[2023] UGCA 73

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

(Coram: Hellen Obura, Catherine Bamugemereire and Christopher Madrama, JJA.)

## CRIMINAL APPEAL NO. ()O7 OF 2018

### OKETCH SIMON APPELLANT

#### VERSUS

## UGANDA RESPONDENT

(Appeal from the decision of the High Courl of Uganda at Mbale before Kawesa, J in Criminal Sesslon Case No.120 of 201 5 delivered on the 1 3/07/201 6.)

## JUDGMENT OF THE COURT

# 1s lntroduction

The appellant, was indicted, executed a plea bargain agreement, and upon pleading guilty, he was convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act on his own plea of guilt by the High Cou( (Kawesa, J.). He was sentenced to 15 years' imprisonment as agreed by the parties. The particulars of the offence were that Oketch Sam on the 20th day of November 2014 at Kaserem Magnet Quary in Kapchonrua District murdered Nyarwa Enock.

#### Background

The brieffacts ofthis case as accepted by the learned trial Judge are that; the appellant and the deceased were both on duty guarding at a quarry on the 20t November, 2014. The appellant picked a quarrel with the driver and fired a shot. The deceased intervened and questioned him. The deceased then returned to his position. The appellant followed the deceased, shot him and he died instantly. The appellant reported to Bulambuli Police Station and he was anested. 25

- ⁵ At the commencement of the trial, the appellant entered a plea bargain agreement with the prosecution under which he accepted his guilt and the parties agreed on a sentence of 15 years' imprisonment. Consequently, the appellant appeared before the learned trial Judge and pleaded guilty of the offence of murder. Upon confirming the facts that were read to him, the appellant was convicted of the offence as charged on his own plea of guilty and sentenced - as aforementioned. 10

Being dissatisfied with the sentence of the trial court, the appellants appealed to this Court on only one ground on sentence, namely;

"That the learned trial Judge erred in law and fact upon inposing harch and excessive sentence of 15 years to the appellant without considering nitigating factors hence occasioning a miscarriage of justice."

## Representation

At the hearing, Mr. Obedo Deogratious represented the appellants on State Brief whereas Mr. Peter Mugisha, State Attorney from the Office of the Director of Public Prosecutions appeared for the respondent. The appellant was in Court. Counsel for the appellant sought and was granted leave to appeal against sentence only under S.132(1b) of the Trial on lndictments Act (TlA). Counsel for both sides addressed Court by submissions which were adopted and have been considered in the decision of this Court.

#### Appellants' Submissions

Counsel submitted that it is trite law that the first appellate court is mandated by law to reevaluate the evidence adduced before the trial court as a whole and make its own conclusion. He relied on Father Narsensio Begumisa & 3 others vs Eric Tibebaga [2004] KALR 236, Supreme Court for this position. 25

⁵ Counsel urged this Court to re-evaluate the evidence adduced before the lower court in regard to the material mitigating factors put forward by the appellant which the learned trial Judge overlooked and found that the sentence of 15 years was excessive and harsh then imposed a lenient one. He supported his argument for a lenient sentence with the decision in John Kasimbazi and others vs Uganda CACA No. 167 of 2013, where the appellants were charged with murder and sentenced to life imprisonment and on appeal this Cou( reduced the sentence to'12 years. He also relied on Magala Ramathan vs Uganda (SCCA No. 1120141, where the Supreme Court reduced sentences for 2 counts of murder from 14 years to 13 years and 2 months. 10

Counsel submitted that the principle of stare decisis et non quieta movera, which is applicable to our ludicial system obliges this Court to abide by previous decisions. Further, that consistency in sentencing is fundamental as was held in Mbunya Godfrey vs Uganda (SCCA No.4 of 201 1). 15

Counsel concluded his submission with a prayer that this Court considers the mitigating factors that were presented before the trial court, namely; the fact that the appellant readily pleaded guilty to the offence; he was on remand for 1 year and 7 months and was remorseful

about the events that happened. He prayed that this court be pleased to allow the appeal, set aside the sentence of 15 years and impose a lenient one. 20

