Buga v Uganda (Criminal Appeal 634 of 2014) [2024] UGCA 329 (27 November 2024)

# THB REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT GULU CRIMINAL APPEAL NO. 0634 OF 2OI4 BUGA MAJID:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

## Versus

# UGANDA:::::::::]:::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the decision of the High Court of Uganda at Lira before the Honorable Justice Vincent Okwonga delivered on the 16th day of January 2014 in Criminal Session case No. 0050-2012)

# CORAM: HON. JUSTICE FREDRICK EGONDA NTENDE,JA HON. JUSTICE MARGARET TIBULYA, JA HON. JUSTICE MOSES KAWUMI KAZIBWE, JA

### JUDGMBNT OF THE COURT

1. The appellant was indicated for aggravated defilement. It was alleged that on the 25'h of July 2010 at Anguga village in Yumbe District, he had unlawful sexual intercourse with a girl under the age of 14 years.

#### Backgrou nd

t'

2. The facts are that on the night of 25th July 20 I 1 , the victim who was 12 years old then, woke up to find the appellant lying on her and having sexual intercourse with her. She identified him with the aid of the bright moonlight and another source of light was from a small hurricane lamp which was in the room where the offence took place. She pushed him off her body and made an alarm which was answered by her grandfather. The accused fled from the

room. The victim felt pain in her lower abdomen. A whitish fluid oozed from her private parts and her clothes were wet.

I

- 3. The appellant was arrested after about two days and was taken to Romogi Police Post from where he escaped shortly after his arrest. He was, however, later re-arrested from Arua Town. He was indicted, tried and convicted of aggravated defilement CIS 129 3 and 4 (a) (c) of the Penal code Act. He was sentenced to 26 years and 8 months imprisonment. - 4. Being dissatisfied with that sentence, the appellant appealed on the sole ground that the learned trial Judge erred in law and fact in sentencing him to 26 years and 8 months imprisonment which was manifestly harsh in the circumstance. His only complaint is that the principle of consistency of sentences was not adhered to by the sentencing judge.

#### Representation.

5. The appellant was represented by M/s Harriet Otto while the respondent was represented by Jonathan Okello, Chief State Attorney.

#### Considerations.

6. We are alive to the principles that an appropriate sentence is a matter for the discretion of the sentencing judge, and that each case presents its own facts upon which a judge exercises his discretion. Further that the appellate court can only interfere with the sentence ofthe trial court ifthere is an error of law, that is, if the trial court acted contrary to the law or upon a wrong principle or overlooked a material factor. The appellate court will also interfere if the said sentence is harsh and/or manifestly excessive. (See; Kyalimpa Edward versus Uganda Criminal Appeal No. l0 of 1995; Jackson Zita vs Uganda, Criminal Appeal No. 19 of 1995 (SC); Nalongo Naziwa Josephine vs

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Uganda, Criminal Appeal No, 088 of 2009 (COA), and Kiwalabye vs Uganda, Supreme Court Criminal Appeal No' 143 of 2001.

- 7. We perused the sentencing proceedings and established that the sentencing judge did not direct his mind to the requirement that sentences for similar offences and circumstances should as much as possible be uniform. - 8. It must be emphasized that one ofthe principles ofsentencing is that sentences must be consistentl. In Baruku Asuman vs. Uganda, Court of Appeal Criminal Appeal No,387 of 2014, this court, underscored the importance of consistency of sentences. - 9. We have looked at the range of sentences for similar offences in order to determine whether the sentence of 26 years and 8 months imprisonment for aggravated defilement was harsh and excessive as alleged by counsel for the appellant. - 10. In Candia Akim vs Uganda, Court of Appeal Criminal Appeal No.0l8l of 2009, this Court upheld a sentence of 17 years' imprisonment for the offence of aggravated defilement. The appellant was a stepfather of the l3-year-old victim.

<sup>1</sup>see Guidelinc 6, para c of the Constitution (sentencing Guidelines for courts ofjudicature) (Practice) Directions 20 13.

- 1l.ln Rugarwana Fred vs Uganda, SCCA No. 39 of 1995 the Supreme Court upheld the appellant's sentence of 15 years for aggravated defilement of a 5 year-old girl. - 12. We note that the sentencing range in the above similar cases is between 15 and 17 years. - l3. Based on the foregoing, we find the sentence of 26 years and 8 months imprisonment which was imposed on the appellant in this case harsh and excessive on account of its being out ofrange with sentences in similar cases. We shall therefore interfere with it. - l4. Having taken into account both the aggravating and mitigating factors that were brought to the court's attention, and the range of sentences for the offence of aggravated defilement in the above cited authorities, we find <sup>a</sup> sentence of I 8 years imprisonment appropriate in the circumstances of this case,

However, since the appellant had spent a period of3 years and 5 months on remand prior to his conviction, we deduct that period from the 18 years and sentence him to l4 years and 7 months imprisonment from the date of his conviction, that is, 16th January 2014.1n conclusion, we allow the appeal against sentence in the above stated terms.

We so order.

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Signed, dated and delivered at Gulu this ....................................

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**Fredrick Egonda-Ntende Justice of Appeal**

**..........** Margaret Tibulya **Justice of Appeal**

Moses Kawumi Kazibwe **Justice of Appeal**