[2023] UGCA 70

# -I'IIE REPUBI-IC OI.' UGANDA IN TIIE COURT Ol'- AI']PhAl- OF UGn NDA AT MBAI-h CI{lMlNAl- API']hn L No.l48 of 2016 (COllAM: I l. Obura, C. llamugcmcrcire 6s C. Mzrdrama,J. JA)

EMWODU AMOS AI)l']lrli-n N-l-VITRSUS

Ii(;n NI)n RIISPONDITNI' (Appcal from rhc dctision of I lcnricrta Wolayo./, datcd 2Vh April 2016 in Criminal Session No. 157 o[2015 holden at Soroti tligh Courr)

# UDGMENT OF THE COURT

1-hc appellant, Amos l:rnwodu was indicred for thc oflfcncc o[ Murdcr contrary to sections 188 and 189 of the Penal Code Act. lt was alleged that on the 23'd day of September 2015 at Opiyai 'A' village in the Soroti district, Amos Emwodu, Agnes Adwongo ancl Samuel Odongo, with malice aforethought unlawfully caused the death of Christine Akunyo. 15

### Background

- The brief background to this appeal is that on the 2J'd o[ Scptember 2015 Amos Emwodu, the appellant and 2 others violently attacked the Akunyo and with the use of sticks, assaultccl and fatally injured her. She succumbcd to the injuries artributcd to the violcnt assault. Subscquently, the appcllant was indictcd with the offence of N4urder c/s 188 and a89 of the PCA. tJe pleaded guilty under a plea 20 - bargain agreement and rvas sentenced to imprisonment for a period of 20 years. Dissatisfied, thc Appcllant appcalcd against sentcncc only. The sole ground of appeal as set out in thc N4emorandum o[ Appeal is as follows; 25

That the learned trial Judge erred in law and fact when she imposed ^a scntcncc o[ 20 ycars' imprisonmcnt on the appellant through thc plea bargain procccdings against his wi Il which occasioned a miscarriage of justice.

### Represcntation

At the hearing of thc appeal the appel-lant was represented by Ms Agnes Wazemwa, on State llricf while Mr. Frank Aine a State Attorney in rhe Office of the Director of Public I)rosccutions represented the Respondent. Counsel for the

5 appellant sought leavc of this court to appeal against sentence only and to vaLidate the Memoranclum of appeal which was filed out of time . Counsel for rhc respondent had no objcctions to the prayers sought by counsel for the appellanr.

There being no objection from the respondents, this court granted leave to the appellant to file the nrcrnorandum of appeal out of time and granted leave to the appellant to appeal ag;rinst sentence only. Both counsel for the respective parties filed written submissions, which have been relied upon by this court in arriving at its decision.

### The Appellant's Subrn issions

Counsel for rhe appellant submitted that upon committal to the High Court, the appellant requested to participate in a plea bargain session and on 19th April 20t6. He signed a plea bargain agreement to serve a period of 15 years' imprisonment. It was counsel's contcntion that upon being produced in court for confirmation of sentence, the court rejected the sentence of 15 years and imposed upon the appellant a sentence o[ 20 years' imprisonment against his will. 15

Counsel submitted thlt ir is trite that the appellate court is not to interfere with the sentence imposecl h1,the trial court unless the sentence imposed is manifestly excessive or so low irs [o arnoun[ to a miscarriage of justice or where the trial court ignorcs to consiclcr an important mattcr or circumstanccs which ought to be considered while passing sentence or where the sentence imposed is wrong 20

in principle as was hclc[ in Kiwalabye Bernard v Uganda SCCA No. 143 of 2001. Counsel circd rulc 4 o[ thc Judicaturc (Plca Bargain) Rules, 2016, lvhich provides that the plea hargaining process is bctween an accused person and the

prosecution. Further that rule 8 warrants the court's participarion in plea bargaining discussions. Il.ule 8(2) provides that parties shall inform courr of the ongoing plca bargain negotiations and shall consult the court on its recommendations with regard to possible sentences before the agreement is

⁵ brought to court for approval and rccording. He cited l-uwaga Suleman aka Katonsolc v Usandit (lnCA No. 858 o[ ²⁰¹⁴ wherc court found that failure of the Resident Statc Attorney to consult the court through the process of pleabargaining prior to bringing the agreement to court for approval and recording was in contravention ()l'the law. And thar court had a right to reject the sentence as it had occasioncd a rr iscarriage ofjustice."

