Kamoga v Uganda (Criminal Appeal 687 of 2015) [2023] UGCA 202 (10 August 2023)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

*(Coram: Buteera, DCJ, Mulyagonja & Luswata, JJA)*

## CRIMINAL APPEAL NO. O687 OF 2015

# (ARISING FROM CRIMINAL SESSION CASE NO. 276 OF 2013)

KAMOGA VICENT ::::::::::::::::::::::::::::::::::::

#### VERSUS

# UGANDA :::::::::::::::::::::::::::::::::::

(Appeal from the Judgment of the High Court of Uganda holden at Mubende before Hon. Mr. Justice Lameck Mukasa, dated 12<sup>th</sup> June 2014, in High Court Criminal 10 Session Case No. 276 of 2013)

## JUDGMENT OF THE COURT

#### **INTRODUCTION**

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The appellant was charged with the offence of aggravated defilement contrary to section 129 (3) and (4) (a) of the Penal Code Act, Cap 120. He was convicted and 15 sentenced to 18 years' imprisonment.

#### **BACKGROUND**

It was alleged that the appellant on 4<sup>th</sup> September, 2012 at Muwoko LC I in Mubende District, performed a sexual act on N. T a girl aged 13 years. The victim was a P.5 pupil at Katente West Primary School. It was alleged that the victim was on her way from school on the fateful day when the appellant who was riding a bicycle in the opposite direction, grabbed her from behind and defiled her. The victim reported the incident to her father upon reaching home. He in turn reported to Kiyuni Police Station that commenced investigations into the matter.

De Jum.

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The victim and the appellant went through medical examination. It was established that the victim had bruises in the inner thighs and a freshly raptured hymen. The appellant was found to be of sound mind'

5 The appellant pleaded guilry to the charge and through negotiations, a plea bargain agreement was executed. The plea bargain agreement provided that the appellant was to serve a term of imprisonment fot 72 years. The appellant admittecl that the plea bargain agreement had been explained to him in Luganda before he signed it. The appellant was, however, sentenced to serve a sentence of <sup>18</sup>years' imprisonment. The appellant is aggrieved by the sentence of 18 years'

imprisonment which he considers to be manifestly harsh and excessive. 10

The appellant's memorandum of appeal has one ground of appeal to wit: -

The kial |udge erred in law and fact when he passed a manifestly harsh and excessive sentence of 18 years' imprisonment against the appellant, thereby occasioning a miscarriage of justice'

- <sup>15</sup> The appellant made the following Prayers: - 1. The appeal be allowed. - 2. The sentence of imprisonment of 18 years be set aside and be substituted with such lesser sentence as the court may deem fit.

#### LEGAL REPRESENTATION

<sup>20</sup> The appellant was represented by Ms. Angella Bahenzire, on State Brief from M/s Bahenzire, Kwikiriza & Co. Advocates. The respondent was lePlesented by Ms. Nakafeero Fatinah, Chief State Attorney, from the Office of the Director of Public Prosecutions. Both parties applied that the written submissions they had earlier

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filed be adopted by court as their submissions in this case. Court granted the leave accordingly.

### APPLICATIONS FOR LEAVE

Counselfortheappellantbeganhersubmissionsbyseekingleaveofcourtto validate the appellant's notice of appeal. she referred to section 28 of the Criminal ProcedureCocleAct,Cap116whichprovidesthatacriminalappealshallbe commencedbyanoticeofappealfiledincourtwithin14daysfromthedateof iutlgment. she conceded that by 2Tth December,2015, when the appellant lodged his notice of appeal, the 14 days prescribed in the law had long expired' She relied

on the case of ADIGA VS UGANDA; CRIMINAL APPEAL NO 157 OF 2010' where court allowed a Prayer for the validation of a Notice of Appeal which had been filec'l out of time. 10

Counselfortheappellantalsoappliedforleaveofcourttoappealagainstsentence only in accordance with Rule a3(3)(a) of the Judicature (Court of Appeal Rules)

- Directions that require one to seek leave of court to appeal against sentence alone' Section 132 (1)(b) of the Trial on Indictments Act Cap 23 was also referred to in this regard. The case of ANGUIPI ISAAC ALIAS ZAKO VS UGANDA; CRIMINALAPPEALNo.2SloF2015wasreferredtoinsupportofthis submission. 15 - Nakafeero Fatinah did not oppose the appellant's applications. The leave applied for was therefore granted' 20

## SUBMISSIONS OF THE APPELLANT

Counsel submitted that section 132(1) of the Trial on Indictments Act empowers the Court of Appeal to interfere with the sentence passed by the frial court'

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Counsel cited the case of KYALIMPA EDWARD VS UGANDA; CRIMINAL APPEAL NO. 10 OF 1995, in which it was held that:

> "An appropriate sentence is a matter for the discretion of the sentencing iudge. Each case Presents its own facts upon which <sup>a</sup> iudgeexerciseshisdiscretion. Itisthepracticethatasanappellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisf ied that the sentence imposed by the trial judge was manifestly excessive as to amount to an iniustice"'

Counsel further submitted that in the ANGUIPI CASE (supra), the court upon considering the mitigating ancl aggravating factors in a conviction for the offence of murder, reduced the appellant's sentence from 26 years' imprisonment to <sup>18</sup> years and 8 months' imprisonment. she prayed that court finds that the sentence of 18 years' imprisonment imposed upon the appellant was manifestly harsh and excessive and that the same he set asicle and substituted with a lesser sentence the court deemecl fit. 10 15