## Respondent's Submissions

Counsel opposed the appeal and supported the sentencing decision of the learned trial Judge. He submitted that this Court is vested with the appellate jurisdiction under Article 134(2) of the Constitution of the Republic of Uganda 1995 (as amended) and, as the first appellate Court its duty is to give the evidence on record a whole fresh and exhaustive scrutiny and draw its own conclusion of fact. He relied on Uganda vs George Wilson Simbwa SCCA No. 37 of 1995 and Okeno vs Republic (1972) EA 32 for this position. 25

⁵ On the contention of the appellant is that the sentence of 15 years'imprisonment was manifestly harsh and excessive in the circumstances, counsel submitted that the said sentence was neither harsh nor excessive in the circumstances and in light of the fact that the maximum sentence for murder is death. He buttressed this position with the decision in Bakubye Muzamiru & Another vs Uganda SCCA No. 056 of 2015 where the Supreme Court held that the sentence of 40 years for murder was neither harsh nor excessive. He also contended that the learned trial Judge considered both the aggravating and mitigating factors. 10

Counsel pointed out that the starting point for the offence of murder is 35 years as per the third schedule part 1 of the Judicature (Constitution Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. He argued that the sentence of 15 years was too lenient considering the fact that the starting point is 35 years. He also submitted that the sentence imposed by the learned trial Judge was agreed upon by the appellant and the prosecution in the plea bargain agreement. Counsel averred that at the time of plea taking the appellant had confirmed that he, voluntarily, signed the plea bargain agreement.

Counsel relied on Kiwalabye vs Uganda, SCCA No, 143 of 2001 and submitted on the circumstances under which an appellate court may interfere with the sentencing discretion of the trial court. He added that none of those factors are in issue in this appeal to wanant interference with the sentencing discretion of the trial Judge. 20

He prayed that the appeal should fail and be dismissed for lack of merit and the conviction and sentence of the lower court be upheld.

## Resolution by the Court

The duty of this Court as a first appellate court is to re-evaluate the evidence on record and the materials before it and come up with its own conclusion. This position was well elaborated by the Supreme Court in Father Narsensio Begumisa & 3 others vs Eric Tibebaga [2004] KALR 236 where it stated thus;

⁵ "The duty of the 1st appellate Courl is to rehear the case subjecting the evidence presenled to the trial Courl to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. ln the case of conflicting evidence, the appellate coui has to make due allowance for the fact that it has neither seen nor heard fhe wrfnesses, il must weigh the conflicting evidence and draw its own ⁱnference and conclu sion s. "

¹⁰ See also Baguma Fred vs Uganda, SCCA No. 7 of 2004 for a similar position.

We have carefully studied the record of appeal and considered the submissions of both counsel as well as the law and authorities cited to us plus others that we found relevant in determining this appeal. The appeal is only on one ground of sentence. lt was contended for the appellant that the learned trial Judge erred in law and fact when he imposed a sentence of 15 years' imprisonment on the appellant without considering the mitigating factors, which according to counsel, is harsh and excessive. Counsel supported his argument with the Supreme Court decisions in John Kasimbazi & Others vs Uganda (supra) and Magala Ramathan vs Uganda (Supra) which he urged this Court to follow and give a lenient sentence upon considering the mitigating factors that the learned trial Judge omitted to

consider. 20

Conversely, counsel for the respondent opposed the appeal and supported the decision of the learned trial judge, arguing that the sentence was arrived at after considering the mitigating factors and it was neither harsh nor excessive.

25 It is trite that an appellate court cannot interfere with the sentencing discretion of the trial court unless it is satisfied that the sentence imposed is manifestly excessive, or so low as to amount to a miscarriage of justice, or where the trial court ignores to consider important matters, or circumstances which ought to be considered when passing sentence or where sentence imposed is wrong in principle.as was held in Kiwalabye vs Uganda, SCCA No. 143 of 2001.

