[2024] UGCA 103

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASINDI CRIMINAT APPEAL NO. 495 OF ZOLT [CORAM: BUTEERA; DCJ, OBURA & MULYAGONJA, JJA] O]VIIRAMBE GILBER APPELTANT

VERSUS

UG RESPONDENT

(An appeal against the decision of Rugady,A,\nyolci J in Higlt Courf Criminal Session Case No.0l05 of 201 2 dated Z4,h January 2017 at Hoima High Court)

#### TUDGMENT OF COURT

### Introduction

Thc appcllant was chargccl with l{apc contrarry to sections 123 and 124 of the Penal Code Act. It wars allcgccl that the zrppellant on thc '24'h d',.ry <lf octobcr 201 I at Kyerbanati village in Buraru Kycbigambire Sub-county in F[oima District had unlawful sexual intcrconrsc with B. G with<lut hcr c<lnscnt.

#### Background

It wars thc prosecution's cirsc that on thc 24'h october, z0rl I]. G, a marriccl womirn with childrcn wus slccping in her housc. At arbout .l:00 irm thc appcllant opcnccl hcr cloor ancl hacl


forceful sexual intercourse with her. Gloria flashed a torch at him and made an alarm, which attracted her brother in law. He entered the house and found the appellant in the act. The appellant was arrested and charged with the offence of rape. He was convicted and sentenced to 2 5 years', lmprisonment.

Dissatisfied with the sentence, the appellant has sought leave of this court to appeal against sentence only on the following ground: -

That the sentence of 25 years' imprisonment that the trial Judge meted out on the appellant is manifestly harsh and excessive on the account of the obtaining circumstances.

#### Representation

At the hcaring of the appcal, Mr. Joscph Kyomuhenclo a chief Statc Attorncy rcprescntcd thc rcspondcnt whilc Mr. Eclwin Mutarycbwa rcprcscntecl thc appcllant. Both counscl filecl written submissions and askcd court to aclopt thc samc in dctcrmining thc appcal. Thc praycr wrrs grantecl and cclurt has considcrcd thc writtcn submissi<lns in rcs<llution <lf thc appeal.

# Submissions for the appellant

Counscl submittcd that arccorcling to thc record of thc lower court, thc Statc Attorncy informcd court that the appcllant was ir f'irst timc offcnclcr ernd proposccl er scntcncc of 30 years imprisonmcnt. Thc appcllant informccl court that hc was al first


time offender and had been on remand for 5 years and 2 months and he proposed a sentence of B years. The trial Judge only considered the aggravating factors and upheld the sentence proposed by the State Attorney and only deducted the period spent on remand.

It was counsel's argument that the trial Judge aggravated the appellant's sentence hy relying on his age ancl state of drunkenness at the time of committing the alleged offense in total disregard of the appellant's mitigation. Counsel contencled that had thc rrial Judge considered the appellant,s mitigating factors, he woulcl not have sentenced the appellant to 2 s years imprisonment.

Counsel rcfcrrcd to Kyalimpa Edward v Uganda, SCCA No. l0 of 1995 wherc the court hcld as follows:-

"An appropriartc scntcnce is a mattcr frlr discrction <lf the scntcncing Judgc ancl that carch cirsc prcscnts its own facts upon which a Judgc cxcrciscs discrction. As an arppcllatc court this court will not normally interfere with thc discretion of the scntencing.iudgc unlcss thc scntcncc is iltcgal or unless court is sartisficd that thc scntcncc imposcct by thc triarl Juclgc was marnifcstly cxccssivc s() as tcl almount to injusticc."

counscl citccl Kalibobo Jackson v uganda, CACA No. 4s of 20os whcrc this cor-rrt founcl a scntcncc of lz ycars for a charge

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of rape to be out of range. The court reduced the sentence to ⁷ years imprisonment.

He also referenced Naturinda Tamson v Uganda, CACA No. 13 of 2011 where this court found that the sentence of 18 years irrtplisulrnenl in respect of the offence of rape was manifestly harsh and excessive and the sentence was reduced to 10 years. Counsel submitted that the sentence of 2 5 years meted out to the appellant was manifestly harsh and excessive and implored this court to reduce it to a sentence of B years' imprisonment.

## Submissions for the respondent

Counsel submitted that in arriving at the sentence of 2 5 years imprisonment, the trial Juclgc had a comprehensive consideration of all the factors bcforc imposing the scntcnce, which according to him was descrving. on the issue of failurc to considcr thc mitigating factors, counsel referred to Dhewume Abdallah v Uganda, CACA No. 0140 of 2016 wherc this court noted; "While scntcncing thc Jr-rdgc is to bc guided by both the mitigating and aggrervating factors in making thc sentcncing decision but thcy are not binding on the court."

Counscl submittccl that arlthough thc age of the appcllant was frontcd as a mitigating factor, iI wars not binding on thc court and failurc to consiclcr it clicl not <lccarsi<ln a miscarriagc of

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Counsel submitted that the sentence of 25 years meted out to the appellant was neither harsh nor illegal. He referred to Anguyo George v Uganda, CACA No. 0044/2014 where this court confirmed a sentence of 40 years imprisonment where the appellant raped the victim in front of her two sisters.

He also cited Kodet Mariko v Uganda, CACA No. 0016 of 2019 where this court confirmed a sentence of 32 years' impri sonment.

Counsel submitted that the appellant in the instant case raped a married woman in her husband's house, which could spoil her marriage and clestroy her family.

Counsel praycd that this court upholds the sentence of 25 years' imprisonment and dismiss the appeal.

## Consideration of Court

scntcncc hacl wc bccn thc trial C<lurt.

