[2023] UGCA 401

#### THT RTPUBLIC OF UGANDA

# IN THT COURT OF APPEAL OF UGANDA AT FORT PORTAL Coram: Buteerao De,. I, MulyagonJa & Lusutatar,.trIA CRIMINAL APPIAL NO. 7O8 OF 2OL4

KIUIANUKA IRTYA ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

{An appeal trom the declslon of Lamcck Mukq,sa, J delTaered. on 26th Mag 2074 at No,kauta ln Kampala Htgh Cour-t, Crlmlnal Cq.se No. 273 of 2073]

#### JUDGMENT OF THE COURT

### Introduction

,t5 The appellant was indicted on two counts of aggravated defilement. On the 4th June 2014, he entered into a plea bargain agreement with the prosecution and pleaded guilty to both counts of the offence.

#### Background

20 The facts that the appellant pleaded guilty to as stated in the plea bargain agreement were that the victims, LN and MN were aged 7 and 8 years old, respectively. They resided with their parents in Bakijurura Village, Namugongo Parish in Mubende District. The appellant worked at a hair dressing salon in their neighbourhood.

It was stated that early in the morning on 14th December 2012, the mother of the victims noticed that LN who was naked had a whitish pus-like substance flowing out of her private parts. She advised her to take a bath 25

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but the following day she observed the same thing. In addition to that, LN was limping. She thus became suspicious and examined her private parts and found that the child was "rotting." LN then revealed that MN was in the same condition. When the mother examined her, she found that MN had a smelly pus-like discharge flowing from her private parts.

The children then revealed to their mother that a few days earlier, at 7.00 am when they were going to the toilet, the appellant waylaid them and subjected them to sexual intercourse in the bathroom. That both victims did not disclose this because they were afraid of the appellant. The mother relayed this information to the victims' father. The parents knew the appellant very well before the incident because he was a barber who had a hair salon in the building in which they lived. The appellant was arrested and the victims subjected to medical examination which established that both of their hymens were raptured and they had a discharge like pus flowing out of their private parts. The appellant was also examined and found to be of normal mental status.

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The appellant was charged with 2 counts of aggravated defilement. He entered into a plea bargain agreement wherein it was agreed that he was to serve a sentence of 20 years' imprisonment on each count, to run concurrently, inclusive of the pre-trial remand period of one year and four months. The trial judge however, sentenced him to 13 years and 8 months' imprisonment on each count, to run consecutively, all amounting to a sentence of 27 years and 4 months' imprisonment. Dissatisfied with the sentence, he appealed against it in one ground of appeal as follows:

1. That the learned trial judge erred in law and fact when he convicted and sentenced the appellant to a manifestly harsh and excessive cumulative sentence of 27 years' and 4 months' 25

imprisonment on two counts contrary to (the) concurrent20 years that had been agreed in the plea bargain agreement.

#### Representation

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At the hearing of the appeal on 6th September 2022, Mr. Samuel Muhumuzafrom the Legal Aid Project of the Uganda Law Society, Kabarole Branch, represented the appellant on State Brief. The respondent was represented by Mr. Joseph Kyomuhendo, a Chief State Attorney from the Oflice of the Director of Public Prosecutions. The appellant was present in Court. Mr. Muhumuza prayed that he be allowed to appeal against sentence only and his prayer was granted. 5 10

Counsel for both parties filed written submissions as directed by the court before the hearing. They were adopted by court as their final submissions and this court disposed of the appeal on the basis of the written arguments.

## 1s Submissions of Counsel

20 25 Mr. Muhumuza argued that his client entered into a plea bargain agreement with the prosecution wherein a sentence of 20 years' imprisonment on both counts, to include the period of 1 year and 4 months spent on remand, would be imposed. It was agreed that the sentences would run concurrently. He further stated that when the appellant appeared before the trial judge for confrrmation of sentence, the judge sentenced him to 13 years and 8 months' imprisonment on each count. That it was also ordered that the sentences run consecutively making it 27 years and 4 months' imprisonment, which was beyond what had been agreed upon.

