Lukwago Joseph v Uganda (Criminal Appeal No. 165 of 2016) [2025] UGCA 126 (18 March 2025)

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT MASAKA

[Coram: H. Obura, C. Gashirabake and E. K. Luswata, JJA]

CRIMINAL APPEAL NO. 165 OF 2016

LUKWAGO JOSEPH...... ............ APPELLANT

### \. ERSUS

UGANDA.... ........ RESPONDENT

(An Appeal arisingfrom the Judgment of the High Court (Tibulya Margaret, J.) in Criminal Case No.058 of20l3 delhtered on the l6th dayof May20l6)

### JUDGMENT OF THE COURT

### Introduction

[]The Appellant was indicted and convicted of the offence of aggravated defilement contrary to section 129(3) and (4) (a) of the Penal Code AcL It was alleged that the Appellant, on the 25th day of December 2012 at Bukinda Bugoma village in Rakai district, performed a sexual act with IJM, a person under 14 years. The Appellant was tried, convicted and sentenced to 20 years' imprisonment. The Appellant was aggrieved with the decision of the trial Court, hence this appeal on the ground that;

The learned sentencing Judge erred in law and fact when she failed to consider the principle of uni,formity and consistency while sentencing the appellant, lhereby imposing on the appellant o harsh and manifestly excessive sentence, leading to a miscarriage ofjustice

### Representation

[2]At the hearing, the Appellant was represented by Mr. Kigundu John on State brief. Mr. Oola Sam, a Senior Assistant Director of Public Prosecutions, represented the Respondent.

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### Submissions by Counsel for the Appellant

- [3] Counsel for the Appellant was alive to the duty of this court as the first Appellate court as is provided under Rule 30(1) ofthe Judicature (Court of Appeal Rules) Directions, SI 13-10 and Kifamunte Henry Vs. Uganda u9981 UGSC 20. - [4] Counsel submitted that even when this appeal was on sentence on1y, it was the duty of this court to evaluate the evidence on record in order to consider the appropriate sentence. - [5]Citing Kizito Senkula Vs. Uganda, SCCA No. 24l2001(unreported), counsel submitted that he was alive to the fact that this court could not interfere with a sentence imposed by a trial court unless the sentence is either illegal or founded upon wrong principles of the law. He further submitted that the appellate court will interfere with the sentence where the trial Court has not considered a material factor in the case, or has imposed a sentence that is harsh and manifestly excessive. - [6] He contended that the sentence of20 years was manifestly excessive and harsh given the circumstances of the case. He additionally stated that the trial Judge did not consider the mitigating factors before sentencing the appellant to 20 years' imprisonment. He submitted that the mitigating factors were that the appellant was a first-time offender with no criminal record' - [7] Counsel argued that the other mitigating factor was that the appellant was young. Counsel submitted that the appellant was 30 years old at the time of the trial and if he serves the 20 years, he would leave prison at 50 years, after the productive years of his life. Counsel cited Kabatera Steven Vs. Uganda, CA No. 13 of 2001[unreported], where it was held that age is key while sentencing the Appellant.

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- [8] Counsel argued that a lenient sentence would give time to the appellant to reform. Counsel cited Kabaza Vs. Uganda [20191 UGCA 2028, where it was held that the incarceration of convicts should not only serve the purpose of punishing them but should also promote their rehabilitation and reintegration into society after they have served their sentence. - [9] Conceming consistency, it was argued for the appellant that it was a vital principle of the sentencing regime, which is rooted in the rule of law. Counsel cited Aharikundira Yustina Vs. Uganda [20181 UGSC] 4. He also cited German Vs. Uganda, CA No. 142 of 2010, where a sentence was reduced from 20 years to 15 years.

#### Submissions by counsel for the Respondent

- [10] Counsel for the respondent likewise took cognizance of the duty of <sup>a</sup> first appellate Court, which is to re-appraise the evidence and draw its own conclusion as provided under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions and Kifamunte Henry Vs. Uganda [19981 UGSC 20. - <sup>I</sup><sup>I</sup>1] It was submitted that the appellate court will not normally interfere with the discretion exercised by a trial Judge in sentencing unless there is evidence that the Judge acted on the wrong principle, overlooked material facts, or the sentence is manifestly excessive or harsh. Counsel cited Bukenya Joseph Vs.

