[2022] UGCA 15

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CRIMINAL APPEAL NO. 439 OF 2015

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ARIA ANGELO::::::::::::::::::::::::::::::::::::

$\mathsf{S}$

#### **VERSUS**

$UGANDA \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \textbf{...} \$ 10

[Appeal from the decision of the High Court holden at Nakawa (The Honourable Lady Justice Elizabeth Nahamya) dated the 13th day of January 2015 in Criminal Session Case No. 50 of 2012).

### HON. MR. JUSTICE RICHARD BUTEERA, DCJ CORAM: 15 HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### JUDGMENT OF THE COURT

This appeal is from the decision of the High Court of Uganda sitting at Nakawa 20 in High Court Criminal Session Case No. 050 of 2012, in which Elizabeth Nahamya, J convicted the Appellant on his own plea of guilty on four counts of murder contrary to sections 188 and 189 of the Penal Code Act on count 1, aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act Cap 120 on count 2, attempted murder contrary to sections 204 (a) of the Penal

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⁵ CodeActoncount3andaggravatedrobberycontrarytosections2a5and236(2) of the Penal Code Act on count 4 and sentenced him to 36 years and 8 months imprisonment.

The facts as established by the prosecution before the trial court were that on the 30th day of May 201 1, the Appellant was depioyed at Master Industries BandaNakawatoguardthepremisestogetherwiththedeceasedKuchanRobert and Yuma Mawa. That night at about 11:00pm' the Appellant and others still at largewithmaliceaforethoughtunlawfullykilledKuchanRobertandrobbedhim of a mobile phone Nokia 1200. They also robbed Yuma Mawa of a mobile phone' earphones, charger, shs. 20,000/= and immediately before or thereafter severely beat him up, tied his legs and hands, celio taped his mouth and attempted to murder him. The Appellant was later in August arrested in Hoima He was found

in possession of a Nokia phone belonging to the deceased' The Appellant being dissatished with the sentence has now appealed against

sentence alone, having been granted leave by this Court to do so under Section 132(1) (b) of Tial on Indictments Act The Appellant in his sole ground of appeal 20 contends:

THAT the learned tiLal Judge ened in tau and fact uhen she failed to consider the mitigating factors thereby imposing a harsh and excessiue sentence upon the Appellant and thus occasioning ^a t-- ²⁵ miscarriage of justice

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## Re sentation

At the hearing of this appeal, the Appellant was represented by Mr' Mugtuen Ambrose holding brief for Mr. Richard Kumbuga' learned Counsel on state brief while Mrs. Emilg Mutuuzo Sendanuula and Ms' Caroline Nabaosa Hope learned

10 SeniorAssistantDirectorofPublicProsecutionsrepresentedtheRespondent' The Appellant was in attendance via video link to L;uzira Prison by reason of the restrictions put in place due to COVID 19 pandemic'

Both parties sought, and were granted, leave to proceed' by way of written submi ssions

# 1s Appellant's case

Counsel for the Appellant submitted that the sentence of 36 years and 8 months imposed for one count of murder, two counts of Aggravated Robbery and ore countofattemptedmurderwasharshandexcessiveinthecircumstancesaSto amount to an injustice since the Appellant pleaded guilty'

²⁰ CounselcontendedthattheAppellanthadexecutedapleabargainagreement which was presented to court for confirmation of sentence' The sentences agreed upon were 40 years on count 1 (murder), 35 years on count 2 (aggravated robbery), 20 years on count 3 (attempted murder)' 35 years on count ⁴ (aggravated robbery) hence a total of 40 years to run concurrently

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Counsel contended that following the Appellant's plea of guilty, the learned trial $\mathsf{S}$ Judge accepted the terms of the plea-bargaining agreement. She reduced the period of 3 years and 4 months spent on remand and sentenced the Appellant to 36 years and 8 months.

