[2021] UGCA 80

## THE REPUBLIC OF UGANDA.

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CRIMINAL APPEALS NOS 144, 133, & 454 OF 2012

*(Coram: Egonda-Ntende, Bamugemereire, Madrama, JJA)*

- 1. SASAZI JOSHUA - 2. WAJJA AMOS - 3. SENYONJO VINCENT} ....................................

## **VERSUS**

UGANDA} ....................................

(Appeal from the decision of the High Court at Luweero in Criminal Session Case No 89 of 2012 at before Justice Rugadya Atwoki delivered on 2^nd May, $15$ $2012)$

## JUDGMENT OF COURT

The appellants together with one, Matovu were indicted of the offence of rape contrary to section 123 and 124 and aggravated robbery contrary to sections 285 and 286 (1) & (2) of the Penal Code Act, cap 120 laws of Uganda. 20 They were tried and convicted as charged and sentenced to 25 years' imprisonment for the offence of rape and 18 years' imprisonment for the offence of aggravated robbery, which sentences are to run concurrently. The facts on which the conviction was based in that the appellants on $3^rd$ June, 2010 at Mulungiomu Village, Nakasongola district, attacked one $25$ Senkula Godfrey and Nakakembo Juliet, the victims. They had unlawful sexual intercourse with Nakakembo Juliet and robbed the victims of 2 mattresses, spray pump, two Nokia phones, one Samsung phone, a radio, exercise books, a Gomesi, bed sheets, pair of shoes and cash of Uganda shillings 174,000/= and immediately before, at or immediately after used 30 deadly weapons including cutlasses and knives on the victims. The matter was reported to the police and police dogs were used to track the suspects.

$\overline{5}$

An identification parade was conducted at the police station and the $\mathsf{S}$ appellants were identified by the victims.

Upon conviction and sentence, the appellants were dissatisfied with the decision of the High Court and appealed against conviction and sentence on the following grounds:

- $1.$ The learned trial judge failed to evaluate the evidence on record in $10$ respect of identification of the appellants thereby arriving at wrong and unjust conclusions occasioning a miscarriage of justice upon the appellants. - $2.$ The learned trial judge erred in law and fact when she passed a $15$ sentence of 25 years and 12 years' imprisonment upon the appellants, which is illegal, harsh and excessive thereby occasioning a miscarriage of justice. - At the hearing of the appeal the appellants were represented by learned counsel Mr. Kumbuga Richard on state brief while the respondent was $20$ represented by learned counsel Ms. Kizza Anne, Chief State Attorney. The court was addressed in written submissions.

Ground 1

The appellant's counsel submitted that the question was whether the learned trial judge did not properly evaluate the evidence thereby arriving $25$ at a wrong decision. He submitted that as a 1st appellate court, the appellants are entitled to obtain from the appellate court its own decision on issues of fact as well as of law (see Pandya v R (1957) EA 336, Ruwala v R (1957) EA 570, Kifamunte Henry v Uganda; Criminal Appeal No 10 of 1997 and Bogere Moses & another v Uganda; Criminal Appeal No 1 of 1997). $30$

The prosecution led 5 witnesses which; Mr. Senkula Godfrey (PW1), Nakakembo Juliet (PW4), Nabwire Stella (PW2), Nakajja Rose (PW3) and Makeera Moses (PW5). The appellants counsel submitted that the identification evidence that was relied on by the trial judge was the evidence

$\mathsf{Z}$

of PW1 and PW4 who testified as to how the identified the assailants on the $\overline{5}$ fateful night. He submitted that this identification cannot be said to be without error. None of the appellants were known to the said witnesses before the alleged robbery and rape. Further PW3 testified that the assailants had torches which they flushed in their faces most notably in circumstances that the victims were not able to identify the assailants. The $10$ other evidence is that of a dog handler from the Canine Unit in company of a sniffer dog which discovered the home of the 1^st appellant leading to his arrest (PW2). PW1 3 is the officer who conducted the identification parade. While PW 5 is the medical Dr who examined the victims and the injuries sustained by PW4. 15

PW3 further testified in court that the assailants demanded that the victim's cover their faces such that they did not recognise their assailants. She was tied up because she was crying in the first place and then through the process when she was being raped, she was struggling until she was overpowered. When the assailants tied them up, they were tied with their $20$ faces facing downwards. PW 1 testified that the assailants were 4 in No and there is one he did not identify yet in his testimony he told the court that when PW3 was being raped, he was watching each and everything and that all 4 accused persons were present.

