Ndyabalema v Uganda (Criminal Appeal No. 0126 of 2016) [2023] UGCA 394 (6 July 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COTJRT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. O126 OF 20T6 (Coram: Buteera DCJ' Bamugemereire & Luswata, JJA)

## NDYABALEMA FTILUGENSIO : s : 3 : :: :: : :s : s : 3 : 3 : : : : 3 3 : 3APPELLAITT VERSUS

#### UGANDA:::::::::33::::::3:333333:333:s::::s::::!:::::::::3::::: RESPONDENT

(An appeal arising out of the judgment of Margaret Tibulya J, in High Court 10 Criminal Session No. 001 of 2013 dated 16'h May 2016 at Masaka)

Criminal Law - Aggrauated Defilement cls sec 129(3)ft)(") of the Penal Code Act - Appeal against Harsh and excessiae sentence only.

# 15 JT]DGMENT OF THE COURT

### Introduction

The appellant performed a sexual act with NS a girl under 14 years. He was convicted of Aggravated Defilement contrary to section 129(3), (+X") of the Penal Code Act Cap.120 and sentenced to 30 20 years imprisonment.

#### Background

The brief facts are that the appellant was a herdsman who worked for the victim's family. On l2'h Jdy 2012, at Lwesinga village in 25 Lwengo district, the victim took cows to the appellant for grazing. The appellant asked the victim to have sex with him in exchange for 100 shillings and a 'kabalagala' (local pancake). The victim's aunt later discovered what had transpired when she checked the victim. She confirmed that NS had been defiled. The victim 30 disclosed the appellant as her defiler. The appellant denied. In a sworn defence he maintained his innocence and blamed his plight

on his mother-in-law who had threatened to arrest him unless he left her daughter alone. Upon trial, the appellant was found guilty and he was sentenced to 30 years imprisonment. He was discontented with the sentence and appealed to this court against 5 sentence only.

#### Ground of Appeal

The Learned Trial Judge erred in law and fact when she sentenced the appellant to 30 years imprisonrnent, a sentence 10 which was harsh and excessive in the circumstances.

#### Representation

At the hearing of the Appeal, the appellant was represented by Mr. Joseph Wasswa who appeared on state brief, while the respondent 15 was represented by Mr. Semalemba Simon Peter, the Assistant DPP. The court granted the appellant leave to appeal against sentence only. Both counsel proceeded by way of written submissions.

# 20 Submissions for the Appellant

Counsel for the appellant faulted the learned trial Judge for finding that the appellant never deserved leniency even after the appellant had presented mitigating factors. He submitted that the appellant was an elderly man aged 60 years at the time of the trial, he did not

25 have a previous criminal record and had spent 4 years on remand. Counsel relied on Abaasa Johnson & Anor v Uganda CACA N.33 of 2010 which is to the effect that when trial Judges use statements not borne out of evidence, these statements influence them to impose sentences that are harsh and excessive.

Counsel for the appellant contended that this court should consider cases with similar facts where courts have meted out sentences between IB years and 11 years for the offence of aggravated defilement. He referred to Kibaruma Joh, v Uganda CACA No. 255

5 of 2010 where an appellant was sentenced to 9 years for defiling a 9year old victim. He also referred to Kato Sula v Uganda CACA No. 30 of 1999 where the court confirmed a sentence of B years imprisonment. He also referred to Tiboruhanga Emmanuel v Uganda CACA 655 of 20L4. Counsel then prayed that this court 10 considers the mitigating factors in this case and the principle of consistency while sentencing so as to reduce the appellant's sentence to 1l years imprisonment.

#### Submissions for the Respondent

15 Counsel for the respondent invited this court to affirm the sentences passed by the trial Judge. He argued that a sentence of 30 years for the offence of aggravated defilement was neither harsh nor excessive and that the time spent on remand was considered. Counsel submitted that the trial Judge took into consideration the 20 mitigating factors and aggravating factors. He cited Bonyo Abdul v Uganda SCCA No. 7 of 20ll where the appellant was sentenced to life imprisonment for the offence of defilement. It was his submission that the aggravating factors outweighed the mitigating factors. Counsel averred that the offence of aggravated defilement 25 carries a maximum sentence of death and that the appellant being sentenced to 30 years was neither harsh nor excessive. He invited

this court to dismiss the appeal and uphold the sentence.