Counsel referred court to Rule 4 of the Judicature (Plea Bargain) Rules 2016,

for the definition of plea bargain to mean a situation where an accused agrees to 10 plead guilty in exchange for an agreement from the prosecutor to drop one or more charges, reduce a charge to a less serious offence and/or recommend a particular sentence subject to approval of court.

According to Counsel, it is the practice of Courts in Uganda, to exercise leniency where an accused person pleads guilty to any charge in order to encourage 15 others to do the same by owning up to the criminal responsibility.

Counsel faulted the learned trial Judge for having failed to consider the principle of uniformity and proportionality in sentencing whilst passing sentence against the Appellant. Counsel submitted that had she done so, she would have ascertained from the authorities of this Court and the Supreme Court that, the 20 sentencing ranges in respect of the offence of murder in similar circumstances is between 20 and 35 years. See Ndyomugenyi Patrick v Uganda Supreme Court Criminal Appeal No. 057 of 2016.

Counsel referred us to Tom Sazi Sande alias Hussein Saddam v Uganda Criminal Appeal No. 127 of 2009, for the proposition that in murder cases-

where an accused person pleads guilty, the Court has previously considered a $\mathsf{S}$ term of 18 years' imprisonment as appropriate for a charge of murder.

Counsel referred to Naturinda Tamson v Uganda, Criminal Appeal No. 025 of 2015 and submitted that in cases of aggravated robbery where the accused pleads guilty, court has previously confirmed a sentence of 16 years following a full trial.

According to Counsel, the learned trial Judge abdicated her role to participate in the plea bargain negotiations and further erred in law when she failed to apply the principles relating to the sentencing criteria for accused persons who have pleaded guilty thereby imposing an illegal, harsh and excessive sentence. See

# also Rule 8 of the Plea Bargain Rules supra and Luwaga Suleman alias 15 Katogole v Uganda, Criminal Appeal no. 858 of 2014.

Counsel prayed that this appeal be allowed and court be pleased to invoke section 11 of Judicature Act Cap 13 to set aside the sentence and substitute it with 18 years considering the time that the Appellant has spent in lawful custody.

#### **Respondent's reply**

The Respondent did not agree. It was submitted that the matter was conducted under the plea bargain arrangement in accordance with the Judicature (Plea Bargain) Rules, 2016 and the court considered all the mitigating factors. According to Counsel, the allegations that the Judge was harsh and did not offer 25 Page $\sqrt{5}$

ful

⁵ leniency to the Appellant did not arise since the discretion of the trial Judge in such cases is minimal as opposed to an ordinary trial'

Counsel referred court to Agaba Emmanuel and 2 Others v Uganda' Criminal Appeal No. 139 of 2ol7;l[Iange Robert v Uganda' Criminal Appeal No' ⁵⁷² of 2Ol4 and Sempijja Brian v Uganda, Crimlnal Appeal No' 566 of 2OL4' where the trial judges departed from the sentences agreed upon in the plea bargainandthisCourtfoundthattheSentencesimposedontheAppellants outside the agreed terms of the plea bargain agreement were illegal'

Counsel referred court to Agaba Emmanuel and others v Uganda' Crlminal Appeat No. 139 of 2OI-7 for the proposition that plea bargaining creates an agreement between the prosecutor and the accused with all the features of an agreement in the law of contract and the court plays the role of a regulator of the agreement to ensure that the agreement conforms to the needs of justice of the case. Further that court is not privy to the agreement and the court may reject the agreement where it miscarriage of justice. is satisfied that the agreement may occaslon ^a 15 20

Counseicontendedthatbecauseoftheseriousnessaccordedtoapleabargain' rules prohibit the substitution of a judge-imposed sentence in the context of the plea bargain. As a result, the learned trial Judge can neither be faulted for being harsh, nor for failing to give a lenient sentence because the sentences were

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agreed upon by the parties, and any alteration of the plea bargain would not $\mathsf{S}$ have been in contravention of the Judicature (Plea Bargain) Rules, 2016.