# Uganda [2013] UGSC 3.

112) It was submitted by counsel that the appellant did not demonstrate how the sentence of 20 years' imprisonment was harsh. Counsel argued that merely challenging the trial Judge's sentencing decision is not sufficient unless the appellant explicitly highlights the irregularities in the sentence. It was his submission that the trial Court exercised its discretion judiciously, considering the aggravated factors, including the nature of the offence, e of the

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victim and the need to protect vulnerable members of the society from sexual abuse. Counsel pointed out the fact that the offence of aggravated defilement carries a maximum sentence of death.

- t13] On the argument by counsel for the appellant that the court did not consider all the mitigating factors, counsel submitted that the trial Court considered all the mitigating factors only that they were outweighed by the aggravating factors. He relied on Kooki Simon Vs. Uganda, Criminal Appeal No. 15 of2010(unreported), where the court held that being a firsttime offender does not automatically entitle an accused person to a lenient sentence, especially where the crime committed is of a grave nature. - [4] He further contended that the appellant def,rled a boy of five years instead ofprotecting him. Counsel stated that the appellant needed a deterrent sentence and relied on Mugerwa Paul Vs. Uganda 120151 UGCA 49, where the appellant was sentenced to 26 years and 6 months' imprisonment. In Kikomeko Issa Vs. Uganda [20231 UGCA 214, this court upheld a sentence of 22 years' imprisonment. - t15] Counsel submitted that this court should uphold the sentence of <sup>20</sup> years' imprisonment.

### ANALYSIS

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### Role of the First Appellate Court

- [6] Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, SI 13-10, the duty of this Court as the first Appellate Court is to re-evaluate the evidence on record and come to its own conclusions. - g "An oppropriate sentence is o matterfor the discretion ofa sentencing

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the trial judge was monifestly excessive as lo amounl to on injustice"

[8] The appellant contended that the trial court did not consider the mitigating factors. The Supreme Court in Aharikundira Yustina Vs. Uganda(supra) faulted both the trial Court and the first appellate court for failure to weigh the mitigating factors against the aggravating factors. These were the sentencing proceedings of the trial Court;

#### " State

Ile pray for a deterrent sentence

The accusecl brctgged, asking why the boy was in the bar at that time. AI was not remorseful.

#### Counsel of lhe accused;

We pray for a leniency cuslody sentence. Accused. I pray for leniency

Court

I haye considered all that was said, The accused violated the victim in the most inhuman manner. The victim was yery young, 5 years old then, andwill live with the efects of the assaultfor long. I haste considered the period on remund.

The accused is sentenced to 20 years' imprisonmenl."

[ 19] The only mitigating factor that the appellant raised during allocutus was that he asked for a lenient sentence. According to the record, the trial Judge considered that. Counsel for the appellant submitted from the bar that even when the Appellant did not raise the age as a mitigating factor, the court ought to have considered it while sentencing. We find that the trial Judge could not be faulted because she considered whatever was said. At the age of30 years the offence and we find that the appellant was not so youthful and considering

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age of his victim, he cannot hide behind age for leniency. On whether the sentence was harsh and manifestly excessive, the Supreme Court in **Aharikundira Yustina** (supra) explained what "*manifestly excessive*"

> "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 imposed exceeds the permissible *range or sentence variation.*"

In the third schedule to the Constitution (Sentencing Guidelines for $[20]$ Courts of Judicature)(Practice) Directions, 2013, the sentencing range for aggravated defilement starts from 30 years imprisonment up to the death penalty, which is the maximum penalty upon consideration of the mitigating Guideline No. $6(c)$ of the Sentencing factors. aggravating and Guidelines 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"

- We have considered **Kato Isma alias Mulondo Vs. Uganda, CACA** $[21]$ No. 58 of 2015, where the court reduced a 40-year-old sentence to 22 years of imprisonment. In Twesigye Esau Vs. Uganda, 2022 UGCA 237, the court reduced a sentence from 32 years to 25 years of imprisonment. Therefore, a sentence of 20 years would not be harsh or excessive in the circumstances. - With the above, we find that the appeal lacks merit. $[22]$ - The Appellant will continue serving his sentence. $[23]$ - $[24]$ We dismiss the Appeal.

$\mathcal{C}\mathcal{V}$

We so Order

$18t$ ...... day of W. O. r.h. 2025 Dated and delivered this .....


**HELLEN OBURA**

**JUSTICE OF APPEAL**

# **CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

EVA K. LUSWATA **JUSTICE OF APPEAL**