R. v. Kaduchi Bulolo, Crim. Rev. 41-M-69, 19/12/69, Seaton J.

R. v. Kaduchi Bulolo, Crim. Rev. 41-M-69, 19/12/69, Seaton J.

The accused was convicted on his own plea on two counts of burglary and rape. He was sentenced to 3 years imprisonment and 24 strokes corporal punishment on the first count and 3 years imprisonment and 12 strokes on the second count, the sentences to run consecutively. The sentences were sent to this Court for confirmation.

            Held: (1) “According to s. 10 of the Corporal Punishment Ordinance Cap. 17, when a person is convicted at one trial of two or more distinct offences, any two of which are legally punishable with corporal punishment, only one sentence of corporal punishment may be passed in respect of all the offences. As the imposition of corporal punishment is mandatory for the offences of burglary under the Minimum Sentences Act, while Corporal punishment is a discretionary penalty for offences of rape, I propose to set aside the order of 12 strokes on the second count in order not to offend against s. 10 of the Corporal Punishment Ordinance. It is so ordered.” (2) “In ordering the consecutive sentences of imprisonment, the trial Magistrate realized that he was breaching a well-established principle, that offences committed in the same transaction should carry concurrent sentences. However, he felt justified in doing so because of what he considered to be the very exceptional circumstances of this case. The Magistrate referred to Regina v. Kasongo s/o Luhogwa (1955) 2 T.L.R. 47, 48 where Lower J. observed that consecutive sentences would be justified in a case where a person commits the offense of house-breaking and rape. Lowe J. himself cited as his authority the case of Rex v. Sawedi Mukasa s/o Abdulla Aligwaisa 13 E.A.C.A. 97 decided by the court of Appeal in 1945. the relevant passage in the judgment in the latter case is the following: “While we recognize that the accused is a hardened criminal deserving of a severe sentence, our view is that where, as here, both offences have been committed at the same time and in the same transaction, the practice referred to should be adhered to save in very exceptional circumstances, where, for instance, a person breaks and enters a house and commits the felony of rape therein where an order that the sentences on both counts might be directed to run consecutively.” It is clear from a perusal of the two cases above cited that the dicta were obiter …… one can imagine instance in which a person breaks into a house with the intention of committing one felony, for example theft, and while inside the house commits a different felony, such as rape. In such a case, although both offences may have been carried out at the same time and in the course of the same transaction, the circumstances may be considered as exceptional as to justify consecutive sentences. It is no clear whether such circumstances were in the mind of Lowe J. in Kasongo Luhogwa’s case or of Sir Joseph Sheridan, C. J. who delivered the Court of Appeal’s judgment in Sawedi Mukusa’s case. Both judgments elaborated upon the distinction between burglary with intent to commit rape and burglary with intent to commit theft which should made the former require exceptional punishment. The trial magistrate considered the present case to be “a very exceptional type of rape” justifying severe and consecutive sentence. The admitted facts were that the accused, who is a male aged about 35 years on the night of 12^th September, 1969, forced open the front door of a house and had sexual connection in quick succession with two girls whom he found therein. The girls were aged 121/2 and 13 years respectively. The accused threatened them with a knife and thus secured their submission. Medical evidence showed that as a result of the rape, one girl’s

Hymen was broken and both girls had vaginal infections indicated by pus cells. The accused readily admitted his crime but claimed to have been drinking after which he decided to go to these girls. He is a first offender and unmarried. No mitigating factors in the accused’s favour were investigated by the magistrate who seems to have been under the impression that he was precluded from doing so by the authority of Kasongo Luhogwa’s case. Thus he did not consider whether the degree of guilt might be reduced by the fact that the accused had been drinking prior to the commission of the offence; nor whether his plea of guilty might be an indication of contrition. For the reasons I have attempted to set out above, I am of the view that there is nothing in either of the two cases previously cited which compel a court to treat like every case involving burglary and rape in the same transaction and therefore to impose consecutive sentences of imprisonment; whether in such trial court on the particular facts of each case and the circumstances of the accused. I bear in mind that burglary and rape are grave crimes, the latter punishable with a maximum of life imprisonment. However, in the circumstances of this case, I am of the view that the sentences were excessive.” Sentences varied to 4 years for burglary and 3 years for rape, to run concurrently.