[2020] UGCA 20


THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

### AT MASAKA

# Criminal Appeal No. 0057 of 2015

(Appeal from the Judgment dated 6^th February, 2015 of the Hon. Justice Rugadya Atwoki, in High Court at Masaka Criminal Case No. 058 of 2012) $15$

Ssali Alex :::::::::::::::::::::::::::::::::::: versus

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Uganda :::::::::::::::::::::::::::::::::::

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Hon. Lady Justice Elizabeth Musoke, JA Coram: Hon. Justice Ezekiel Muhanguzi, JA Hon. Justice Remmy Kasule, Ag. JA

#### **JUDGMENT OF THE COURT** $25$

The appellant appealed against the sentence only, pursuant to his supplementary memorandum of Appeal. He abandoned the other grounds contained in the earlier memorandum of appeal.


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#### Ground of Appeal. 30

The single ground of the Appeal is that the learned judge erred in law and fact when he sentenced the appellant to 40 years imprisonment which sentence is harsh and manifestly excessive in the circumstances.

This Court, with no objection from the respondent's counsel, 35 granted leave to the appellant to appeal against the sentence only pursuant to Section 132(1) (b) of the Trial on Indictments Act.

## Background:

- The appellant was tried and convicted by Hon Justice Rugadya Atwoki in Masaka High Court Criminal Case No. 058 of 2012 of 40 the offence of Rape contrary to Sections 123 and 124 of the Penal Code Act. - The appellant was a traditional medicine man. The victim went to him to have her family problems solved. The appellant took the victim to a deep forest, ordered her to undress, deceiving her that 45 by doing so she was going to get rich by regaining all the money she had lost which was about shs. 38 million. The Victim, believing the appellant, undressed, whereupon the appellant raped her. She tried to resist by making an alarm; but no one came to her rescue as the two were deep in the forest. After being raped the victim 50 reported the appellant to the leader of the traditional healers in the area, that is Kasensero, Rakai District. The appellant was arrested, charged, tried and convicted. He was sentenced to 40 years imprisonment. Dissatisfied, he appealed against the sentence.

### **Legal representations**

At the hearing, the appellant was represented on state brief by Ms. Namata Edith while Ms. Naluzze Aisha, Assistant DPP was for the respondent.

#### Appellant Counsel's submissions 60

Appellant's Counsel submitted that the sentence of 40 years imprisonment was too harsh and excessive in the circumstances.

The appellant was a young man of 35 years of age, was a first offender and had a family to look after. These mitigating factors were not considered by the trial Judge. She implored this Court to 65 consider the principle of uniformity and consistency in sentencing following the decision of **Mbunya Godfrey v Uganda: Supreme Court Criminal Appeal No. 4 of 2011**, where it was stated that:

"We are alive to the fact that no two crimes are identical. However we should try as much as possible to have 70 **consistency in sentencing**". Counsel provided authorities of cases of rape where the sentencing never exceeded sixteen years.

In Bizimana Jean Claude v Uganda: Court of Appeal Criminal **Appeal No. 143 of 2010**, the sentence was reduced by this Court from 18 years to 15 years for rape. The appellant was aged 36 years and raped the victim, a refugee mother, in front of her children.

In Oyeki Charles v Uganda Court of Appeal Criminal Appeal **No. 126 of 1999,** the victim, a mother, was raped in a public path, in the presence of her child and other members of the public who were passing using the path. The rapist was sentenced to 15 years

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imprisonment by the trial Court and the same was confirmed by this Court on appeal.

Counsel prayed the Court to reduce the sentence to 7 years imprisonment.

#### **Respondent Counsel's Submissions:** 85

of justice".

Learned Counsel for the State, on the other hand, supported the decision of the High Court of sentencing the accused to 40 years imprisonment.

She submitted that the offence of rape carries a maximum sentence of death, and that the prosecution at trial prayed for 40 90 years and the defence prayed for 30 years and court went ahead to sentence the appellant to 40 years. Counsel further argued that it was a settled law that this honourable court cannot interfere with the sentence imposed by the trial court in the exercise of its discretion. She referred court to **Kiwalabye Bernard v Uganda** 95 Supreme Court Criminal Appeal No. 143 OF 2001 2013, where it was stated that:

"The appellant court will not interfere with the sentence imposed by the trial court in exercise of its discretion unless such exercise of discretion results into a sentence which is *manifestly excessive or so low as to amount to a miscarriage*

Counsel also invited Court to consider the case of **Mubangizi** v Uganda: Court of Appeal Criminal Appeal No. 12 OF 2012, a rape case, where the appellant was sentenced to 30 years imprisonment and this very court upheld the said sentence.