- The appellant's counsel submitted that the learned trial judge was supposed $25$ to take cognizance of the fact that the assault occurred at night and the amount of light that enabled the victims to identify the assailants, the length of time the assailants spent while committing the offences, and all other circumstances prevailing at the time. He relied on Bogere Moses versus Uganda; Supreme Court Criminal Appeal No 1 of 1997 which cited with $30$ - approval Abdallah Nabulele & another versus Uganda; Supreme Court Criminal Appeal of 1978, [1979] HCB 77 for the proposition that where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence - disputes, the judge should warn himself or herself and the assessors of the 35 special need for caution before convicting the accused on the basis of the

- correctness of the identification. A mistaken witness can be a convincing $\mathsf{S}$ witness and even a No of such witnesses can be mistaken. The evidence should be examined closely in light of the circumstances in which the identification was made. This included the duration of time, the distance, the light, the familiarity of the witness with the accused. - Counsel invited this court to note that the assault took place between the $10$ hours of 2 AM and 4 AM when it was extremely dark and whereas there were torches which were used in the process, those torches were never flashed in the appellants faces but were directed towards the victims. PW1 and PW4 testified about a lantern lamp that was used to provide light at some point. The lamp was not exhibited and the prosecution did not explain $15$ why.

Counsel further contended that none of the assailants were known to the victims at the time of the assault. Further, PW1 was tied facing down and was not able to identify any of the assailants. PW4 was scared and timid throughout the assault and she cried before she was tied up and later she was raped when she was extremely struggling which is the reason she sustained all the injuries. This is inconsistent with circumstances for proper identification. Counsel contended that the learned trial judge ought to have found that there were not favourable conditions for identification in arriving at the conclusion and ought to have acquitted the appellants. In the circumstances counsel submitted that the learned trial judge did not fully address himself to the issue of proper identification of the appellants and

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$25$

Counsel further submitted that the prosecution evidence was riddled with a lot of contradictions that were never explained away and which were $30$ ignored by the trial judge.

wrongly convicted them occasioning a miscarriage of justice.

The appellant's counsel contended that the contradictions were the following. PW1 testified that the assailants took 2 mattresses out of his house and the PW4 testified that only one mattress was taken. Secondly, PW1 testified that it is the 2nd appellant he had earlier on offered a lift so he

- identified him immediately but in cross examination he stated that it is $\mathsf{S}$ actually the 3rd appellant that he had offered a lift. PW1 testified in cross examination that he had made a statement at the police stating that he had not identified any of his attackers but retracted it later and said he disowned that statement and a fresh one had been written. - The learned trial judge never requested for the original statement but only $10$ validated the testimony of PW1 against the police twisting his evidence. The same police had already arrested 3 of the accused persons. PW1 testified that the police dog arrived at around midday yet PW2 the dog handler said the police dog arrived at 8 AM. - Further the appellants counsel submitted that PW4 testified that they made $15$ an alarm and people gathered from 4 AM. He contended that this means that the doc evidence was unreliable to the extent that the scene of crime had been tampered with. On the other hand, PW2 the dog handler to the contrary told the court that the scene of crime had been properly sealed off - and preserved. Further the medical evidence of PW3, the medical Dr was $20$ inconsistent with allegations of rape and showed that there was no proof of forceful penetration. Counsel submitted that in light of the fact that the victim narrated how she struggled with the assailants and the forceful sexual intercourse, this was something that the learned trial judge chose - to sidestep. He submitted that there were grave contradictions that the trial $25$ judge never addressed her mind to thereby arriving at a wrong conclusion occasioning a miscarriage of justice. Counsel further relied on Candiga Swadick v Uganda; Court of Appeal Criminal Appeal No 23 of 2012 for the proposition that major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are $30$ satisfactorily explained away. Minor contradictions will only lead to rejection of the evidence if they point to deliberate untruthfulness on the part of the witness (see Alfred Tajar v Uganda EACA Criminal Appeal No 167 of 1969, Twinomugisha Alex and 2 others versus Uganda; criminal appeal No 35 of 2002 (SC) and Tinkamalirwe v Uganda; Criminal Appeal No 27 of 1989 35 - (Supreme Court).