Relying on Rule 4 of the Judicature (Plea Bargain) Rules, 2016 and the decision of this court in Agaba Emmanuel v Uganda; Criminal Appeal

No. 139 of 2017, counsel urged court to invoke its inherent powers to set aside the sentences imposed by the trial court. And that pursuant to section 11 of the Judicature Act, the court do replace them with the sentences that were agreed upon in the plea bargain agreement. He also prayed that the period spent on rem€urd be deducted from the sentences.

In reply, Mr. Kyomuhendo for the respondent conceded to the appeal and stated that the sentences offended rule 13 of the Judicature (Plea Bargain) Rules 2016. He referred to Wangwe Robert v Uganda Criminal Appeal No. O572 of 2Ol4 and submitted that the sentences imposed by the trial judge offended the non-departure principle and were therefore illegal. He too prayed that this court sets aside the sentences and there and then resentences the appellant according to the plea bargain agreement. 10

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#### Determination of the Appeal

The principle that this court will only interfere with a sentence imposed by the trial court when it is illegal or founded on wrong principles of law has been long settled. The court will also interfere with the sentence where the trial court has not considered a material factor in the case; or has imposed a sentence which is harsh and manifestly excessive in the circumstances. [See Kiwalabye Bernard v Uganda Supreme Court Criminal Appeal No. 143 of 2OOL (unreportedf, Bashir Ssali v Uganda [2OO5l UGSC 2L and, Livingstone Kakooza v Uganda ll994l UGSC 171.1 We took cognizance of the principles above in disposing of this appeal. 15 20

We note that counsel for the respondent conceded to the appellant's submissions that the trial judge did not follow the terms of the plea bargain agreement and that the sentence ought to be set aside because it was illegal. We perused the plea bargain agreement which appeared at pages 13-16 of the record of appeal. We observed that according to clause 5.2 thereof, the recommended sentence was stated as twenty years for each count to run concurrently (to include the period spent in lawful custody). However, on sentencing the appellant, the trial judge related the relevant evidence that implicated him and then ruled thus:

"In mitigation counsel submitted that the convict is of a youthful age of 19 years at the commission of the offence, remorseful and had pleaded quilty *without wasting court's time.*

*In allocutus the convict stated that both his parents had died and (he was)* taking care of his siblings aged 7 years, 9 years and 12 years.

The offence carries a maximum sentence of death, under the sentencing guidelines the sentence range from 30 years with a starting point of 35 *years imprisonment.*

*The prosecution and defence agreed on a sentence of 20 years' imprisonment of each count (sic) to run concurrently and to include the period* spent on remand of 1 year and 4 months.

*I have considered the aggravating factors put forward particularly the* tender age of the two victims. I have also considered the mitigating factors particularly the youthful age of the convict which makes him capable of reforming. He however committed a serious offence to two separate individuals. In the circumstances I sentence the convict to 14 years on each of the two counts and deduct therefore the period of remand.

I accordingly sentence the convict to 13 years and 8 months on each of the two counts from the conviction i.e. $4/6/2014$ . The sentences are to run consecutively."

It is evident that the trial judge accepted part of the agreement between $25$ the parties, that is, that the appellant pleads guilty, as he did. However, he did not accept the sentence of 20 years on each count that was recommended to court. Instead of the 20 years agreed upon, he imposed a sentence of 14 years' imprisonment on each count from which he then

deducted the period of 1 year and 4 months spent on remand. Further to 30 that, instead of ordering that the sentences do run concurrently, he ordered that they run consecutively. This resulted in a higher consolidated

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sentence amounting to 27 years and 4 months' imprisonment instead of 20 years'imprisonment with the period spent on remand included.

Rule 13 of the Plea Bargain Rules provides for the rejection of the plea bargain agreement in the following terms:

#### 13. ReJectlon of plea bargain agreement by court

- (11 The coutt may reJect a plea bargaln agreement where lt ls satlslled that the agreement may occaslon a miscarrlage of Justlce. - (2f Where the court reJects a plea bargain agreement-

(a) it shall record the reasons for the reJectlon and inform the parties;

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(b) the agreement shall become vold and shall be inadmlsslble ln subsequent trtal proceedlngs or in any trial relatlng to the same facts; and

(c| the matter shall be referred for trlal, subJect to sub nrle 8(31.