### Decision of the Court:

We have considered the submissions of both counsel, the evidence adduced at trial as well as the Court decisions referred to us on the main issue of whether the learned judge erred in law and in fact when he sentenced the appellant to 40 years imprisonment, which sentence, the appellant contends, is harsh and manifestly excessive in the circumstances.

It is now a well settled position of law, that this Court, as the appellate Court, will only interfere with the sentence imposed by a 115 trial court, only where the said sentence is either illegal or founded upon a wrong principle of law, or where the trial court did not consider a material factor in the case or where the court imposed a sentence which is too harsh and manifestly excessive or too low.

in the circumstances, that it results in a miscarriage of Justice. 120 See: Bashir Ssali v Uganda Supreme Court Criminal Appeal No. 40 OF 2003 and also Ninsiima Gilbert v Uganda: Court of Appeal Criminal Appeal No. 180 OF 2010.

We have ourselves reviewed and subjected to fresh scrutiny the evidence that was before the trial judge and the factors he 125 considered in arriving at the decision of sentencing the appellant to a term of imprisonment of 40 years.

The Learned trial Judge while passing the sentence upon the appellant considered the mitigating factors of the appellant being a first offender, a young man who can reform and who had a family 130 to look after. The aggravating factors were that the victim went to the appellant seeking for his help as a medicine man and then he turned against her and raped her. He abused and humiliated her

by first making her naked. The Learned Judge also considered the period of 2 years and 10 months that the appellant had spent on remand. This Court upholds the learned trial Judge as having acted properly in this regard.

However, the learned trial Judge did not consider any past decisions for guidance as to the proper sentence, and with respect, did not address himself on the necessity for consistency and uniformity when sentencing the appellant. See: **Mbunya Godfrey** vs Uganda (Supra).

This Court will thus proceed to examine some past Court decisions having some similarity with the facts of the appellant's case.

In Court of Appeal Criminal Appeal No. 126 of 1999: Oyeki 145 **Charles Vs Uganda,** the victim mother was walking back to her home together with her daughter at 9:00 p.m. when the appellant seized and raped her in a public path and in the presence of her daughter and other passers-by. Appellant was a first offender, spent 4 years on remand and caused some injuries to the victim. 150 This Court left undisturbed the sentence of 15 years imprisonment imposed by the trial Court upon the appellant.

The facts in Bizimana Jean Claude v Uganda: Court of Appeal **Criminal Appeal No. 143 of 2010,** were that the appellant, aged 36 years, a father of 2 children, attacked and raped a victim who 155 was in her house with her young children aged 3 and 4 years. The victim had just finished bathing and was in her night dress without knickers when the appellant kicked, opened the door of her house, and armed with a knife, raped her after which he ran away and left the victim and her children locked inside the house. The appellant

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locked the house from outside. It is the victim's husband who on returning home, found the victim and the children locked inside. The appellant spent 5 years on remand. This Court set aside the sentence of 18 years as being harsh and excessive and substituted the same with a sentence of 15 years imprisonment.

In Aliga Ben Vs Uganda: Court of Appeal Criminal Appeal No. **69 of 2014,** a sentence of 24 years imprisonment for rape was set aside as being harsh and excessive and was substituted with a reduced sentence of 16 years imprisonment.

However, in Mubangizi V Uganda, Court of Appeal Criminal 170 **Appeal No. 12 of 2012,** the appellant was sentenced to 30 years imprisonment for rape and the sentence was upheld on appeal.

Having taken in to consideration the submissions of Counsel, the decisions of Court, as regards to the sentence for rape, this Court has concluded that the sentence of 40 years imprisonment passed

175 upon the appellant was too harsh and excessive in the circumstances. The same is accordingly hereby vacated.

This Court substitutes the said sentence with a sentence of 20 years imprisonment. Out of this 20 years imprisonment sentence,

this Court deducts the 2 years and 10 months, the appellant spent 180 on remand. Accordingly the appellant is to serve a sentence of $17$ years and 2 months imprisonment as from the date of conviction of $6^{th}$ February, 2015

This appeal partly succeeds in the terms stated above.

We so order. 185

> day of $\mathcal{A}$ Dated at Masaka this.......

Elizabeth Musoke **Justice of Appeal**

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Ezekiel Muhanguzi Justice of Appeal

Remmy Kasule

Ag. Justice of Appeal

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