Counsel submitted that the inconsistencies and contradictions were so $\overline{5}$ grave and only pointed to falsehoods on the part of the prosecution witnesses and a conviction was arrived at without considering these contradictions should not stand.

In reply and on the 1^st ground of appeal, the respondents counsel submitted that on the aspect of identification, the respondent is guided by the $10$ principles laid out in Abdallah Nabulere and others versus Uganda (1979) HCB 79. According to the evidence on the record of appeal, the offences were committed in the middle of the night with identifying witnesses who testified on behalf of the prosecution. PW1 stated that soon after hearing a loud bang at the back door, it flew open and four men who he later came to $15$ identify as the appellants started tying PW1 and his wife PW4 threatening to kill them if they made noise. The judgment shows that the appellants after forcefully entering the house stayed in the house for close to 2 more hours. During all this time, the appellants tied up PW1 and PW4 plus the children while they beat him up and took turns to rape PW4. They vandalised the $20$ motorcycle of PW1 and stole spare parts of the same, ate food which was in the house before they came out with many other household items. Counsel submitted that there was sufficient time for the witnesses to correctly identify the appellants.

In terms of distance, the respondent's counsel submitted that PW1 and his $25$ spouse were seated on the same bed. That is when they started tying up both him and his wife. He was seated on the bed when they started ravishing his wife. The 2^nd appellant took turns with one Matovu Diza to rape when the victim was in close proximity and the other appellants were firmly holding her to the ground. She was later tied up by the same appellants and 30 thereafter sat down in the one-roomed house and ate the food that remained. There was close proximity.

In terms of the lighting, though the attack happened in the middle of the night, the appellants entered the house with torches shining brightly and in the course of the attack, the 3^rd appellant lit 3 matchsticks and lantern which 35 gave a very good source of light to enable proper identification. The lantern

$\mathsf{G}$

- remained on when they ravished the wife of PW1, ate food and robbed them $\overline{5}$ of their household properties. The room was bright and it was painted in white. The hurricane lamp was on and one of the torches was down on the floor which enabled PW 1 to see all the appellants. - In terms of familiarity of the witnesses with the accused, both victims testified that they had not known the appellants prior to the attack that night $10$ save for PW1 who testified that he identified one of the attackers as one he had seen someplace before but did not exactly place him. PW1 was able to lead police to arrest all of the attackers. PW4 was called to Nakasongola police station where she managed to identify the appellants. The learned trial judge found that the evidence credible. $15$

On the question of contradictions, the learned trial judge acknowledged the contradictions and inconsistencies and went ahead to hold that the court found them to be minor as they did not go to the root of the case and were therefore not intended to deceive the court. In the premises the respondents counsel submitted that the court properly evaluated the evidence pertaining to identification hence placing the appellants at the scene of the crime and ground one of the appeal ought to fail.

Ground 2

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The learned trial judge erred in law and fact when he passed a sentence of 25 and 18 years' imprisonment upon the appellants, which is illegal, harsh $25$ and excessive thereby occasioning a miscarriage of justice.

The appellant's counsel submitted that the 1^st appellant was 18 years old, the $2^{\mbox{\tiny{nd}}}$ appellant was 20 years old and the $3^{\mbox{\tiny{rd}}}$ appellant was of the apparent age of 28 years.

The appellants counsel submitted that it is unclear whether the learned trial 30 judge took into account the ages of the appellant before sentence. He invited the court to consider the decision of this court in Pte Kusemererwa and another versus Uganda; Court of Appeal Criminal Appeal No 83 of 2010 and the decision in Kizito Senkula versus Uganda; Supreme Court Criminal

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Appeal No 24 of 2001 where sentence of 20 years' imprisonment was $\overline{5}$ substituted with a sentence of 13 years' imprisonment. In the circumstances the appellants counsel submitted that the sentences passed on the appellants were harsh and excessive in the circumstances.

In reply the respondents counsel submitted that an appellate court is not to interfere with a sentence imposed by a trial court which has exercised its $10$ discretion, unless the exercise of the discretion resulted in the sentences imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores an important matter or circumstances which ought to be considered when passing sentence or where the sentence imposed is wrong in principle (see Kyalimpa Edward $v$ 15 Uganda; Supreme Court Criminal Appeal No 10 of 1995, Abaasa Johnson and another; Court of Appeal Criminal Appeal No 33 of 2010).