- We note that the provision above gives only one reason for the rejection of the plea bargain agreement. It specifies that this can only be done where the judge is satisfied that the sentence may occasion a miscarriage of justice. The judge is also according to the sarne provision required to inform the parties that the court rejects the agreement, and having done 15 - So, the agreement is rendered void and becomes inadmissible in any subsequent trial over the same facts. The offender then has to be tried for the offence by another judge. 20

The objectives of entering into plea bargains, are stated in rule 3 of the Plea Bargain Rules as follows:

#### The objectives of these Rules are-

(a) to enhance the efflciency of the criminal justice system for the orderly, predictable, uniform, consistent and timely resolution of criminal matters; (b) to enable the accused and the prosecution in consultation wtth the vlctim, to reach an amlcable agreement on en appropriate punishment;

{cl to facilitate reduction ln case backlog and prison congestion;

(dl to provide quick relief from the anxlety of criminal prosecution;

(el to encourage accused persons to own uP to thelr criminal responsibility; and

(0 to lnvolve the victtm ln the adJudication process.

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It is evident in this case that the objectives had been achieved because the appellant pleaded guilty to the offence after spending 1 year and 4 months in prison. This was in consideration of the fact that the court would impose a lesser sentence than would have been due to him had he been tried for the offence, as it is provided for in clause (b) above. It is also clear that if the lesser sentence is imposed the person who pleads guilty will be discharged from prison earlier than he would have been if he had been subjected to a full trial, so reducing the congestion in the prison. But even in such circumstances, justice will still be seen to have been done. 10 15

This court in Agaba Emanuel & 2 Others (supra) held that an accused person is entitled to an assurance that a sentence agreed upon in the plea 20 bargain agreement will be respected and will not be substituted with a judge-imposed sentence. Further that where a promise is made to an accused person in the plea bargaining process, that promise must be fulfilled as though it was a contract between the parties. The court held, and we emphasise that:

²⁵ o... plea bargaining creates an agreement between the prosecutor and the accused u.tith all the feahtres of an agreement in the laut of contract. Th.e court plags the role of a regulator of the agreement to ensure that the agreement conforms to the needs of the justice of the case. But the court is not priug to the agreement and cannot redefine it. What the court mag do is

to reject a plea bargain agreement where it is satisfied that the agreement *may occasion a miscarriage of justice.* ...

It is because of the seriousness accorded to a plea bargain that the rules prohibit the substitution of a judge imposed sentence in the context of plea *bargain context." (sic)*

In Aria Angelo v Uganda, Criminal Appeal No. 439 of 2015, in which judgment was handed down on 11^th February 2022, this court observed that:

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"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. The above notwithstanding, the judicial officer does not have the discretion to impose his or her own sentence."

We note that the participation of the court in the negotiations can only 15 lawfully take place before the agreement is brought to court for the proceedings to be concluded. This is reflected in rule 8 of the Plea Bargain Rules which provides as follows:

8. Court participation in plea bargain.

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## (1) The court may participate in plea bargain discussions.

(2) The parties shall inform court of the ongoing plea bargain negotiations and shall consult the court on its recommendations with regard to possible sentence before the agreement is brought to court for approval and recording.

(3) Subject to sub rule (1), a judicial officer who has participated in a 25 failed plea bargain negotiation may not preside over a trial in relation to the same case.

## *{Emphasis added}*

It is only in compliance with sub rule 2 above that the court may recommend a possible sentence and its participation is limited to that 30 extent. But should the negotiations fail where the court participated in them, the particular judicial office that did so is precluded from further entertaining the hearing against the accused person in the sarne case.

It is not evident from the record that the court participated in the negotiations for the sentence in this case. We therefore find that court gave up its right to disturb the agreement that was entered into between the prosecution and the appellant. If the trial judge was of the opinion that the sentence agreed upon would occasion an injustice, as it is provided for in rule 13 of the Plea Bargain Rules, then he ought to have rejected the whole of it. Short of that, the enhancement of the sentence from 20 years to be served concurrently instead of a sentence of 13 years and 8 months to be served consecutively was contrary to the concept of plea bargaining that is reflected in rule 15 of the Plea Bargain Rules as follows:

## 15. Protection of plea bargaln process.

(1) Any statement made by an accused person or hls or her advocate during plea bargaln discusslons is not admissible for any other purpose beyond the resolution of the case through a plea bargaln.