#### Consideration of the Court.

5 This being a first appeal, we are mindful of the duty of this court as the first appellate court. This duty was pronounced in Kifamunte Henry v Uganda SCCA No. l0 of 1997, where the court observed that,

ooThe first appellate court has a duty to review the evidence 10 of the case and to reconsider the materials before the trial Judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it..." See also, Executive Director of National Environmental Management Authority (NEMA) " 15 Solid State Limited SCCA No.l5 of 2015 (unreported) and Pandya v R [957] EA 336.

20 25 This is an appeal on sentence only. The law that governs appellate courts is that an appellate court is not to interfere with the sentence imposed hy " 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 to consider an important matter or circumstances which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle. See Kiwalabye Bernard v Uganda SCCA No. I43of200I.

In the instant case, while sentencing the appellant, the Learned Trial Judge made the following remarks:

"I have considered all that was said in aggravation and in mitigation of sentence. I have also taken into account the 5 period the convict has been on remand. The accused is a mature adult, but choosing to defile a young girl exhibits a complete lack of judgment on his part. He doesn't deserve lenience. He shuttered a life so young. I sentence him to 30 years imprisonment."

1O From the above quotation, it is evident that the learned trial Judge was aware of the mitigating and aggravating factors in the case but did not take the mitigating factors into consideration when she remarked that the appellant did not deserve any leniency.

In Abaasa Johr,ssn & Anor v Uganda CACA No.33 of 2010, the court 15 was critical of use of statements not borne out of evidence. The court found that such statements may have negatively influenced the trial Judge causing her to mete out a harsh and excessive sentence. While sentencing, the learned trial Judge, in this matter, used the phrase that'ohe doesn't deserve lenience." Her comments that the 20 appellant deserved no leniency were not reflective of the mitigating factors. Indeed a 60year old man was sentenced to 30 years of

imprisonment as a result.

There is a minimum threshold to be met for an appellate court to 25 intervene with the sentence handed down by . 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 manifestly excessive, in the circumstances. In circumstances where the learned trial Judge appeared to only consider aggravating factors, a sentence of 30 years may be

5 considered manifestly excessive. See Abaasa Johnson & Anor v Uganda CACA No.33 of 2010

It is our finding that the phrases quoted reflected a mind that was influenced by only the aggravating the facts. As a result, the learned trial Judge did not pay attention to the mitigating factors 1O resulting into a sentence of 30 years. We find the sentence excessive and set it aside.

We shall proceed to compare the present case to cases based on similar matters. In Byera Denis v Uganda CACA No. 99 of 2012, this 15 Court substituted a sentence of 30 years imprisonment with one of 20 years imprisonment which it considered appropriate for the case of aggravated defilement. The victim in that case was aged 3 years. In Oeheng Michael v Uganda CACA No. 620 of 2014, this court upheld a sentence of 25 years imprisonment for the offence of 20 aggravateddefilement.

In Ronald Mutebi v Uganda CACA No.03B3 of 2019, on appeal, this court found a sentence of 23 years imprisonment appropriate where the appellant defiled a 6-year-old. The court took off the time that the appellant had spent on remand and sentenced the appellant to 25 20 years and 6 months'imprisonment.

Having set aside the sentencee we now proceed to determine an appropriate fresh sentence pursuant to the powers granted to this

Court under Section 1I of the Judicature Act, Ctp. 13. The appellant is a first-time offender, of an older age, he was aged 60 at the time of the trial. In aggravation, the victim was a young girl and the appellant was not remorseful.

- 5 In consideration of the aggravating factors and mitigating factors of the case, and in the interest of consistenclr we find that a sentence of 20 years is appropriate in the circumstances. From that sentence we shall deduct a period of 3 years, 9 months, and 24 d,ays that the appellant spent on remando leaving a sentence of 16 years, - 3 months, and 6 days imprisonment which the appellant shall serve from the date of conviction which is 20'h May 2016. 10 This appeal succeeds.

'We so order. g(

Signed and dated at Masaka this 6U^rof ... 2023.

20 Richard Buteera Deputy Chief Justice

]

Catherine Bamugemereire Justice of Appeal

Eva Appeal