The respondent's counsel supported the reasons given by the learned trial judge in arriving at the sentence in which he considered the aggravating circumstances of rape and aggravated robbery committed in the most $20$ heinous manner. Raping a wife in the presence of her family which included a husband and children in a single room.

On the question of aggravated robbery, the learned trial judge found that they robbed hard earned household acquired properties and money. The 3^rd appellant was a repeat offender who had previously been convicted of the $25$ same offence and sentenced to one year and 8 months. The 1^st and 2^nd appellants were sentenced to 18 years' imprisonment because they were 1^st offenders. In the premises, the sentences were neither harsh no manifestly excessive but appropriate in the circumstances. Further the learned trial judge took into account the period the appellants had spent on remand $30$ which was nearly 2 years. The sentence passed on the appellants was passed on the $2^{\mbox{\tiny{nd}}}$ of May 2012 before the decision in $\textbf{Rwabugande Moses}$ versus Uganda; SCCA 0 25/2014.

**Resolution of the appeal**

We have carefully considered the two grounds of appeal, the submissions $\mathsf{S}$ of counsel and the authorities cited.

This is a first appeal from the decision of the High Court in the exercise of its original jurisdiction and our duty as set out in Rule 30 of the Rules of this court is to subject the printed evidence on the record of appeal to fresh scrutiny (see rule 30 of the Rules of this court). This is further necessary in light of ground 1 of the appeal. In the exercise of that duty the court has to warn itself that it has neither seen nor heard the witnesses testify and make due allowance for that (See Pandya v R [1957] EA 336, Selle and Another v Associated Motor Boat Company [1968] EA 123 and Kifamunte Henry v **Uganda; SCCA No. 10 of 1997).** $15$

Ground 1 of the appeal

The learned the trial judge failed to evaluate the evidence on record in respect to identification of the appellants thereby arriving at wrong and unjust conclusions occasioning a miscarriage of justice upon the appellants.

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$10$

The only question for consideration is whether the appellants were properly identified in the circumstances. The finding on proper identification was based on the testimony of PW1 and PW4 who are husband and wife respectively.

PW1 testified that around 3^rd of June 2010 he was at home about midnight $25$ with his wife together with 3 children when they were sleeping, he had a very loud bang on the door. It was a single room house with a curtain in between to divide it. He woke up and sat on the bed and saw three 3 torches. A cutlass was used to cut off the mosquito net and they were ordered to lie on the bed which they did. One of the assailants supported his torch inside $30$ his mouth and in the process the torch flashed into the face of the one assisting and he identified him as a person he had seen someplace before but could not remember exactly where. They tied his legs together very tightly and another person he identified as accused No 4 was tying him. His hands were also tied. He watched as they tied the hands of his spouse. One

of the appellants put a knife on his throat and another got a lantern and $\mathsf{S}$ poured paraffin on the net where the baby lay at the bottom bed and threatened to burn. He lit a match. He also lit a hurricane lamp and put it besides the table

They put a blanket on his face and he managed to get the blanket off his face and witnessed what was being done when they severely assaulted his 10 spouse. He watched as A3, A2 and A1 assaulted his wife. He witnessed the actions of all the accused persons except one called "Afande" who remained outside. Before the assailants left, they gagged their victims and tied them up.

- After these events PW1 reported the crime to Kakooge Police and was 15 advised that they would get dogs to help in investigations. The police brought a sniffer dog around midday. His home has been cordoned off by the police. The police dog moved from the home of PW1 to the home of one Serugo who was a neighbor and who had also been assaulted. - From Serugo's home the sniffer dog went to the bush where the property $20$ which included 2 mattresses, spray pump, flat iron, shoes and a small bag belonging to PW1's home were found and recovered. The sniffer dog then went to a house in Kyembogo, 4 kilometers from the scene of crime but the house was locked. The local council chairman of the village was called and - the police broke into the house in his presence. They found a photo album $25$ and PW1 identified a photo in it as that of A1 who was one of the assailants. A1 was arrested from that home the following day.