(2f The coutt shall not impose a sentence more severe than the maximum sentence recommended in the plea bargaln agreement.

We therefore hereby set the sentence imposed by the trial judge aside because it was illegal.

Counsel for the appellant urged us to impose the sentence of 20 years as it was agreed upon in the plea bargain agreement and reduce it by the period that the appellant spent on remand before he pleaded guilty. The respondent's counsel agreed with this proposal though he said nothing

about the period spent on remand. We observed that the appellant's grievances about his sentence were two. The first was that the cumulative sentence of 27 years and four months was manifestly harsh and excessive. 25

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The second was that the sentence was contrary to the plea bargain agreement.

We have dealt with the complaint about the trial judge's disregard of the sentence that was agreed upon in the plea bargain and set the sentence aside. We must now conclusively resolve the issue whether the sentence was manifestly harsh and excessive in view of what was agreed in the plea bargain agreement. It will be useful to lay down the terms of the sentence that was agreed upon, verbatim, in order to facilitate an understanding of our decision on this point. At page 3 of the plea bargain agreement, page 15 of the record, it was stated that the recommended sentence was:

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"TWENTY (20) YEARS for each count to run concurrently (to include period spent in lawful custody)"

From the terms above, it seems the parties agreed that the period of I year and 4 months spent on remand would be included in the sentence of 20 years to be imposed by the court. The court, in our opinion, would then 15 not have to take the period spent on remand into account on imposing the sentence, as is required by Article 23 (8) of the Constitution, because it was already factored into the agreed sentence because it was agreed upon before the sentence was imposed. However, Article 23 (8) of the Constitution provides as follows: 20

## (8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

It appears that the requirement of the provision above is that the period $25$ spent in custody before sentence must be taken into account at the time of sentencing. But we will return to this matter later on in this judgment.

We note that the appellant was sentenced before the 3.a March 2016 when the decision in Rwabugande Moses v Uganda, Supreme Court Criminal Appeal No 25 of 2o^16; [20161 UGSC 8, was handed down. In that case, it was held that "taking into accoltnt" in Article 23 (8) of the Constitution means arithmetical deduction of the period spent on remand from the sentence imposed. Sentencing judicial officers at the time that the appellant was sentenced still had the discretion to decide how to implement the dictates of Article 23 (8) of the Constitution, as it was held by the Supreme Court in Kizito Senkula v Uganda SCCA NO. 24 of 2OO 1; Kabuye Senvewo v Uganda SCCA NO. 2 of 2OO2; Katende Ahamad v Uganda SCCA NO. 6 of 2OO4 and Bukenya Joseph v Uganda SCCA No. L7 of 2OlO.

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The trial judge in his ruling noted that the appellant spent 1 year and 4 months on remand before he was convicted on his own plea of guilty. This would have met the requirements of Article 23 (8) of the Constitution.

The appellant's counsel agreed that the appellant be sentenced to a period of 20 years' imprisonment on each of the two counts and that the period that he spent in custody before conviction be deducted from that sentence. Had the court sentenced him to 20 years' imprisonment at the time, it would have done so by reducing the period of 20 years agreed upon because the appellant had already spent some time in prison.

We therefore see no reason to disturb the sentence that was agreed upon by the parties in the plea bargain agreement. But due to the fact that sentences run from the time that they are imposed by the court, we find it fair and just to take into account the period of 1 year and 4 months that was spent in lawful custody by deducting it from the sentence that was imposed before we sentence him, in compliance with Article 23 (8) of the Constitution.

We therefore order that the appellant will serve a sentence of 18 years and 8 months' imprisonment on each count. The sentences shall run concurrently, as it was agreed upon in the plea bargain agreement, to commence on 10th June 2014, the date on which he was convicted.

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Dated at Fort Portal this ry day of og ²⁰²³

Buteera DEPUTY CHIEF JUSTICE

Irene \

20 JUSTICE OF APPEAL

Eva K. Luswa JUSTICE