We have subjected the record of sentencing proceedings to a fresh scrutiny with a view of 30 establishing whether the learned trial Judge ened by not considering the mitigating factors as

⁵ contended by the appellant. However, in so doing, we have discovered some serious inegularities which we find imperative to address first as it may have the effect of vitiating the proceedings and rendering it a nullity.

As stated in the introduction and background, the appellant and the prosecution had a successful plea bargain which resulted into executing a plea bargain agreement. We gleaned

from the record that the parties appeared before the learned trial Judge to have it recorded. However, we note that the procedure for receiving and recording a plea bargain agreement as prescribed under the Judicature (Plea Bargain) Rules, 2016 (the Rules) was not followed by the learned trial Judge. The record of proceedings indicates as follows; 10

"Courl: The accused pleads to the charge in Acholi as follows:

Accused: The charge is true

Resldent S,ate Attorney: Both accused and the deceased were guarding at a quarry on 20th, Nov.20'14. Both were on duty. The accused picked a quarrel with the driver. He fired a shot. The deceased interuened and questioned hin. The deceased returned to his position. The accused followed him, he then shot at the deceased who died instantly. The accused repofted to Bulambuli Police Station and the accused was charged wlh murder.

Accused: The facts are true.

Court: Plea of guilty.

Court: Convicted on his own plea of guift.

Accused: True, I signed.

Resldenl State Attorney: We agreed on 15 years' imprisonmenl as sentence. 25

> Coutl: Plea Bargain Agreement seen. lt is agrced on; that he serues 15 years. The offence is grave. The mitigations have pulled it down from death to 1Syears. Ihe accused deserves a detenent senlence. He is sentenced to 15yrs in prison from the date of admission on remand.

S0ned, 30

Judge.

13th, lu|y,2016."

⁵ We have examined the above proceedings vis-a-viz rule 12 of the Rules which gives an elaborate procedure for recording a plea bargain agreement before the trial court. lt provides thus;

#### "12. Recoding ol plea bargain agreement by the coutt'

(1) Subject to the procedure prescribed in lhe Schedule 2, the courl shall inform the accused person of his or her ights, and shall satisfy itself that the accused person understands the following-

(a) the right-

(i) to plead not guilty, or having aheady so pleaded, the effect of that plea;

(ii) lo be presumed innocent until proved guilty;

(iii) to remain silent and not to testify during the proceedings;

(iv) not to be compelled to give self -incriminating evidence;

(v) to a full trial; and

(vi) to be represented by an advocate of his or her choice at his or her expense or in a case triable by the High Cout, to legal representation at the expense of the Slate,

## (b) that by accepting the plea agreement, he or she ls waiving his or her right as provided for under paragraph (a);

- (c) the nalure of the charye he or she is pleading to: - (d) any maximum possible penalty, including imprisonment, fines, community service order, probation or conditional discharge; - (e) any applicable fofeiture; - (0 the courl's authorrty b order compensation and restitution or both; and - (g) that by entering into a plea agreement, he or she is waiving the ight to appeal except as to the legality or severity of sentence or if the judge senlences the accused outside the agreement. - 30

(2) The charge shall be read and explained to the accused in a language that he or she understands and the accused shall be invited to take plea.

(3) The prosecution shall lay before the couft the factual basis contained in the plea bargain agreement and the coul shall determine whether there exlsts a basls for the agreement.

⁵ (4) The accused person shatt freety and votuntarily, without threat or use of force, execute the agreement with full understanding of all matters.

> (5) A Plea Bargain Confirnation shall be signed by the pafties before the presiding Judicial officer in the Form set out in the Schedule 3 and shall become pa of the courl record and shall be binding on the prosecution and the accused,"

It is evident from the record that no explanation was made by the learned trial Judge to the appellant about his constitutional rights as required by rule 12 (a)of the Rules. Similarly, there is no indication that the parties signed a plea bargain confirmation before the learned trial Judge as required by rule 12 (5) of the Rules.