Counsel further contended that maximum penalty for murder and aggravated robbery under the Penal Code Act Cap 120 is death whilst the maximum sentence for attempted murder is life imprisonment. She argued that considering the facts of the case and following negotiations, the Appellant was spared the

maximum sentence and given a custodial sentence regardless of the fact that life was lost, property stolen and one other person was severely injured.

Counsel concluded that the sentence of 36 years and 8 months' imprisonment should be maintained and the appeal be dismissed.

#### **Resolution** 15

This is a first appeal and as such this Court is required under Rule 30(1) (a) of the Judicature (Court of Appeal Rules) Directions to re-appraise the evidence and make its inferences on issues of law and fact while making allowance for the fact that we either saw nor heard the witnesses. See: Pandya v R [1957] E. A. 336, Bogere Moses and another v Uganda, Supreme Court Criminal Appeal No. 1 of 1997 and Kifamunte v Uganda, Supreme Court Criminal Appeal No. 10 of 1997.

It was submitted for the Appellant that the learned trial Judge did not take into consideration the mitigating factors and the principle of parity in sentencing the Appellant. In reply, Counsel for the Respondent submitted that the learned trial

$\mathcal{Q}$ s Judge considered the mitigating factors and came to the right conclusion that ^a termof36yearsand8monthsimprisonmentwasasufflcientSentenceasagreed upon by the parties in the plea-bargaining arrangement'

ThepracticeofpleabargainingisregulatedbytheJudicature(PleaBargaln) Rules, 2016. Rule 4 of the Judicature (Plea Bargain) Rules delines plea-

- 10 bargaining to mean, the process between an accused person and the prosecution, in which the accused person agrees to plead guilty in exchange for an agreement by the prosecutor to drop one or more charges' reduce a charge to a less serious offence, or recommend a particular sentence subject to approval by Court. - 15 20 Once parties conclude the plea-bargaining process' the said process is reduced into a plea bargain agreement which is defined under Rule 4 of the Judicature (Plea Bargain) Rules to mean, 'an agreement entered into betuteen the proseattion and an acansed person regarding a charge or sentence against an acansed person.' This means that the plea-bargaining process is intended to benefit the accused, the victim and the state'

In the instant appeal, the Appellant was on his own plea of guilt convicted of one count of murder, two counts of aggravated robbery' and one count of attempted murder and sentenced to 3years imprisonment foliowing a plea bargain agreement

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⁵ Inorderforan.agreementtopleadguilty,tobevalid,theaccusedmust(i)accept thepleabargaininfullawarenessofthefactsofthecase;(ii)accepttheplea bargain with full awareness of the legal consequences; and (iii) accept the plea' bargain in a genuinely voluntary manner'

Rule 8 of the Judicature (Plea Bargaln| Rules provides for Court,s participation in the plea-bargaining discussions lt provides that;

'the parties shall inform Court of the ongoing plea bargain negotiations and shall consult the Court on its recommendations uith regard- to the possible sentence before the agreement is brought to Court for approual and recording''

20 15 The rules give the judicial officer the opportunity to superintend over the proceedings to ensure there is no miscarriage of justice or abuse of the process making it a mockery of justice' The judge or judicial officer may recommend ^a particular sentence which in his or her opinion serves the justice of the case' Theabovenotwithstanding,thejudicialofficerdoesnothavethediscretionto impose his or her own sentence'

We note that under the rules, an accused person is at liberty to reject the proposal by the trial judge if it is not in his favour and opt out of plea bargain' Inotherwords,pleabargainlimitsthediscretionarysentencingpowersofthe judicial officer. However, where the court is satisfied that the agreementray

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occasion a miscarriage of justice, it may reject it under rule 13 of the Rules and $\mathsf{S}$ refer the matter for trial subject to Rule $8(3)$ .