PW1 was also able to identify A2 and the police came to the home after that identification and arrested him. He testified that it was A2 who revealed that he had been with Amos and Joshua. They traced the home and they found a young person but he did not identify him as one of the assailants. The young

- man took them to another home and he identified A3. Another day when he was at the village he saw A4 and he asked another person as to where A4 lived. He was directed to his home and that is when he went and reported to the police. A4 was also arrested. 35 - 10

As far as PW4 is concerned she testified that she saw A4 and A2 tying her $\mathsf{S}$ husband. They tied his legs and arms. Then they came and tied her starting with her legs while torturing her. She testified that the accused persons went around flashing and shining a torch on them and did not mind being identified. A4 and A2 demanded money and her spouse showed them where the money was in the book. She fought the assailants for about 25 to 30 $10$ minutes and was stripped naked. She was ravaged by A 3 and A2. The others kept holding her while she was struggling. She was taken to Nakasongola police where she identified the assailants.

On the issue of identification, the learned trial judge directed himself on the law and considered the testimony of PW1 and PW4 among other things. $15$ Further and most significantly he found that the evidence of the identifying witness in the parade was not the only evidence of identification and there was other corroborative evidence. This is what the learned trial judge found:

PW1 told court that he clearly identified the four accused persons at the scene of crime. His identification was so clear that he was able to assist the police in $20$ arresting the suspects. When the police arrested persons whom the witnessed did not identify at the scene, he said so and these persons were subsequently released. He did not know these accused persons prior to the incident. But he was able to identify and clearly identify them to the extent that he sought them out from their respective villages, which villages were not near his own. $25$

> PW1 told court that he did not have any grudge with any of the four accused persons. There was a little lantern almost all the time the assailants were inside the house. They spent almost two hours in the house, part of that time they were having sexual intercourse with his wife. No wonder that their images were firmly fixed in his mind, and he practically single-handedly sought them all out and had them arrested.

> His resolve to arrested the assailants was matched by his clarity of their identity. When on two occasions the police arrested a person who was not part of the assailants, PW1 did not hesitate to point out that that was not one of the assailants, and such person was released.

$\ldots$

That was the extent of the identification of A4 by PW1. That identification was made in conditions which made it possible for an error free identification. This identification was corroborated by PW4.... She told court that she clearly identified all her assailants including A4. She testified that A4 was the one who tortured them most.

That identification evidence clearly placed the accused A4 at the scene of crime. Even without the identification parade evidence, the evidence on record sufficiently broke his alibi.

The learned trial judge considered all the aspects of the identification of the assailants/appellants. Clearly the learned trial judge warned himself of the special need for caution before convicting the accused persons in reliance on the correctness of the identification or identifications by the two witnesses. He directed the assessors in the summing up notes about the requirement for corroboration and the circumstances and conditions of light in the house. The learned trial judge considered the contradictions in evidence at pages 23 – 25 of his judgment and we need not repeat them. He found that that contradictions in evidence were minor and were not intended to deceive and did not go to the root of the case. The appellants were put at the scene of the crime by the evidence. He considered all the circumstances that pointed to correct identification of the appellants and this included the fact that PW1 was the one who identified the individual appellants on various dates and led to the arrest of the assailants. We find

no basis to interfere with the findings of the learned trial judge. Ground 1 of $25$ the appeal has no merit and is hereby dismissed and the conviction of the appellants is upheld.

## Ground 2 of appeal

The learned trial judge erred in law and fact when she passed a sentence of 25 and 18 years' imprisonment upon the appellants, which is illegal, harsh 30 and excessive thereby occasioning a miscarriage of justice.

An appellate court may interfere with a sentence imposed by the trial court under the circumstances set out by the East African Court of Appeal in Ogalo s/o Owoura v R (1954) 21 EACA 270. The facts in that appeal were that the appellant appealed against a 10 years sentence of imprisonment with

$10$

$15$

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hard labour for the offence of manslaughter. On whether the appellate court $\mathsf{S}$ could interfere with the sentence, the East African Court of Appeal held that:

> The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v. R. (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case

The facts of this appeal are that the appellants were convicted of aggravated robbery contrary to section 285 and section 286 (1) of the Penal Code Act. They were also convicted of the offence of rape contrary to sections 286 (2) of the Penal Code Act. The learned trial judge in passing sentence gave his reasons as follows:

The 4 accused persons were convicted of Rape and Aggravated Robbery. They committed the rape in the most heinous manner. It was inhuman to subject a married woman to sexual intercourse naked, on the floor of a single room with no curtain – as this they cut and used to tie-up the victims, and therefore, right next to the hearing and within sight of all the woman's young children, when some of the accused were holding her legs apart and others busy having sexual intercourse with her and in the process of making loud comments.