Counsel submitted th:rt in the present case, the record did not indicate whether there was partic\rati()n o[ court in the process before the agreement was signed. He stated that what u its clear was that there was an inirial recorded sentence of 15 years which was altcred to 20 years by the trialJudge.

- It was counsel's ai,crnrcnt that under rule 13 of theJudicature (Plea Bargain) Rules, whcre court rc.i('cts a plea bargain agreement, it is required to record the reasons for the rejcctit,n and then refer the matter for trial. Counsel argued that in this case, the trial.lr-rclge rejected the appellant's negotiated sentence of I5 years and went ahead to irrl'rosc a sentence of 20 years, which was contrary to the law and occasioned a miscrrrriage ofjustice. Counsel submitted that the trialJudge 15 20 - could have referred thc rnatter for trial in rhe stead.

Counsel further cont crrclcd that the appellant was remorseful and had pleaded guilty at thc carlicst o1'rportunity without waiting for a protracted trial. Counsel added that the appcllrrnt was 22 years old at the time of commission of the

25 offence, a [irst timc ollcrrdcr and an IllV/AIDS victim who suffers from asthma and epilepsy. It r,r,as counsel's submission rhat the trial Judge did not consider these mitigating [rct(]r's while imposing the sentence against the appellant thus occasioning a misc:rrrirrgc t-rf justice. Counsel furthe r contended that State did not submit on any a&qravating factors yet the rrial Judge formulated her own which she based to senrcnce the appellant to 20 years.

Counsel prayed that thc sentence of 20 years be set aside and a lenient and reasonable sentencc be handed to the appellant.

#### The Respondent's Su brnissions 5

In reply, counscl for thc rcspondent contended that the appellant agreed to ^a sente nce of 20 ycars' irr prisonmenr in rhe plea bargain agrecment. His submitted that the allcgation ol rrurccing to 15 years is a clear afterthought. Counsel made reference to Aria Angclo v Uganda CACA No. 439 of 2015 where court stated that for an agreenrcnt t o plcad guilty to be valid, the accused must;

- i. Accept thc plca bargain in full awareness of the facts of the casc. - ii. Accept thc plca bargain with full awareness of the legal consequences. - iii. Accept thc plcrr b:rruain in a genuinely voluntarily manner. - Counsel added thrrt rulc 8 provides for court's participation, however, this participation is not cmhcclded anywhere in form of particularization and style in rhe rules. Refcrencc u as rnade to Lwanga Suleiman alias Katongole v Uganda SCCA No. 858 ot'2014 rvhcre court noted that; "from the review of the rules, the same do nor providc for a particular form of consulcacion with the court. 15

20 lt was counscl's avcnro 11t t hat this matter was conducted under the plea bargain agreement ancl in at corclurrce with theJudicature (l']lea tlargain) I{ules 2016 and further tha[ court consiclcrcd the mirigaring factors and aggravating factors.

Counsel contcnclccl that u'hat appeared on the record as the initial 15 years is ^a merc typographical crror rvhich was being corrccted by the trialJudge inserting 20 years as agrcccl by thc grirrties. He added that the 20 years'sentence was not

an imposition by thc trial ludge as alleged by counsel for the appellant. Counsel averred that the appellant agreed to the 20 years' imprisonment and signed the agreement aftcr consultation with the court. 25

It was counsel's sr-rbmission that the sentence of 20's imprisonment is not in any way as harsh as thc rnaximLlm sentence in murdcr cases. The maximum sentencc for rhe offence of nrurder is death. Counsel submitred rhar this court shou]d [ind that the plea bargain agrecment was entered into legally and what appears on the record are merc corrections of court which cannot be a ground to invalidate

# the agrecmcnt be t'uvccn thc parties. Counsel prayed that court be pleased to dismiss this appcal and uphold both conviction and sentence accordingly.

