[2023] UGCA 330

### ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

## CRIMINAL APPEAL NO.285 OF 2O2L

(Aising from High Court Criminal Case No.41 of 2018)

## MUI{ASA RONALD alias MADU::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

## UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(An appeal from the decision of the High Court of Uganda at Mukono before P. Basaza Wassraa, J deliuered on 2oth Nouember, 2019)

# CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

# HON. LADY JUSTICE HELLEN OBURA, JA

## HON. LADY JUSTICE EVA. K. LUSWATA, JA

## JUDGMENT OF THE COURT

The appellant upon his own plea of guilty was on 20th November, 2Ol9 convicted of the offence of aggravated robbery contrary to sections 285 and 286 of the Penal

Code Act, Cap 120 and sentenced to 10 years'imprisonment. The conviction and sentence followed a plea bargain agreement the parties entered into. 20

The background to this appeal is that the appellant, Mukasa Ronald alias Madu was indicted for the offence of aggravated robbery contrary to sections 285 and

⁵ 286 of the Penal Code Act, Cap 120. The particulars of the offence were that on the 8th day of December, 2Ol7 at Lusenke Village in Kayunga District, the appellant robbed Yeeka Godfrey of cash UGX 2OO,OOOI= and at or immediately before or immediately after the said robbery used a deadly weapon to wit a knife to the said Yeeka Godfrey. At the commencement of the trial, the prosecution, the appellant and his counsel executed a plea bargain agreement on l1th November, 2019 and an addendum thereto was executed on 20th November, 2OL9. In the said plea bargain agreement, it was agreed that the appellant be 10

Being aggrieved with the sentence, the appellant with leave of this Court,

sentenced to 10 years'imprisonment for the offence of aggravated robbery.

appealed against sentence only on the following ground. 15

> Thqt the learned trial Judge erred in laut when she sentenced the appellant to 70 gears' imltrisonment uithout considering the time spent on retna;nd. uthich utq.s hrlrsh and. excessive leading to q. miscarriag e of justice.

#### Representation 20

At the hearing of the appeal Mr. Richard Kumbuga appeared for the appellant on state brief while the respondent was represented by Mr. Sam Oola, Senior Assistant DPP.

## ⁵ Appellant's submissions

Counsel for the appellant submitted that the Learned Trial Judge did not consider the period of time that the appellant had spent on remand and other mitigating factors. He further submitted that the appellant was 29 years of age at the he committed the offence and by the time of his conviction, he was aged

32 years and capable of reforming. That the appellant had been remorseful from the time he was apprehended, pleaded guilty and thereby did not waste Court's time and has been of good conduct for the period he was in custody. Counsel added that it was an established practice that where an accused person pleads guilty to a charge, the trial Court ought to exercise leniency in sentencing such a person as this encourages other criminals to own up to their criminal responsibility. 10 15

Counsel contended that the circumstances under which this offence was committed should also have been considered by the learned trial Judge. The appellant merely grabbed the victim and stole his property. It was at the point of escape that the victim held his legs and the convict fought back by stabbing him. He added that the convict though armed, was well calculative not to inflict life threatening injuries to the victim despite having the means to do so. In counsel's view, this was a conduct of a person with some moral conscience. Counsel further contended that the appellant was a first offender and a sole bread winner for his family by the time of his conviction.

⁵ Counsel submitted that the learned trial Judge did not adequately consider the appellant's mitigating factors compared to the aggravating factors hence meting out a harsh and excessive sentence to the appellant. He added that the learned trial Judge did not as required by law deduct the period that the appellant had spent on remand as required by article 23(8) of the Constitution. Further that the appellant was convicted and sentenced on 22"d December, 2O2O for a period of 1O years and he had been on remand for 3 years, 8 months and 21 days. (We believe this was an error because the actual period is 1 year 10 months and 18 days). He prayed that the appeal be allowed. 10

## Respondent's submissions

Counsel for the respondent conceded that in imposing the sentence of 1O years' imprisonment for aggravated robbery, the learned trial Judge did not take into account the period that the appellant had spent on remand contrar5r to the provisions of Article 23(8) of the Constitution. He invited this Court to set aside the sentence of 1O years' imprisonment passed against the appellant and proposed a sentence of 8 years, 1 month and 15 days' imprisonment. He relied on Ruabugande Moses V Uganda" Supreme Court Criminal Appeal No.25 of 2074 for the principle that a sentence arrived at without taking into consideration the period spent on remand was illegal. 15 20

# Court's Determination

We have carefully studied the Court Record, the submissions of either counsel for parties. We have also reviewed the law and authorities relied upon. 25

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⁵ Our duty as the first appellate Court is to re-appraise the evidence and come up with our own inferences on all questions of law and fact. See RuIe 3O(1) of the Rules of this Court and Kifamunte Henry V Ugand.a, Supreme Court Criminal Appeal No.70 of 7997.

