Byaruhanga v Uganda (Criminal Appeal 160 of 2014) [2024] UGCA 252 (4 September 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

(Coram: Eva K. Luswata, JA, Oscar Kihika, JA, Asa Mugenyi, JA)

## CRIMINAL APPEAL NO.16() OF 2014

#### BETWEEN

BYARUHANGA DONATO::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### AND

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

[Appeal from the Judgement of the High Court sitting at

Mbarara in Criminal Session Case No. 51 of 2O11 by Hon. Justice VT. Zehurikize delivered on 14tt'August, 2013]

#### JUDGEMENT OF THE COURT

## Introduction

1l The Appellant was charged with aggravated dehlement contrary

- to sections lzglLl, (3) and (a) (a) of the Penal Code Act Cap 12a. It was stated in the indictment that the Appellant, Byaruhanga Donato aged 35 years, on the 18tt' day of November, 201O at Kacerere cell in Mbarara District unlawfully performed a sexual act with NS a girl under the age of 14. - 25

2l The Appellant pteaded not guilty and a full trial was conducted by the Court wherein he was found guilty and sentenced to 25 years' imprisonment.

# s Representation

3] At the hearing, the Appellant was represented by Ms. Juliana Kamusiime while the Respondent was represented by Ms. Sharifah Nalwanga a Chief State Attorney. The Court adopted their respective submissions which we considered when determining the appeal.

### Brief Facts

- 4l The brieffacts ofthe case as discerned from the record are that on 18th November, 2OlO at around 2:00 PM, NS then aged 10 years went to fetch water in the farm of one Kanyomozi' The accused came and pulled her by the arm in the bush near the tap and had sex with her. She felt pain in her private parts but when she went home, she feared reporting the incident to her grandmother for fear of being beaten. The following day, while in school, NS reported the defilement to a teacher called Dinah. The teacher reported to NS' father the later who caused the arrest of the Appellant. The Appellant was charged with aggravated defilement, convicted and sentenced as stated. - 5l The Appellant being aggrieved with the decision of the High Court lodged an appeal premised on one ground set out in the Memorandum of Appeal as follows: -

The learned trial Judge erred in law and fact uhen he sentenced the conuict to 2 5 years' impisonment uhich was harsh and excessiue.

## 30 Appellant's Submissions

6l By way of introduction, Appellant's counsel submitted that on a first appeal from conviction and sentence, an appellate court

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is entitled to carry out its own consideration and views of the evidence as a whole and make its own decision thereon. She cited Kifamunte Henry vs Uganda, Criminal Appeal No. 1O of 1997. Counsel in addition cited Section 132 of the Trial On Indictment Act which gives an accused person a right of appeal from conviction and sentence by the High Court other than the sentence fixed by law.

7] Counsel referred to line 5 ofpage 19 ofthe record ofappeal and submitted that despite the Judge noting that the Appellant was young, a hrst time offender with family responsibilities, he still passed a sentence of 25 years. For guidance, counsel referred us to Tusabe John Bosco vs Uganda, Criminal Appeal No. 425 of 2O14 where the Judge appreciated the fact that the sentence was harsh and excessive and finally invited Court to consider the principle of uniformity and also put into consideration the mitigating factors in favor of the Appellant and then sentenced him to a lenient sentence.

8l In conclusion, the Appellant prayed that this Court finds the sentence harsh and allow the appeal.

### Respondent's submissions

9l In response, Respondent's counsel contended that the sentence of 25 years' imprisonment was not harsh and excessive for Section 129(3) & (4) of the Penal Code Act, Cap 128 prescribes a maximum sentence of death for the offence of aggravated defilement. Further that, the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, (hereafter Sentencing Guidelines) Guideline 19 of the 3.d Schedule, provides for a starting point of 35 years

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and above. Counsel submitted that the learned trial Judge considered both the mitigating and aggravating factors and went ahead to deduct the period of 2 years and 8 months that the Appetlant had spent on remand.

- 10 15 10] Counsel added that sentencing is a discretion of a trial Judge and the appellate Court will only interfere with a sentence imposed by the trial Court if is evident that it acted on a wrong principle, or over looked some material fact or, if the sentence is manifestly harsh and excessive or too low in view of the circumstances. To support those submissions, counsel cited Kiwalabye Bernard vs Uganda, SC Criminal Appeal No. 143 of 2OO1 which was cited with approval in Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2OL6. - 111 Counsel then drew our attention to decisions of the Supreme Court and this Court to argue that in comparison, the sentence against the Appellant is not harsh and excessive. She in particular referred us to several cases in comparison. For example, in Mukundane Edson vs Uganda, CA Criminal Appeal No. 669 of 2OL4, where this Court upheld a sentence of 25 years'imprisonment for the offence of dehlement of a 1O year old girl, after weighing the mitigating and aggravating factors. In Dumba Fred vs Uganda CA Criminal Appeal No. O7O of 2OL2, this Court upheld a sentence of 25 years imprisonment for aggravated defilement. Lastly in Senoga Frank vs Uganda CA Criminal Appeal No. 74 of 2O1O, this Court maintained a sentence of 28 years and 4 months' imprisonment for aggravated defilement.