## Considcration o[- (]or"rrt

Concerning thc onll' qround o[ appeal, the appellent faults the rrial judge for diverring from the tcrms nl'im prisonmcnt agreed upon in the plea bargain agreement. Counsel for the resgrndcnt subrninccl thrt the n:ialJudge sentenced the apprllant accordinpl to the terrns agrccd uprn irr thc plca bargain agreement. We have carefuliy considered the submissions of counscl, Lhe rccord and authoriries availed to us. We are alive to the duty of this court as a first a1-rpcllate court to reappraise all the material that was made availablc at trial and corlc up with our own infercnces o[ law and fact. (See Kifamuntc Henry v LJgand:r SCCA No. l0 of 1997). 15 10

The principlcs u1-nn rvhich iur appellate court may interfere with sentence imposed by the rrial c()Llfi wcrc cr)nsiclerccl in KamyaJohnson Wavamuno v Uganda SCCA No. 16 of 2000, rvhcrc thc Sr-rPrcnrc Court laid down guidelines as follows,

'1.. It iswcllscttlcd thatthc ctttnt of ,\ppalwtllnotinteferewrthrhecxodxof discretionunlasthaeha beot ^afaihrt'c to tahc i,ll( ) rlccr )U,lt (r , naterial consida'atio\ or dn et'ror in pnncipleww made ltwas not sufficicnt thut thc ncnthcrs ofthc cnuft wouldha\)e cxrrcivd thar r]iscretion cliJt'aently." 20

In the insLant appcrrl, counscl for the appellant contended that the sentence o[ imprisonnrcnt to 2()),crrls rvas illegal considcring that the trial Judgc sentenccd

the appcllrrnt orrtsiclc thc plca bargain agreement. 25

The pract icc ol plcrr baruain is regulated by theJudicature (Plea Bargain) Rules, 2016. l)lcrt'barrrrin is clclincd under rule 4 to mean the process of negotiation

betwecn :rn accuscrl p('r's()n and the prosecution, in which the accused person agrees t(r plcacl gLrilty rrr cxchange for an agreement by the prosecutor to drop one or nrorc ch:trgcs, rcclucc a charge to a less serious offence, or recommend ^a particular scntcncc subjcct to approval by Court.

- 5 Wherc l l"rargain is rcire hr'r I but one of the parties, is not agreeable, (rhe court inclusivc), rulc l3 o[ r hc.fudicature (Plea Bargain) Rules, 2016 provides for rejection trl such Plcu hrrrt:rin agreement. The said rule states that; - l. -l'hc Courr rnay rcjct t a plea bargain agreement where it is satisfied that tlrc agrccrrcnt rlr11, or'casion a miscarriage of justice. - 2. Whcre t hc court lci.cts a plea bargain agreement-10 - rr. It shlll rcc,,rrl the reasons for the rejection and inlorm the parties. - b. -l'hc rgrccnrcnt shall become void and shall be inadmissible in sul',scque nt r rial proceedings or in any trial relating to the same fact s, and - 15

c. -l hc rlattcl slr;rll be referredfor trial subject to sub rule 8 (3).

The implicarion o[ thc rrl'rrrve rules is that the trial Judge is not to alter the sentencc agrcccl Lrpon h1' t he parties but may reject it under rule l5(3) of the Judicatrrrc (l'lt':t llarg;rirr) Rules,2016 if he or she is of opinion that the particulrlr circurrrsLirnces ol a case deserve a more severe sentence, in which case the mat tcr woulr I cit hcr Sr, on full trial or the parties would enter a new bargain.

In thc in.t:rnt r':r.e , u c r',rrL'lully perused the plea bargain agreement on the record andobscn'cd th,rt unclcr tlre provision of sentence, there was an alteration wherc whitcu',rsh u'rts :rpplicrl l rr rvhat would appear to have been the figure l5 years but was rvhitcu:rshccl ;rnd indicated as 20 years. The trial Judge did not

countcrsign on t h;rt :rltcr;rt ion. Further still, in the final sentence, the trialJudge canccllccl thc scnt cncc ol I j years using a pen and indicated twenty, above the ¹⁵ and furt hcr clnt cllccl Irrrrrt cen years and indicated nineteen above the flourteen. 25

No count crsign i ng rvls nr:rr lc on the alterations either. For clarity, we shall quote it verbat irn bclou'.

# UGNNI)AVEMWoDI]AMOS

The violcnt attacl< on t hc deceased that left her dead attracts a custodial sentcncc. 'f hc right to li li' must be protected.

