[2024] UGCA 360

# THE REPUBLIC OF UGANDA IN THE COI.]RT OF APPEAL OF UGANDA HOLDEN AT MASINDI CRIMINAL APPEAL NO. 495 OF 2OL7 [CORAM: BUTEERA; DCJ, OBURA & MULYAGONJA, JJA] OMIRAMBE G APPELIANT VERSUS

RESPONDENT

(An appeal against the decision of Rugadya Attvoki I in High Court Criminal Sesston Case No. 0105 of 2012 dated 24'h January 2017 at Hoima High Court)

#### IUDGMENT OF COURT

## Introduction

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The appellant was charged with Rape contrary to sections 123 and 124 of the Penal Code Act. It was alleged that the appellant on the 24'h day of October 2011 at Kyabanati village in Buraru Kyebigambire Sub-county in Hoima District had unlawful sexual intercourse with B. G without her consent.

### Background

It was the prosecution's case that on the 24'h October, ²⁰¹¹ B. G, a married woman with children was sleeping in her house. At about 3:00 am the appellant opened her door and had 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' imprisonment. 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

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At the hearing of the appeal, Mr. Joseph Kyomuhendo a Chief State Attorney represented the respondent while Mr. Edwin Mutaryebwa represented the appellant. Both counsel filed written submissions and asked court to adopt the same in determining the appeal. The prayer was granted and court has considered the written submissions in resolution of the appeal.

## Submissions for the appellant

Counsel submitted that according to the record of the lower court, the State Attorney informed court that the appellant was a first time offender and proposed a sentence of 30 years imprisonment. The appellant informed court that he was a 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 by relying on his age and state of drunkenness at the time of committing the alleged offense in total disregard of the appellant's mitigation. Counsel contended that had the trial Judge considered the appellant's mitigating factors, he would not have sentenced the appellant to 2 5 years imprisonment.

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Counsel referred to Kyalimpa Edward v Uganda, SCCA No. 1O of 1995 where the court held as follows:-

\*fln appropriate sentence is a matter for discretion of the sentencing Judge and that each case presents its own facts upon which a Judge exercises discretion. As an appellate court this court wiII not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial Judge was manifestly excessive so as to amount to injustice."

Counsel cited Kalibobo Jackson v Uganda, CACA No. 45 of 2005 where this court found a sentence of 17 years for a charge

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 imprisonment 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 25 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

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Counsel submitted that in arriving at the sentence of 25 years imprisonment, the trial Judge had a comprehensive consideration of aII the factors before imposing the sentence, which according to him was deserving. On the issue of failure to consider the mitigating factors, counsel referred to Dhewume Abdallah v Uganda, CACA No. 0140 of 2016 where this court noted; "While sentencing the Judge is to be guided by both the mitigating and aggravating factors in making the sentencing decision but they are not binding on the court."

Counsel submitted that although the age of the appellant was fronted as a mitigating factor, it was not binding on the court and failure to consider it did not occasion a miscarriage of justice.

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. OO44/2O14 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 20f g where this court confirmed a sentence of 32 years' imprisonment.

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

Counsel prayed that this court upholds the sentence of 2 5 years' imprisonment and dismiss the appeal.

# Consideration of Court

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This appeal is against sentence only. The appellant in this case faulted the trial Judge for sentencing him to a prison term of 2 ⁵ years, which he considered to be manifestly harsh and excessive arguing that, the mitigating factors had not been considered. As an appellate Court, the law defines when we can interfere with the discretionary power of a sentencing Judge. It is trite that we are not to interfere with a sentence imposed by a trial court merely because we would have imposed a different sentence had we been the trial Court.

We shall only interfere with the sentence imposed by the trial Judge when it is demonstrated to us that the sentence imposed is either illegal, or founded upon a wrong principle of the law, 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. 143 of 2001 and Kawooya Joseph v Uganda, CACA No. 0512 of 201^4).

We have had opportunity to appraise the sentencing notes of the trial Judge. The record is as below:-

#### "Sentence and reasons

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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 STD. As a married man, he ought to have known better. At age 53 years he is mature and even ought to control his drink. He has spent 5 years and 2 months on remand which I have reduced from the period of 30 years and so he shall serve 25 years in prison."(sic)

The appellant and his counsel submitted in their allocutus that the appellant was a first time offender, a family man with ⁶ children, a sole breadwinner, aged 5 3 years and had been on remand for 5 years and 2 months.

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 noted that although the Judge is to be guided by both the mitigating and aggravating factors in making the sentencing decision, they are 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.

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We make reference to the principle laid out in the persuasive authority of S v Vilakazi 2009 1 SACR 552 (SCA), where the Supreme Court of South Africa held that:

"In cases of serious crime, the personal circumstances of the offender, by themselves, urill 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 the instant case, as noted in the trial Judge's sentencing notes above, he clearly laid out the circumstances that led to his conclusion on the sentence he thought was deserving for the appellant. The trial Judge went ahead to consider the period that the appellant had spent on remand and the trial Judge credited it to the appellant.

In Atrarikundira 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 fts discretion by considering meticulously all the mtttgating factors and other presentencing requirements as elucidated in the Constitutions, statutes, Practtce Directors together with general principles of sentencing as guided by case Iaw."

The Judge's sentencing notes gave an explanation of what he considers as justification for the sentence he imposed. He took into consideration the submissions of both the prosecution and the defence in mitigation of sentence. He exercised his discretion judiciously before he sentenced the appellant.

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In their submissions Counsel for the appellant did not point out any illegality of the sentence imposed by the trial Judge. We have read previous decisions of this Court and the Supreme Court in similar Cases to determine whether or not the sentence was so manifestly excessive as to amount to an injustice

In Biguraho Adonia v Uganda, CACA No. OO7 of 2Ol7 this court upheld a sentence of 2 5 years' imprisonment for the offence of rape.

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 2015 the court maintained a sentence of 30 years' imprisonment for the offence of rape.

In Kodet Mariko v Uganda, CACA No. 16 of 2019 this court 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 sentence in this case. It is our finding that the trial Judge sentenced the appellant to 2 5 years after deducting 5 years and 2 months from 30 years. We find that there was an arithmetic error. After deducting 5 years and 2 months from 30 years, the appellant would serve 24 years and 10 months. Apart from the arithmetical error, we find no fault with the decision of the trial Court.

This appeal fails. The appellant will serve twenty four (24) years and ten (10) months from the date of conviction.

We, so order.

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P" Dated at Kampala this .day of .2024

RICFI{RD BUTEER,{ DEPUTY CHIEF JUSTICE

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OBURA JUSTICE OF APPEAL

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IRENE N JUSTICE OF APPPEAL