offences involved, and concluded (p. 139 of the Record) that " under the circumstances of [this] case, the sentence imposed is justified and is reasonable." Whereas the appellant in the NYABALLY case had been convicted of house breaking and stealing and issue of whether the magistrate court w as right to have had raised in his appeal the .. ' imposed two separate sentences, in this case the offence involved is rape. The two cases are by the nature of the offences involved clearly distinguishable: and therefore attract very different considerations regarding sentence. .. ' I. l ... , Addressing the issue of the sentencing discretion of the' triaf judge, the·lower court said I that- •tllilllll . •' "'l'l'l'll'll· I • ' I lllllllljjllllll , ''''lllllill'' lll!llh. lit. "In any event, the type of ''s,entence to impose,after a conviction is always at the ,. J discretion of the trial judge. I Discretion as,1was held in the case of MINISTER OF I PETROLEUM V. EXPO SHIPPING LTD. [2010] 42 NSCQR on page 1025 " ... is not ,J • • • II ft • • an indulg enlce of, a judicia( whim, but the exercise of judicial judgment, based on I facts a\\1 guided .1'Jiaw or:t he equitable decision ..." t l. 'f • .,,tllhh It is trite that appellate I .•c0urts w JIIilno.t interfere jJith the exercise of discretion by the trial court, unless it is . , Ill• Ill' ' l lh .11 shown that the;exercise of such discretion was arbitrary. ,,, · (1l1lh •IIIIIIII! • , IIIIJI 11 1 l f;1,HAMZA . V KURE [2010] 42 NSCQR on page 598 that " ... where the decision of court is substantially based on the exercise of discretion, an appellate 11 ,. , Iii. I• court will not interfere with the decision unless the court failed to exercise its h 11 '••I 1 l!Jitl:jl1 1 lilt·1 111111 = the case · 0.0. Adekeye JSC held in 11 ,discretion judiciously or judicially but exercised same frivolously or arbitrarily. In I . view of the fact that discretion is aiWf1¥s unfettered, an appellate court cannot take steps to fetter such discretion except for the foregoing reasons ..." Page I 7 SC , '0. 2/2012- NFA!'>'1ARA SAIDYKHAN VS THE STATE -]:!!!..MAY 2015 - @- - 2 -- ltlh