[2024] UGCA 227

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

# CRIMINAL APPEAL NO. OO39 OF 2016

(Aising out of the Judglment and orders of His Lordship Michael DlLtbu ctt Rukungiri irt HCT- 1 1 -CR-SC-039-2O 1 4)

#### 1. NUWAMANYA LABAN

# 2. MICHAEL AHIMBISIBWE : : : : : : : : : : : : : : : : : : : : : : APPELLANTS

## 3. NTEGYEREIZE HAMADA

VERSUS

10 UGANDA RESPONDENT CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### ¹⁵ JUDGMENT OF COURT

[l]The Appellants were indicted and convicted of the offence of rape contrary to Sections 123 and 124 of the Penai Code Act. The 1"t and lnrt trppgllants were sentenced to 30 yea-rs' imprisonment while the 3.1 Appellant was sentenced to ¹⁷ years' imprisonment.

[2]The Appellants were dissatished with the sentences passed by the tria-l court and filed this appeal against sentence only on the following grounds;

- 1. The learned trial Judge erred in law and lact when he sentenced the 1"t and 2nt Appeilants to a sentence of 30 yea-rs' imprisonment that was harsh and excessive in the circumstances and failed to deduct the period spent on remand. - '.1 2. The learned trial Judge erred in iaw and fact when he sentenced the 3\*l Appellant to a sentence of 77 years'imprisonment that was harsh and excessive in the circr:mstances and failed to deduct the period spent on remand.

## Background

- [3] The facts of the case as accepted by the trial court are as follows; on the 28th November 2Ol2 at Nyambizi Cell, Kiringa Parish Kambuga Sub County in Kanungu District, the victim together with her brother and her two Uncles went to trap grasshoppers at Nyarutojo trading Centre in Kambuga at around 9:30pm. 10 - [4]Upon reaching Nyarutojo trading Centre the victim, her brother and the two uncles decided to go back home and when they reached at Nyambizi Ce'11, they rnet the Appellants who were not known to the victim but known to the victim's Uncies. The Appellants caught the victim by her arm and threatened to beat the rest of the people she had. The Appellants told the victim's brother and uncles to run fast and they (Appellants) remained with the victim. 20 - [5] The Appellants put the victim down, tore her knickers and started having sex forcefully with her one by one, the victim made an alarm but no one responded. After a short while the

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Appellants started to fight arnong themselves and the victim run to a nearby forest.

- [6lWhen the Appellants saw the victim running, they stopped fighting, followed her, grabbed her and lay her down and started having sexual intercourse with her again. At around 3:O0am, the Appellants took the victim to a nearby banana plantation and again had sex with her until the victim became unconscious and stopped making any alarm. The Appellants then took the victim to the 2"d Appellant's house and the 1"t and 3"t Appellants also went to their respective homes. - [7]The brother to the victim together with his uncles went and informed his grandfather who informed the LC 1 chairperson and defence secretary about the disappearance of the victim. A search was mounted the victim was found in the 2n(l Appellant's house. The Appellants were accordingly arrested, charged and convicted of the offence of rape.

# Representation

[8]At the hearing of the Appeal, Ms. Benita Namusisi appeared for the Appellant while Ms. Sherifa Nalwanga, Chief State Attorney appeared for the Respondent. Both parties filed written submissions which they sought leave to adopt as their legal arguments in this appeal and it was granted. At the hearing, the Appellants sought leave under Section L32 lll (b) of the Trial on Indictment Act (TIA) to appeal against sentence only and leave was accordingly granted by this Court.