- We are of the view that the failure by the learned trial Judge to follow the procedure of recording the plea bargain agreement vitiated the proceedings and rendered it a nullity as a miscaniage of justice was occasioned to the appellant who never had the opportunity to have his constitutional rights, which he waived by executing the agreement, explained to him by the learned trial Judge. However, we do not think the failure of the trial court to follow the laid 15 - down procedure for recording a plea bargain agreement affects the validity of the agreement. We are of the view that the agreement which the parties execute remains valid and the costs and inconveniences of going through a retrial can be saved by having the same agreement properly recorded before another trial Judge in accordance with rule 12 of the Rules and, we so find in this case. We are also of the view that once the proceedings are vitiated and rendered a nullity due to failure to follow the procedure for recording a plea bargain, there would be no basis for upholding the guilty plea that was entered and the conviction that was 2Q 25

Our view is fortified by the decision of this Court in Aria Angelo v Uganda Court of Appeal Criminal Appeal No. 439 of 2015 where it was stated that for an agreement to plead guilty to be valid, the accused must;

made in that proceedings.

- 1. Accept the plea bargain in full awareness of the facts of the case. - 2. Accept the plea bargain with full awareness of the legal consequences. - 3. Accept the plea bargain in a genuinely voluntarily manner.

trial court.

10 For the above reasons, we quash the appellant's conviction and set aside the sentence. We order that this file be placed before another trial Judge as soon as is convenient but, in any event, not later than one month from the date of this judgment for the recording of the plea bargain agreement the appellant and the prosecution had executed.

We are constrained to observe in passing that besides the above grave irregularities, this appeal would have still succeeded for other two other reasons which were not canvassed by the appellant, even if the procedure for recording a plea bargain agreement had been followed by the trial court. Firstly, the learned trial Judge never took into account the period of 1 year and 7 months the appellant spent on remand pursuant to Article 23 (8) of the Constitution and, secondly, he stated that the sentence of 15 years'imprisonment was to run from the date of admission on remand which is contrary to the provision of section 106 (2) of the Trial on lndictment Act that says every sentence shall be deemed to commence from and include the whole day of the date on which it was pronorrnced. For those reasons, we would have still found the sentence illegal and been inclined to interfere with the sentencing discretion of the

25 30 Otherwise, on the grounds advanced by the appellant, we would find no merit in them and they would all fail because it is quite clear from the above excerpts of the proceedings especially the sentencing ruling that the learned trial Judge took into account the mitigating factors while sentencing the appellant. As regards the contention that the sentence of 15 years is harsh and excessive, we would also find that it is not, given that the maximum penalty for murder is death and the sentence of 15 years agreed upon by the parties and imposed by

- the learned trial Judge is a bit on the lower side of the range of sentences imposed by this $\mathsf{S}$ Court and the Supreme Court in similar offences with similar circumstances where the appellant pleaded guilty or entered a plea bargain agreement. At any rate, the sentence of 15 years was agreed upon by the appellant and had the procedure for recording a plea bargain agreement been followed, the question of severity of sentence as a ground of appeal would - not arise because in plea bargain proceedings parties negotiate and agree voluntarily, unless $10$ proved otherwise.

Before we take leave of this appeal, with all due respect, we wish to observe with great concern the increasing failure by some trial Judges to pay close attention to the provisions of the Rules which unfortunately, lead to the quashing of convictions and setting aside of sentences under plea bargain agreements that are intended to facilitate quick resolution of criminal matters. In the end, it occasions injustice to the appellants and becomes costly for the judiciary and the state.

Dated at Mbale this....................................

| 20 | | |----|--------------------------| | | Hellen Obura | | | <b>JUSTICE OF APPEAL</b> | | | | | 25 | Catherine Bamugemereire | | | JUSTICE OF APPEAL | | 30 | | | | Christopher Madrama | | | JUSTICE OF APPEAL |