 10 years basing on the fact that the appellant pteaded guilty and he was a young man of 18 years' He submitted that the sentence of 18 years of imprisonment is not only harsh and excessive, but also deprives him the hope of rehabilitation. 15 20 25

The appellant contended that the trialjudge did not deduct the appellant's period of 21 months spent on remand. He prayed that this court exercises its powers under S. 11 of the Judicature Act Cap 16 and reduce the sentence and deducts the remand period of 21 months.

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pc. 3

### 5. RESPONDENT'S SUBMISSION

5 The respondent submitted that the duty of the first appellate court is to have a fresh and extortive scrutiny of the evidence on record and is entitled to draw its own conclusion. It cited Kifamunte Henry u Ugonda sccA 10 of 1997.lt argued that sentencing is at the discretion of the trial judge and an appellate court will only interfere if it is evident that the trial court acted on a wrong principle or overlooked some material fact, or the sentence is manifestly harsh and excessive.

It cited Kiwatabye Bernard u (Jganda sccA r43 of 2001 where it was held that an appropriate sentence is a matter at the discretion of the trial judge' 10

The responded submitted that the sentence of 18 years of imprisonment for aggravated defilement was not harsh and excessive given the circumstances of the case. The respondent submitted that the maximum sentence for aggravated defilement is sentence to death and the starting range is 30 years of imprisonment under the 3'd schedule of the Sentencing Guidelines. The respondent submitted that the appellant grabbed the victim and sexually abused her. The victim was heavily traumatized. The appellant injured the father of the 15

20 victim. He used violence.

The respondent submitted that the supreme court and the court of Appeal have upheld 18 years of imprisonment for aggravated defilement. It cited ourti John ^u {Jganda CACA 237 of 2Ol4 where the appellant unsuccessfully appealed against

25 ^asentence of 20 years of imprisonment for aggravated defilement.ln Kabazi Issa ^utJgonda CACA 268 the appellant unsuccessfully appealed against the sentence of 32 years for aggravated defilement of 2 girls of 4 and 9 years. ln Livingstone sewangana u tJganda 79 of 2006 the court confirmed a sentence of 18 years for aggravated defilement of a girl of 13 years.

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pc.4

# 6. DETERMINATION BY COURT

The appellant was convicted of aggravated defrlement contrary to Sections 129(3) and 4(a) of the Penal Code on his own plea of guilt. On 18th September 2011 he defiled a girl of 11 years. He was sentenced to 18 years of imprisonment on his plea of guilt. The appellant is aggrieved by the sentence of the trial judge.

ln Kiualabge Bernard u Uganda Criminal Appeal 143 of 2O01 the Supreme Court held that it is trite law that the appellant court is not to interfere with the sentence imposed by a trial court which has exercised its discretion unless the discretion is such that it results in the sentence imposed bring manifestly excessive or low as to amount to a miscarriage of justice or where the trial court ignores to consider arr important matter or circumstance which ought to be considered while passing sentence or where the sentence is imposed on wrong 10

principle. 15

We shall be guided by the provisions of Paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 20 ¹³ which provides that; "a court should be guided by the principle of consistency while passing a sentence to a convict". See Aharikundira Yustina u UgandaSCCA 27 of 2015. ln Kibaruma John u uganda CACA No. 225 of 2O1O, the appellant was convicted for the offence of aggravated defilement of a 9-year-old girl on his

own plea of guilty and sentenced to l5 years of imprisonment. On appeal to this Court, his sentence was reduced to 11 years. ln Lukwago Henry u Uganda CACA 0036 of 2010 this court upheld a sentence of 13 years of imprisonment on the appellant for aggravated defilement of a 13-year-old child on a plea of guilty. In Taremua Wilson u uganda CACA 125 of 2013 the appellant was sentenced for aggravated defilement of a 13-year-o1d on his own plea of guilty up to 18 years'

The appellant contended that the trial Judge imposed a harsh and excessive sentence on him. In determining whether the sentence was excessive, we sha.ll pg. 5

imprisonment. On appeal, the sentence was reduced to 10 years and 4 months.

\ ["1. ea<

consider the mitigating and aggravating factors. The aggravating factors include that the crime is one of a serious nature. The appellant was carrying a spear. He injured the father of the victim The mitigating factors are that the appellant pleaded guilty. He was remorseful. He was a young man and a first offender. In our view, the trial Judge in his sentencing ruling appeared to have given much attention to the aggravating factors but less reasons to the mitigating factors. The trial Judge also omitted to consider the principle of consistency'

After considering the aggravating and mitigating factors, the principle of consistency and decided cases, we find the sentence harsh and excessive in the circumstances. we set it aside and invoke S. 11 of the Judicature Act, which grants this court the same powers as the tria.l Court to impose a sentence to the appellant. We shall accordingly sentence the appellant to l6 years' imprisonment. we are enjoined by Article 23(8) of the constitution to consider period of 1 year and 9 months spent on remand. The appellant will serve a period of 14 years and 3 months from the date of conviction' 10 15

Dated at Mbarara tnis . O.ll!{. aay . 2024

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Justlce of Appeal

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