Approlrriate scnl cncc is {ifteen years (sic altered rotwenty). As accused has been orl rcmarrrl sincc ScpEember 2015, he is sentenced to fourteen (src altercl t tt ninctcc n ) yca ls and six months' imprisonment.

Datcd irt Soroti t his 27't' ,lly of April 2016.

Sigrrcd,.ludgc. 10

The abovc alterations ar'\' indicative of a process that was not complete. We respectlully fincl lrrrrlr rr rrlr the manner in which the trial Judge allowed the nhslsgirrrrs to alrl)crrr on the record. Under these circumstances, we are persuadccl to givc t hc appellant the benefit ofdoubt regarding his allegation rhat

the sentcnc'c carli('r' :lqrc('d to was 15 years' imprisonment. 15

In Wangrvc llobt'rt v tjganda CACA No. 0572 of 2014, chis court held that;

"With clrrc rcspcct rve lincl that the trialJudge erred when she sentenced rhe appellant rr-rtsidc t lr,' plcrr I,ergaln agreement, to his prejudice. According to the court rcr'()rLl, thc p.1l-1iqs hacl participated in a plea bargain agleement whereby

they agrcccl upon ir scntcncc of 15 years but the trialJudge enhanced the sentence to 18 ycrrrs rrncl I(r nr,rnths. I laving done so, we find that the learned trial judge imposctl :rn illcgl I s('nrcncc on the appellant. The sentence is therefore hereby set aside." 20

In Rcv. I:;rt hcr S:r rr los \\/aPokra V Uganda, CACA No.204 of 2012, wherc this court t\ p Jrlitlctl t lr,' 1,1p1',11"6 o[ a retrial thus;

"The overriding purpose of a retrial is to ensure that the cause of justice is done in a case before Court...however that must ensure that the accused person is not subjected to double jeopardy, by way of expense, delay and inconvenience by reason of the retrial. Other considerations are; where the original trial was illegal

- or defective...the expense of the new trial to the accused, the fact that any $\mathsf{S}$ criminal trial is an ordeal for the accused who should not suffer a second trial, unless the interests of justice so require and the length of time between the commission of the offence and the new trial, and whether the evidence will be available at the new trial." - In this appeal the, Emwodu, the appellant protests the enhancement of his 10 sentence from imprisonment of 15 years to imprisonment for 20 years. Clearly, the Plea Bargain Argument indicates that there was an alteration and a change of mind. The sentence typed into the record was imprisonment for 15 years. The sentence altered in pen was 20 years. This change of mind was not communicated through the right channels. Sometimes trial Judges rescind the 15 agreement. If this is the situation, the communication has to be made to the prosecution and the accused. A fresh bargain must be entered. A trial court cannot unilaterally alter the sentence earlier agreed upon. What seems to have - happened in this case is that the trial Judge reneged on the agreement reached but did not inform the parties. In the circumstances we are inclined to believe 20 the appellant, as shown on the record, he accepted a Plea Bargain resulting into a sentence of imprisonment for 15 years.

We therefore allow this appeal and set aside the sentence of imprisonment for 20 years imposed by the trial Judge since this was not what the appellant bargained. We now invoke the powers of this Court under section 11 of the Judicature Act to sentence the appellant afresh based on the plea bargain agreement that was duly signed by both parties. The parties had agreed on a sentence of 15 years. We accordingly sentence the appellant to 15 years, less the

time he had spent on remand. We recognize that the appellant was remanded on the 1^st October 2015. His total time spent on remand before conviction was 7 months and 26 days.

When the time spent on remand, the 7 months and 26 days, is subtracted from the sentence of imprisonment for 15 years, the appellant shall serve a sentence of imprisonment for 14 years, 5 months and 4 days effective from 27^th April 2015.

This appeal succeeds and the appellant shall serve sentence on the above terms.

We so order Dated at Kampala this....................................

$\mathsf{S}$

15 Hon. Lady Justice Hellen Obura Justice of Appeal 20 Hon. Lady Justice Catherine Bamugemereire $25$ Justice of Appeal $\mathcal{L}$ $7$ $\chi$ ^$\cdot$ 30 Hon. Mr Justice Christopher Madrama

Justice of Appeal