That was extremely inhumane act. What was worse, the husband was also tied up and watching. All this was done on the glare of light from a hurricane lamp. It was disgusting. It is shameful for that family. It is an act which physically and psychologically tortured the woman and as she told court, this may so remain all her life time.

It ruined her life as a mother and as a wife. There is little mercy to be shown.

The same persons robbed properties including money from their victims and severely tortured them and used them in the process. They robbed them of hard earned and household acquired properties, money.

$15$

$20$

$25$

$10$

These are all young men who are physically strong and mentally sound. They $\mathsf{S}$ ought to have engaged in honest productive work instead of raping, torturing and robbing citizens of this country.

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$15$

$20$

Court was told that A1, A2 & A3 are first offenders. I condemn that. They are young men who are capable of reform. They have spent nearly 2 years on remand, all these I have duly considered.

Each asked for leniency and told court of responsibilities all of which I have considered. A4 told court that he has responsibilities of a family and children. Court was told he is a repeat offender and that he was convicted by honourable Lameck Mukasa in Criminal Session Case No. 092/2011 had, Luwero and sentenced him to 1 year and 8 months for robbery. That means he is a repeat offender. He has also spent almost 2 years on remand. I have considered all the above and have considered all the submissions for counsel on both sides and the allocutus by the accused. I am satisfied that the 4 accused persons deserve custodial sentences, though I will not hand down the maximum prayed for by the $R. S. A.$

For the offence of rape, all the accused persons were each sentenced to imprisonment for 25 years. For robbery with aggravation, A1, A2 & A3 were each sentenced to 18 years' imprisonment. A4 was sentenced to 25 years for that offence as a repeat offender. Sentences are to run concurrently.

On a matter of principle, the learned trial judge held that the accused $25$ persons had spent almost 2 years on remand but did not specify the exact period. The accused persons were indicted around June 2010. They were sentenced on 2^nd May, 2012. Clearly this was less than 2 years but approximately one year and 11 months. This was also stated by the Resident State Attorney who submitted that the appellants had spent 1 year and 11 $30$ months on remand. The learned trial judge took into account the period the appellants had spent on remand as required by the law. The sentence was therefore not illegal but in compliance with article 23 (8) of the Constitution. Secondly, the learned trial judge took into account the age of the appellants. the antecedents in terms of whether they were 1^st offenders or repeat 35 offenders. He took into account both the aggravating factors and the

mitigating factors. There was no error in principle for which the learned $\overline{5}$ trial judge may be faulted.

Thirdly, the issue is whether the sentences meted out were harsh and excessive in the circumstances. The learned trial judge found that the appellants did not deserve much mercy. As a matter of principle, the offence was coupled with violence in that the victims were tortured and it was aggravated by rape which is a separate offence that accompanied the aggravated robbery.

In Tushabe John Bosco vs Uganda; Court of Appeal Criminal Appeal No 0425 of 2014 [2019] UGCA 2042 (9^th December 2019), the Appellant had been sentenced to 22 years for the offence of aggravated defilement against a $15$ victim of 3 ½ years. The Appellant had spent 3 years on demand and this court sentenced him to 19 years' imprisonment after taking into account the period he had spent in lawful custody. The Court of Appeal held that consistency in sentencing was a relevant factor. They held that:

Another relevant guiding principle is that when this Court is reappraising the $20$ sentence passed by the trial Court, it has to ensure that the sentence followed the consistency principle. In Aharikundira Yusitina vs. Uganda Criminal Appeal No. 0027 of 2015, the Supreme Court observed as follows:

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"It is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation."

We have accordingly considered recent trends in sentences for purposes of considering whether the sentences were consistent. In Muchunguzi Benon and Muchunguzi Thomas J v Uganda; Court of Appeal Criminal Appeal No $30$ 008 of 2008 [2016] UGCA 54 (26^th October 2016), the Appellants were convicted of aggravated robbery and sentenced to 15 years' imprisonment by the High Court. On appeal to the Court of Appeal, the sentence was upheld. The robbery involved violence in that the victim of the offence had been hacked with a cutlass and had sustained several injuries on her body.