# Appellants submissions

- [9] Counsel relied on the decision in Ogola S/O Owoura Vs R (1954) 21 EACA 27O for the proposition that in exercising its jurisdiction, an appellate court does not a-lter a sentence on the mere ground that if members of the appellate court had been Lr.ying Lhe Appellant, they might have passed a somewhat different sentence. Counsel arg3red that an appellate court catl only interfere with the discretion exercised by the trial Judge if it is evident that the Judge acted upon a wrong principle or that the sentence is harsh and manifestly excessive in the circumstances of the case. - [10] Counsel relied on Guideline 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practicef Directions 2O13 which calls for courts of Judicature to be consistent with appropriate sentencing levels when dealing with similar offences. - [ 1 1 ] Counsel argued that the 1 7 years' imprisonment given to the 3r(r Appellant was harsh and excessive given that the 3.,r Appellant pleaded guilty and did not waste court's time. Counsel submitted further that the sentence of 30 years' imprisonment given to the 1.t and 2nd Appellants was unfair considering that they were all charged with the same offence and that the victim was actually found in the 2",r Appellant's house and was Ll nco n sc10us.

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[12] Finally, Counsel further submitted that the Appeliant's had spent 3 years on remand, which period was not deducted by the trial judge while sentencing.

# Respondent's submissions

- 5 10 [13] In reply, counsel submitted that the Appeilants were convicted of an offcncc which carries a ma;rimum sentence of death and the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 provides for a starting point of 35 years' imprisonment. Counsel argued that the trial court was careful not to leave out any mitigating and aggravating factors and also did not act on any wrong principle of law. The sentences passed on the Appellants are permissible by law and are within the sentencing range. - [14] Counsel relied on the decision in Karisa Moses Vs Uganda SCCA No. 23 of 2OL6 for the notion that an appropriate sentence is a matter for discretion <l[ the sentencing Judge since each case presents its own facts upon which the Judge exercises discretion. - [15] Counsel submitted that the learned trial Judge was under no obligation to arithmetically deduct the period spent on remand especially considering the fact that the sentences in this case were passed before the decision in Rwabugande Vs Uganda SCCA No. 25 of 2OL4, which does not act retrospectively. Consideration of the Appeal

# [16] Duty of the First Appellate Court

For this Court, as a first appeliate court, to interfere with the sentence of a trial Court it must be shown that any one or more of the lactors below exist: the sentence is illegal, the sentence is harsh or manifestiy 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.

See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2OL4; Kyalimpa Edward Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2OOO; ancl Kiwalabye Bernard Vs Uganda, Supreme Court Crirninal Appeal No. 143 of 2OO1.

[17] Further, the court may not interfere with the sentence imposed by a trial Court simply because it would have imposed ^a different sentence had it been the trial Court. See: Ogalo S/O Owoura Vs Republic [1954] 24 EA CA 27O.

[18] We shall bear in mind the above principles while resolving this appea-l while, at the same time, not losing sight of the general duty of this court, as first appellate court, to re-appraise all the evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10; Fredrick Zaabwe vs. Orient Bank Ltd

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guideline is 35 gears. The conuict has serued 3 years on remand. I sentence him to 17 gears in pison."

l21l 1"t and 2"a Appellants'sentencing order was as follows;

"The conuicts are both treated as Ttrst offenders. Theg prag for the lenience of this court. I haue token into account the part that the first conuict is 30 gears and the second is 23 gears old.

- Theg inform the court that they are breadwinners.

- These Aoung men, ll grieuously gong roped the uictim taho tuas onlg IB years of the time of her attack.

- She was raped bg three men ouer 6 hours' peiod.

- She was beaten and dragged around duing the night before she was pushedunder a bed naked.

- She has bad to bear the extra anguish and daily tonnent of knowing that the child she bore was the result of a gong rape on her.

- This court should send out a deterrent message to those of a like mind. It appears that gang rapes are rampant and should be anbed. - This session alone has had to deal with seueral cases of this nature. - This communitg should be taught to ualue and treasure the modestg of women not to be uiewed as sental objects to use and abuse as one pleases.

Civil Appeal No. 4 of 2OQ6; and Kifamunte Henry vs. Uganda SCU Cr. Appeal No. 10 of L997 the Supreme Court of Uganda.