This appcal is argainst scntcncc <lnly. Thc appcllant in this case farultccl thc trial Judgc for scntcncing him to er pris<ln tcrm of ²⁵ yealrs, which hc c<lnsidcrccl to bc marnifcstly harsh and excessive arguing that, thc mitigating farctrlrs harcl not bccn considered. As an appellatc court, thc Iarw clefincs whcn wc can interfere with thc cliscrcti<lnary powcr of a scntcncing Judge. It is trite that wc arrc not to intcrfcrc with er scntcncc lmposcd by a trial court mcrcly bccausc wc woulcl havc imposcd a different

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we shall only interfere with the sentence imposed by the trial Judge when it is demonstrated to us that the sentence imposect is either illegal, or founded upon a wrong principle of the iaw, or a result of the trial Court's failure to consider a material factor, or that the sentence is harsh or manifestly excessive in the circumstances of the case. (see Kiwalabye Benard v Uganda, CACA No. L43 of 2001 and Kawooya Joseph v Uganda, CACA No, 0512 of 2OL4).

we have hacl opportunity to appraise the sentencing notes of the trial Judge. The record is as bclow:-

## "Sentence and reasons

Accused convicted of rape. This was against a married woman. Such acts demean women; they spoil marriages and are...to civil society. There is need to save clear marriage to protect the family unit as the foundation of our society. Not clear whether or not there was srD. As a marriecl man, he ought to have known better. At age s 3 years he is mature and even ought to control his drink. FIe has spent s years and ² months on remand which I have reduced from the periocl of 30 years and so he shall serve 25 years in prison."(sic)

Thc appcllarnt and his counscl sr-rbmittccl in thcir all<lcutus that thc appcllant wirs a first timc offcnclcr, a farmily man with ⁶ childrcn, er solc brcaclwinncr, agccl 5.] ycars ancl hacl bccn on rcmerncl for 5 ycars anc[ 2 months.

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The appellant in the instant case alleged that the trial Judge never considered his mitigating factors before sentencing him. In Dhewume Abdallah v Uganda (supra) this court notecl that although the Judge is to be guidecl by both the mitigating and aggravating factors in nrakirrg Lhe sentencing decision, the1, n1g not binding on the court.

As we have already noted above, sentencing is a matter of discretion of the sentencing Judge and each case is handled according to its peculiar circumstances.

we make reference to thc principle Iaid out in the persuasive authority of s v vilakazi 2009 1 SACR 5s2 (scA), where rhe Supremc Court of South Africa helcl that:

"In cases of serious crime, the personal circumstances of the offender, by themselves, will necessarily recede into the background. once it becomes clear that the crime is deserving of a substantial period of imprisonment, the questions whether the accused is married or single, whether he has ² children or 3 ... are largely immaterial to what that period should be."

In thc instant casc, as n<ltcd in thc trial Juclgc's scntencing notes abovc, hc clcarrly laicl out thc circumstanccs that lccl to his conclusion on thc scntcncc hc thourght was clcscrving for the appcllant. Thc trial Jr-rclgc wcnt erhcacl to consiclcr thc pcriod that

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the appellant had spent on remand and the trial Judge creditecl it to the appellant.

In Aharikundira Yustina vs Uganda, Supreme court Criminal Appeal No. 27 of 2015, it was held:-

"Before a convict can be sentenced, the trial court is obliged to exercise its discretion by considering meticulously all the mitigating factors and other presentencing requirements as elucidated in the Constitutions, statutes, Practice Directors together with general principles of sentencing as guided by case Iaw."

The Judge's sentencing notes gavc an cxplanation of what he considers as justification for the sentence he imposecl. He took into consideration the submissions of both the prosecution ancl thc defence in mitigation of scntencc. He exercised his discrction .judiciously beforc he scntenccd the appellant.

In thcir submissions Counscl f<lr thc appcllant clid not point out any illcgality of rhc sentcncc imposccl by thc trial Juclge.

wc havc rcacl prcvious dccisions of this Court and the Supremc Court in similar Cascs to determinc whcthcr or not the sentence was so marnifcstly cxccssivc as to amount to an injustice

In Biguraho Adonia v uganda, CACA No. 007 of zolT this court r-rphclcl ar scntcncc of 25 ycars'impris<lnmcnt for the offencc of rapc

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In criminal Appeal No. 44 of 2014, Anguyo George versus uganda. This Court confirmed a sentence of 40 years that had been imposed by the lower Court on a charge of rape.

In Mubangizi Alex v Uganda, scCA No. 7 of 20ls the court maintained a sentence of 30 years' irnprisonment for the offence of rape.

In Kodet Mariko v uganda, GACA No. lG of z0rg this courl reduced a sentence of 60 years to 32 years'imprisonment where the appellant was charged with rape.

we have considered that the maximum sentence for the offence of rape according to section 124 of the Penal Code Act is death. The trial Judge did not impose the maximum scntence in this case. It is our finding that thc trial Judge scntenccd the appellant to 25 ycars after deducting 5 ycars and 2 months from 30 years. wc find that thcre was an arithmctic error. After dcducting 5 years and 2 months from 30 years, the appcllant woulcl scrvc 24 ycars and l0 months. Apart from the arithmctical crror, wc find no fault with the decision of the trial Court.

This appcal fails. Thc appcllant will scrvc twcnty fourr (24) ycars arnd tcn (10) months fr<lm thc datc of conviction.

Wc, so orclcr.

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Dated at Kampala this....................................

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RICHARD BUTEERA DEPUTY CHIEF JUSTICE

**HELLEN OBURA** JUSTICE OF APPEAL

IRENE MULYAGON

JUSTICE OF APPPEAL