- Further in Naturinda Tamson v Uganda; Supreme Court Criminal Appeal No $\mathsf{S}$ 025 of 2015 [2017] UGSC 64 (26^th April 2017), the Appellant appealed from the decision of the Court of Appeal which had imposed a sentence of 16 years' imprisonment for aggravated robbery. The Appellant had been convicted by the High Court of the offences of rape, defilement and aggravated robbery and was sentenced to 18 years' imprisonment on each of the counts which $10$ sentences were to run concurrently. The Court of Appeal reduced the sentence of to 16 years' imprisonment and the Supreme Court dismissed the further appeal against sentence. - In Bogere Asiimwe Moses and Senyonga Sunday v Uganda; Supreme Court Criminal Appeal No 39 of 2016 [2018] UGSC (19^th April 2018) the Supreme 15 Court upheld a sentence of 20 years' imprisonment imposed for aggravated robbery. The Appellants were 22 and 23 years old respectively and court noted that there was no violence, no death occurred and some property was recovered. Last but not least in Tukamuhebwa David Junior and Mulodo - Yubu v Uganda Supreme Court; Criminal Appeal No 59 of 2016 [2018] UGSC $20$ 7 (9^th April 2018), the appellants had been sentenced for aggravated robbery coupled with rape. On appeal to the Supreme Court, the sentence of 18 years' imprisonment for aggravated robbery was set aside for contravention of Article 23 (8) of the Constitution, and the Supreme Court held that a sentence of 20 years' imprisonment was appropriate in respect $25$ of the aggravated robbery. The Supreme Court took into account the 3 years and 7 months the Appellant had spent in lawful custody and imposed a final sentence of 16 years and five months' imprisonment from the date of sentence by the High Court. - In the above precedents the highest sentence was a sentence of 20 years $30$ imprison for aggravated robbery while for rape it was 16 years.

A1, A2 and A3 are first offenders and relatively young. While A4 had been convicted of robbery before and is a repeat offender. Sasazi Joshua was found to be 18 years old at the time of the robbery. Matovu Diza was 20 years old and he has not appealed. Wajja Amos was 18 years old. There is no medical evidence of the age of Senyonjo Vincent but at the time of his

testimony on 16^th April 2012 he was 28 ½ years old. The first and second $\overline{5}$ appellants were relatively young having turned 18 years at the time of the offence. It is the 3^rd Appellant and repeat offender who was more mature.

Age being a material factor. We have considered the fact that the first and second appellants had just attained a majority age which ought to have been reflected in the sentence for both offences.

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Accordingly, we find a sentence of 25 years for the offence of rape to be excessive. We hereby set it aside and find that a sentence of 17 years' imprisonment would be appropriate. Taking into account the period of 1 year and 11 months that the appellants were in lawful custody before their conviction, we sentence each of the appellants to 16 years and 1 month for the offence of rape which sentence shall run with effect from the date of conviction by the High Court on the 2^nd of May, 2012.

For the offence of aggravated robbery after taking into account the fact that the $1^{\ensuremath{\text{st}}}$ and second appellants were first offenders, they were relatively young at 18 years at the time of the robbery, the sentence of 18 years' $20$ imprisonment was excessive. We set it aside and find that a sentence of 13 years and 11 months would be appropriate. Taking into account the period of 1 year and 11 months that the $1^{\rm st}$ and $2^{\rm nd}$ appellants spent in lawful custody prior to their conviction, we sentence each of them to 12 years' imprisonment for the offence of aggravated robbery which sentence shall $\overline{25}$ commence running on the date of conviction on 2^nd May, 2012.

For the 3^rd Appellant, he was over 27 years old, was a repeat offender, However the sentence of 25 years' imprisonment was excessive. We set it aside and sentence find that a sentence of 20 years would be appropriate.

Taking into account 1 year and 11 months he spent in lawful custody before 30 conviction, we sentence the $3^{\ensuremath{\sf rd}}$ appellant to 18 years and 1 month for the offence of aggravated robbery which sentence commences on 2^nd May 2012, the date of his conviction.

Dated at Kampala the 17 day of Ceptande 2021<br> Jun Sun Jun Scheiner 2021<br> Fredrick Egonda - Ntende

**Justice of Appeal**

Doepheer

**Catherine Bamugemereire**

**Justice of Appeal**

$\mathcal{Z}$

**Christopher Madrama**

**Justice of Appeal**

$\mathsf{S}$