This Court can only interfere with the sentence of the trial Court if that sentence is illegal or is based on a wrong principle or the Court has overlooked a material factor, or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. See Kizito Senkula V Uganda, Criminal Appeal No.24 of 2OOl and Ogalo s/o Ouruora V Republic (1954) 27 EACA 726. 10

Counsel for the appellant contends that while passing the sentence, the learned trial Judge did not comply with the provisions of Article 23(8) of the Constitution, rendering the sentence a nullity. In reply, counsel for the respondent conceded that indeed the learned trial Judge did not comply with the provisions of Article 23(8) of the Constitution. 15

We note that in the instant case, the appellant went through a plea bargaining process at the High Court. He bargained for a sentence of 1O years himself. On that basis, he pleaded guilty to the offence of aggravated robbery. We further note that at page 10 of the Plea Bargain Agreement, there are words written as "sentence includes period spent on remand." 20

Plea Bargaining is regulated by the Judicature (Plea Bargain) rules, 2OL6.

Rule 4 of the Judicature (Plea Bargain) Rules, 2016, subjects conclusions reached by the parties in the plea bargaining process to approval by Court. 25

⁵ Rule 8(2) provides that 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.

According to the lindings and order of Court on record, the learned trial Judge stated as follows; 10

"The Court, hauing reuiewed this form and any addenda, and hauing questioned the acansed concerning the aca)sed's constitutional rights, fi.nds that the acansed has expressly, knouingly, understandinglg, and intelligently waiued and giuen up his or her constitutional and statutory ights. The Courtfinds that the accased's plea(s) and admissionfs/ are freely and uoluntarilg made uith an understanding of the nature and consequences thereof, that any allegations as indicated in this form are tnte, and that there is s factual basis for the plea(s) and admissionls/. The Court accepts the accased's plea(s). The Court orders that this form be filed and incorporated in the record of proceedings."

We are of the considered view that a sentence that follows a plea bargain procedure ought to be interfered with if it is shown that it was illegal. In the instant case, the record of proceedings does not indicate anywhere that the learned trial Judge complied with the provisions of Atticle 23(8) of the

Constittttion however much the sentence arose out of a plea bargaining agreement. 25

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⁵ The record does not show that the parties consulted Court on the recommendations before the agreement was brought to Court for approval and recording as required under Rule 8 (21 of the Plea bargain rules. It is during this time that the trial Judge guides the parties on matters of law which include the period a convict spent on remand and all other issues that may not have been considered by the parties during negotiations. Before endorsing the agreement, court must satisfy itself that matters of law and fact have all been taken into consideration by the parties. See Wetga Twayint & Ongango Peter V Uganda" 10

Court of Appeal Criminal Appeal No.532 of 2076.

Article 23(8) of the Constittttton provides that; 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. 15

ln Rwa.bugand,e Moses as Uganda Supreme Court Crinina'l Appeal NO.25 of 2074 a sentence of imprisonment arrived at without taking into consideration the period spent on remand by a convict is illegal for failure to comply with a mandatory constitutional provision. 20

The appellant was arrested and detained on 2/Ol/2018. He was subsequently convicted on20/LL/2019. The period he spent on remand was therefore 1 year 1O months and 18 days. The learned trial Judge did not consider that period when he was sentencing the appellant. The sentence imposed was therefore a nullity and we accordingly set aside the same. Section 11 of the Judicature Act, Cap 13 grants this Court while hearing an appeal the same power as that of the

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⁵ trial Court to impose a sentence that we consider appropriate in the circumstances. The facts admitted by the appellant are that during the robbery he grabbed the complainant by the collar, threw him down, and quickly picked the complainant's keys and cash of 20O,O0O/= from his pockets. As the appellant was attempting to run away, the complainant grabbed his leg and struggled with him to get his money back. The appellant got a knife from his waist and stabbed the complainant on his left arm. However, we note that the appellant was a first offender, he was 29 years old at the time he committed the offence, and he 10

pleaded guilty hence saving Court's time and was remorseful.

In Africa Wycliffe and Magabali Ismail alias Jose V Uganda, Court of Appeal

Criminal Appeal No. 522 of 2OL6, the appellant and the respondent executed a plea bargain agreement in which they agreed on a sentence of 18 years' imprisonment. On the basis of that agreement the appellant pleaded guilty and he was convicted of the offence of Aggravated Robbery and the learned trial Judge sentenced him to 18 years' imprisonment inclusive of the period spent on remand. This Court set aside the sentence of 18 years'imprisonment for being illegal as Article 23 (8) of the Constitution was not complied with and substituted it with a sentence of 13 years and 6 months'imprisonment after deducting the period of 5 years and 6 months the appellant spent on remand. 15 20

After considering both the aggravating and mitigating factors and deducting the period of 1 year, 10 months and 18 days that the appellant in the instant case spent on remand from the agreed 10 years, we now sentence the appellant to 8 years, 1 month and 12 days. The said sentence shall run from 20th November, 2OL9 when the appellant was sentenced. 25

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We so order

MM ...........2023 Dated at Kampala this ....... .day of .. $\mathsf{S}$

Cheborion Barishaki

JUSTICE OF APPEAL

Hellen Obura

JUSTICE OF APPEAL

va. K. Luswata

JUSTICE OF APPEAL

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