We are persuaded by the High Court's decision in Inensko Adams v Uganda, HCCA No. 004 of 2017 where it was stated that:

"Like the name suggests, ideally plea bargain should be at the time of plea taking to enable the state, the accused and defence counsel $10$ agree on amending the charge sheet or indictment where necessary with a view of dropping some counts if they are multiple, reducing the charge to a minor cognate offence, using accused as state witness or taking responsibility of the criminal conduct early enough etc. before taking plea. 15

> It is very important that an accused who wishes to plead guilty whether under plea bargain or not should be explained properly about his or her constitutional rights to a fair trial and confirm that his plea is unequivocal with full knowledge of the consequences there of. The court is obliged under the rules to embrace plea bargain any time before sentence when either party before it expresses interest in the process unless it is intended to pervert the cause of justice."

[Emphasis, Ours].

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## See also Luwaga Suleman alias Katongole v Uganda, Criminal Appeal No. $\mathsf{S}$ 163 of 2014.

From the review of the Rules, the same do not provide for a particular form of consultation with the court. Further from evidence on record, there is no indication at all that the parties consulted the trial Court on its recommendations with regard to the possible sentence before the agreement was 10 brought to Court on the 23^rd June 2015 for approval and recording contrary to the provisions of Rule 8(2) which are couched in mandatory terms. Nonetheless, the Plea-bargaining agreement was presented in court in the presence of the Appellant and the trial Judge still remained with the discretion to either allow or

reject the sentences proposed for each count under the plea bargain 15 arrangement.

Rule 13 of the Judicature (Plea Bargain) Rules, 2016 provides for rejection of plea bargain agreement. The said rule states that;

"The Court may reject a plea bargain agreement where it is satisfied that the agreement may occasion a miscarriage of justice."

While sentencing the Appellant, the learned trial Judge agreed entirely to the sentences as agreed by the parties in the plea bargain agreement on each count of the offences for which the Appellant was charged with. She proceeded to consider both the mitigating and aggravating factors of the case and finally

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⁵ sentenced the Appellant to a total sentence of 4O years on one count of murder' two counts of aggravated robbery and one count of attempted murder'

It is now settled that for the court ofAppeal, as a flrst appellate court, to interfere with the sentence imposed by the trial court which exercised its discretion' it must be shown that the sentence is illegal' or founded upon a wrong principle of the law; or where the trial court failed to take into account an important matter orcircumstance,ormadeanerrorinprinciple;orimposedasentencewhichis harsh and manifestly excessive in the circumstances' See: Kamya Johnson Wavamuno v Uganda, Supreme Court Crlmlnal Appeal No' O16 of 2OOO (unreported); Kiwalabye Bernard v Uganda, Supreme Court Crlmlnal Appeal I{o. 143 of 2OO1 (unreported) and Kalyango Achileo and Another v Uganda' Court ofAppeel Crimlnal Appeal No' 637 of2015'

We find that the sentence agreed upon by the parties in their plea bargain agreement was valid. The Appellant was sentenced to a custodial term of imprisonment which he agreed to in the plea bargain agreement and which sentences were less than the maximum sentences for the offences committed' HadthelearnedtrialJudgefoundthesametobeharshorexcessive'shewould have rejected the same with reasons and ordered a full trial'

In the instant case, and having found that the Plea Bargain Agreement was valid' we hnd that the interest of justice will best be served by maintaining the sentence

²⁵ agreed upon by the parties under the plea bargain arrangement'

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Having deducted the period of 3 years and 4 months that the appellant had spent $\mathsf{S}$ on remand, the learned trial Judge sentenced the appellant to 36 years and 8 months on all the 4 counts to run concurrently. We find no reason to interfere with the said sentence and we hereby maintain the same.

We so order.

2022. $\dots$ day of Dated at Kampala this...

## **RICHARD BUTEERA**

## DEPUTY CHIEF JUSTICE

$10$

**ELIZABETH MUSOKE**

JUSTICE OF APPEAL

$20$

**CHEBORION BARISHAKI**

JUSTICE OF APPEAL

$25$

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