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#### Analysis and decision of the Court $\overline{5}$

We have carefully studied the record, considered the $121$ submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. We are alive to the duty of this Court as a first appellate Court to review the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court before making a decision. See: Rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions S. I 13-10. We do agree and follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, (supra) where it was held that on a first appeal, this Court has a duty to:-

> "... review the evidence of the case and to consider the materials before the trial Judge. The appellate court must then make up its own mind $not$ *disregarding the judgement appealed from,* but carefully weighing and considering it."

We agree with counsel for the Respondent that the principles $\overline{131}$ guiding appellate Courts' mandate to interfere with sentence are now well established. The decision in this Court in Kiwalabye Bernard vs Uganda, (supra) comes to mind.

It was held inter alia that:

"an appellate Court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be 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 while passing the sentence or where the sentence is imposed on a wrong principle."

It is the Appellant's case that the learned trial Judge sentenced $[14]$ him to a harsh and excessive sentence of 25 years'

ank of

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$10$

imprisonment. His reasons were that the trial Judge did not consider the mitigating factors and the principle of consistency. Respondent's counsel contested the fact that the sentence was harsh and excessive and cited previously decided cases of the Supreme Court and Court of Appeal in matters of a similar nature.

The principle of consistency is well rooted in our criminal $[15]$ jurisprudence and is now incorporated in Paragraph 6(c) of the **Sentencing Guidelines** which provides that;

> Every court shall when sentencing an offender take into account—

*the need for consistency with appropriate sentencing* levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.

Except with good reason, the principle should be applied by any sentencing Court to ensure that convicts receive the same treatment under the law. It was for that reason held in Aharikundira Yustina vs Uganda, SC Criminal Appeal No. 27 of 2015, that laws ought to be applied with equality and without unjustifiable differentiation. That is not to say that the principle is available for every flimsy contest against a sentence. It was for that reason held in Ndyabalema Fulugensio vs Uganda, CA Criminal Appeal No. 126 of 2016 that:-

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"There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial Judge on grounds of it being manifestly excessive. *Sentencing is not a mechanical process but a matter of* judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence is $in$ the circumstances. $In$ manifestly *excessive,*

AMK Jr.

5 ciranmstances where the learned tial Judge appeared to onlg consider aggrauating factors, a sentence maA.......... be considered manifestly excessiue".

- i6l At the trial, both counsel were given opportunity to make submissions during the allocutus. Those submissions are clear in the record and we shall not repeat them here. - 171 We are convinced that the trial Judge considered both the mitigating and aggravating factors before arriving to a sentence. He specifically noted that the Appellant is a young hrst time offender, with family responsibilities. Although not a rule of law, we consider that the trial Judge ought to have applied the consistency principle by considering similarly decided cases which could have provided some measure of uniformity. The trial Judge however, omitted to consider the principle of consistency. - 1Sl There is indeed a wealth of authority on previous sentences for aggravated dehlement. Both counsel provided some of those' In addition, in Senoga Frank vs Uganda CA Criminal Appeal No. 74 of 2OLO, the Appellant was convicted of aggravated dehlement of a lO-year-old and sentenced to 28 years and 4 months' imprisonment, which was maintained on appeal. In Othieno John vs Uganda I2O2L|UGCA 1OO, this Court upheld a sentence of 29 years' imprisonment lor aggravated defilement of a child aged 14 years old. In Seruyange Yuda Tadeo vs Uganda, CA Criminal Appeal No. L74 of 2OLO, also a conviction of aggravated defilement, this Court substituted a sentence of 33 years' imprisonment with one of 27 yeats' imprisonment after deducting the period spent on remand. In this case, the Appellant a 35 year old made ravished a 10 year 20 25 30

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- 5 old girl. The defilement was violent for the child bled and felt a lot of pain in her private parts. - i9l We find no strongly compelling facts to persuade this Court that a sentence of 25 years' imprisonment, would be manifestly harsh and excessive on the facts before us. Thus, although the trial Judge failed to consider the principle of consistency, that omission did not occasion any miscarriage of justice. We have considered the principle of consistency and looked at previously decided cases and consider that the offence justified the offence imposed. - 2Ol We therefore find that the sentence was neither harsh nor excessive in the circumstances. We are not prepared to interfere with it. We accordingly uphold the decision of the trial Court and dismiss the appeal. 15 - 2ll The Appellant shall continue to serve his sentence.

20 Dated at Mbarara this N- of September,2024.

HON. K. LUS A JUSTICE OF J bva I

. V

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30 HON. OS IKA JUSTICE OF A

HON. Dr. A UGENYI

JUSTICE OF APPEAL