## Analysis

- 5 [19] The appeal is against sentence only. It is the appellants'claim that the sentence is harsh, excessive and illegal for not having arithmetically deducted the period spent on remand. - [2O] The sentencing order of the learned tria-l Judge with regard to the 3.d Appellant was as follow,s; - "l haue carefullg listened and considered all the aggrauating ancl mitigating factors in this case I haue also taken into account the accused persons allocutus and the rauish of the uictim giuen in his testimony. I haue taken particular note of the circumstances of this case. The uictim was repeatedlg and brutallg raped rauished. The gruesome act was by a gang uhich also beat her uioLently and detained her including pushing her naked under a bed. She had clearlg suffered an extreme trauma us a result and continues to suffer pain to this dag. To make matters worse she become pregnant and does not know the father of this child. The conuict throws himself at the mercy of the court. He has alreadg spent 3 gears in custodg. I haue noted that he pleaded guilty afi.er the uictim had testifi.ed and he prags for lenience. ln the circumstances and taking the remand peiod into account. This offence carries a maximum of death. The starting1 point in the to 20

- ln the circumstances and consideing the period the conuicts houe spent on remand I sentence;-

i) laban Nuwamanga to 30 Aears.

ii) Ahimbisibwe Michael to 3O years."

- 5 [22] Frorn the above excerpts, it appears to us the learned trial Judge duly considered the mitigating and aggravating factors of the case and passed an appropriate sentence of 17 years' imprisonment upon the 3.d Appellant, who pleaded guilty, and 30 years'imprisonment upon the 1"t and 2"d Appellants. - [23] With regard to the period spent on remand, Article 23 (8) of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms: 10 - "Where a person is conuicted and sentenced to a term of impisonment for an offence, any peiod he or she spends irt Iatuful custody in respect of the offence before the completion of his or her trial shaLl be taken inkt account in im osln the term <t 15 impisonment " IEmphasis added] - l2al In the Rwabugande case (supra), the expression "take into account" the remand period was interpreted by the Supreme Court to involve arithmetical decluction thus: 20

"lt is our uiew that the taking into account of the peiod spent on remand bg a court is necessarilg arithmetical. Ihis is because the peiod is known with certaintg and precision; consideration

of the remand peiod should therefore necessailg mean reducing or subtracting that peiod from the final sentence. That peiod spent in latuful custody pior to the tial must be specifi"cally credited to an accused."

- [25] Srrhseqrrently the Srrpreme Corrrt clarified the meaning of the expression "take into account" in the case of Abelle Asuman Vs Uganda, Supreme Court Criminal Appeal No.66 of 2OL6 (delivered on 19th Aprii 2018) thus: - "What is material in lthe Rutabugandel decision is that the period spent in latuful custodg pior to the tictl and sentencing of a conuict must be taken into account and according to the case of Ruabugande that remand peiod shottld be credited to a conuict when he is sentenced to a term of impnsonment. This Court used the u.tords to deduct and in an aithmetical wag as a guide for the sentencing Courts but those metaphors are not deriued from the Constitution.

Where a sertencinq Courl has clearlLt demonstrated that it has tctken iruto accourlt the peiod sperlt o4lemttndto..the credit of the conuict the sentence taould not be tanttr ^ered uith ^b the appeLlate Court onl1.1 because the sentencirg Judqe or . Iustices used d.ifferent words in tlrcir iudqment or missed to state that theu deducted the period spent ort remand. These may be issues of style for tuhich a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in ArticLe 23(8) of the Constitution." [Emphasis added]

- [25] From the above, the guiding question is whether, from the style used by the tria-l Court, it clearly demonstrated that it has taken into the period spent by the appellant on remand. We are of the considered view that the learned trial Judge considered the period spent on remand. - [26] We thus find no reason to fault the learned trial Judge's sentence and as such, dismiss this appeal.

We so order

Delivered and dated this .... 2024. .i< qus day of ^l 10

RICHARD BUTEERA Deputy Chief Justice

F

20 CHRISTOPHER GASHIRABAT(I Justice ofAppeal

V OSCAR J HII{A ²⁵ Justice of Ap al

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