Ahimbisibwe v Uganda (Criminal Appeal 144 of 2013) [2024] UGCA 248 (2 September 2024)

Full Case Text

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA Coram: Eva Luswate Oscar Kihika and Asa Mu n J CRIMINAL APPEAL O144 OF 2013

(Arising from High Court Criminal Case HCT-05-CR-SC-204 of 2013 at Mbarara.)

# AHIMBISIBWE RONALD : : : : : : : : : : : : : : : 3 : : : : : : : : : : : : 3 3 : : : APPELLANT VERSUS

UGANDA :::::::r::::::::::::::::3::::::::::::::::::r:3:3:::::::3:::::::::: RESPONDENT

#### JUDGMENT OF THE COURT

# 1. INTRODUCTION

This is an appeal against the sentence of the appellant to 20 years of imprisonment for the offence of aggravated defilement contrary to Sections 129(3) and (4) of the Penal Code imposed by the High Court, Justice V. T. Zehulikizr. . 20

# 25 2, BACKGROUND

On I 7th January 20 13, the appellant went to the home of the victim, one Kyomugisha Rodag. He took her to the plantation and demanded Shs. 2,0O0 he had given her. He forcefully had sex with her. He promised to pay her Shs. 1,000.

30 The victim went home. The appellant was arrested and charged with aggravated defilement. He pleaded guilty and was sentenced to imprisonment of 20 years.

# 3. GROUNDS OFAPPEAL

1. The learned judge erred in law and fact in sentencing the appellant to 20 years of imprisonment which was manifestly harsh in the circumstances. llPage

# 4. rssuEs

1. Whether the sentence of 2o years imprisonment on the appellant was harsh?

# 10 Representatlon

At the hearing on 2"d September 2024, tlne appellant was represented by Ms' Julian Kamusime on state brief while the respondent was represented by Ms. Sherifah Nalwanga, Chief State Attorney.

#### SUBMISSIONS OF PARTIES

# 5. APPELLANT'SSUBMISSIONS

20 The appellant submitted that role of a first appellate court is clear. He cited Kifamunte Henry u uganda criminal Appeal 10 of 1997 (unreported) where the court stated that

> "we agree on f-rrst appeal from a conviction by judge the appellant is entitled to have appellant,s own consideration and views of the evidence as a whole and its own decision thereon."

The appellant cited S. 132 of the Trial Indictment Act which states that an accused person may appeal to the Court of Appeal from a conviction arld sentence by the High Court in the exercise of its original jurisdiction' He further

30 cited S. 132(b) which states that an accused may with leave of the Court appeal to the court of Appeal against the sentence alone imposed by the High court other than the sentence fixed by law. He submitted that s. 63 provides that if the accused person pleads guilty, the plea shall be recorded and he or she may be convicted on it.

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5 The appellant submitted that he pleaded guilty and was repentant. He submitted further that 20 years of imprisonment was excessive. He stated that he was a family man and prayed for lenience. He invited court to consider the principle of uniformity.

# 10 6. RESPONDENT'S SUBMISSION

The respondent submitted that the sentence of 20 years is not harsh and excessive. Aggravated defilement carries a maximum sentence of death. It submitted that the constitution (Sentencing Guidelines for courts of Judicature) (Practice) Directions 20 12 Guideline 19 in the 3'd Schedule Part 1 provides a

starting point of 35 years and above.

The respondent further submitted that the trial judge considered both the mitigating and aggravating factors. He noticed that the appellant was a first offender. He committed a serious offence. He deducted the 10 months spent on remand. He left out nothing in particular. He did not act on any wrong principle of law. 20

The respondent submitted that it is trite law that sentencing is at the discretion of the trial judge. An appellate court will only interfere with the sentence if it is evident that the trial judge acted on a wrong principle or overlooked some material fact. It cited Kobusheshe Karaueri u uganda CACA 110 of20O8 where it was held that sentencing is at the discretion of the trial judge. 25

30 The respondent invited the court to look at the principle of uniformity. It cited Bgaruhnnga Okot V uganda CACA 078 of2010 where it was held that the court is bound to follow the principle of parity and consistency while sentencing, bearing in mind the circumstances under which the offence is committed. The respondent submitted that the court has upheld sentences of 20 years of imprisonment and even higher sentences in similar circumstances. It cited Musisi John u Uganda Court of Appeal Crimina-l Case 136 of 2Ol2 where the 3lPage 35

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- 5 court found a sentence of 20 years of imprisonment not illegal. In Luanyaga Joseph u uganda court of Appeal criminal Appeal 535 of 2016 the court found asentence of 22 years appropriate for aggravated defilement where the appellant was convicted on his own plea of guilt. In Mutashobga Anudi u Uganda Court of Appeal criminal Appeal OO5O of 2015, the court upheld a sentence of 20 years - 10 of imprisonment for aggravated defilement where the appellant pleaded guilty. \n Kabagambe Yotueri u uganda criminal Appeal o659 of 2015 the court confirmed a sentence of 22 years for aggravated delilement on an own plea of guilty.

# 15 DETERMINATION

The appellant was convicted of aggravated defilement contrary to S' 129(3) and 4(a) of the Penal code on his own plea of guilt. on 17th January 2013, he defiled a girl of 10 years of age. He was sentenced to 2O years of imprisonment' The appellant is aggrieved by the sentence of the trial judge.

The respondent brought it to the court's attention that the appellant was charged under S. 129(4)(b) instead of s. 129(a)(a) of the Penal code. He contended that the said charge was an error which the court can overlook. Under S. 34 of the criminal Procedure code this court may overlook such errors. 'fherefore we shall proceed with the appeal on sentencing,

30 ln Kitualabge Bemard u lJgonda Criminal Appeal 143 of 2001 the Supreme Court held that it is trite law that the appellant court is not to interfere with the sentence imposed by a trial court which has exercised its discretion unless tl.e discretion is such that it results in the sentence imposed being manifestly excessive or low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence is imposed on wrong 35 principle.

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Guideline 6(c) of the Sentencing Guideline which provides that;

. Every court shall when sentencing an offender take into account the need for consistency with appropriate sentencing levels and other areas of dealing with offenders in respect of similar offences submitted in similar circumstances."

- The judge noted the aggravating and mitigating factors. A perusal of the sentencing by the trial judge shows that he was aware that the appellant was a first offender. He had pleaded guilty thereby saving court's time and resources. He also noted that he committed a serious offence. He performed sex with a girl of 10 years of age. However, he does not seem to have applied the aggravating and mitigating factors thereby arriving at a harsh sentence. The court did consider the fact that the appellant pleaded guilty and was a young man. Taking the said factors into consideration we shall reduce the sentence to 16 years of imprisonment to be served from the date of conviction. The 10 months spent in remand is deducted. Therefore, the appellant will serve a period of 15 years and 10 15 - 2 months from the date of conviction, 25th october 2013. This appeal succeeds. 20

Dated at Mbarara ttrls lf.-1.3. aay 2024

uswata Justlce of Ap

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Dr. Ase Mugenyl Justlce of Appeal

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