#### RESPONDENT'S SUBMISSIONS

It was submitted for the respondent that the there were elements of illegality of the sentence being challenged and those shoulcl have been the bigger issue rather than the harshness of the sentence. Counsel cited Rule t2 (1) (g) that provides that by entering into a plea bargain agreement, an accused Person is waiving the right to appeal except as to the legality or severity of the sentence or if the judge sentences the accused outside the agreement. She also referred to Rule 15 (2) which provides that court shall not impose a sentence more severe than the maximum sentence recommended in the plea bargain agreement. 20 25

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Counsel submitted that the appellant in the plea bargain agreement dated 5<sup>th</sup> June 2014, which was signed by the respondent, the appellant and the prosecution agreed to a sentence of 12 years' imprisonment. The trial judge was precluded from sentencing the appellant to a sentence other than what was agreed upon in the plea bargain agreement. Counsel argued that upon confirmation by court, the plea bargain agreement became part of the court record.

Counsel went on to submit that under Rule 15 (3), a Judge is prevented from interfering with the sentence agreed upon once he or she endorses the same but he or she can only reject the plea bargain agreement and refer it for trial before another judicial officer. Further, that the sentence of imprisonment for 18 years 10 was a misdirection by court. The court was implored to consider the Plea Bargain Rules. Counsel for the respondent prayed that this court applies section 11 of the Judicature Act to quash the sentence of the learned trial judge and enforce the plea bargain agreement which was signed by all parties to the proceedings where the

agreed sentence was 12 years' imprisonment. 15

The cases of SEMPIJJA BRIAN VS UGANDA; CRIMINAL APPEAL NO. 566 OF 2014, AGABA EMMANUAL & 2 ORS; CRIMINAL APPEAL NO. 139 OF 2017 and WANGWE ROBERT VS UGANDA CRIMINAL APPEAL NO. 572 OF 2014 were cited to buttress the submission that this court should substitute the sentence imposed by the trial judge with the one that was agreed upon in the plea bargain agreement.

#### **RESOLUTION BY COURT**

We have carefully studied the record of appeal and considered the written submissions of both Counsel as well as the law and authorities cited. There is only one issue to determine which concerns the sentence imposed by the trial judge.

BR Iver.<br>GUIL

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Whereas the appellant appealed against the harshness of the sentence, it is apparent that the sentence meted by the trial court was illegal. We shall therefore address that and make a decision on the harshness of the sentence as well. We shall reproduce the relevant part of the plea bargain agreement for ease of reference:-

"5.2 *Recommended sentence/order* 12 Years custody taking into account the time spent on remand." The relevant part of the record of court is as follows :-"SENTENCING ORDER ...... I have considered all the aggravating and mitigating circumstances in this case. I find a sentence of 20 years appropriate in the circumstances. I deduct therefore the 2 years spent on remand and sentence the convict to 18 years imprisonment from conviction i.e. 5/6/2014. *The Convict has a Right of Appeal against the sentence within 14 days.* HON. LAMEKA MUKASA **JUDGE** 12/6/2014"

The appellant and the prosecution agreed upon a sentence of 12 years' imprisonment. The trial judge instead of imposing the sentence agreed upon, sentenced the appellant to 18 years' imprisonment. That offends Rule 15 (2) of the 20 Judicature (Plea Bargain) Rules, 2016, which provides that:

> "The court shall not impose a sentence more severe than the maximum sentence recommended in the plea bargain agreement."

This court has had occasion to determine appeals where a trial court imposed a sentence higher than the sentence agreed upon in the plea bargain agreement. In 25 SEMPIJJA BRIAN VS UGANDA; COURT OF APPEAL CRIMINAL APPEAL NO. 566 OF 2014, this court held: -

> "In our view, when a trial judge accepts the plea bargain agreement on record, he or she must have read the whole agreement and found

the Iran.

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it justified to meet the ends of justice. By accepting the plea bargain on record, the trial judge is enjoined to take its content in its totality and not vary the sentence as he/she sees fit.

With due respect, we find that the learned trial judge erred when she sentenced the appellant outside the plea bargain agreement, to his prejudice."

In AGABA EMMANUEL & 2 ORS VS UGANDA; CRIMINAL APPEAL NO. 0139 OF 2017, the sentence imposed upon the appellant was substituted with the one agreed upon in the Plea Bargain Agreement. The period the appellant had spent on pre-trial remand was deducted.

We shall therefore set aside the illegal sentence of 18 years' imprisonment and invoke the powers of this court under Section 11 of the Judicature Act to sentence the appellant. We maintain the agreed sentence of 12 years' imprisonment. Since the remand period was considered in the plea bargain agreement, we need not reconsider it. The appellant shall, therefore, serve a sentence of imprisonment of 12

years, running from 5<sup>th</sup> June, 2014 when he was convicted.

Having dealt with the illegality and maintained the sentence that was agreed upon by the appellant and the prosecution, we find it unnecessary to address the issue of harshness. This Appeal therefore succeeds.

**DATED** at Fort- Portal this..... $10^{\mu}$ $\dots$ of $\dots$ August 2023 20 **Richard Buteera Deputy Chief Justice** Irene Mulyagoni 25 Justice of Appear Eva K. Luswata Justice of Appeal

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