Keem v Uganda (Criminal Appeal No. 130 of 2018) [2023] UGCA 71 (1 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPATA CRIMINAL APPEAI- No.ll0 of 2018 (Coram: Obura, Bamugemereire & MadramaJ.lA)

# KEEM PAUL APPEI-I,AN'f VEI{SUS

ITIlSPONDEN-f I from thc decision ofl!. WolayoJ darcd lBt'./uly 2016 thc lligh Courr of Uganda holdcn ar Mbalc) UCANDA (An Appca

Criminal Law - plca bargain - whether thc appcllant can appeal against sattence after a plca bargain - Rule 8(2) Thc ludicature (Plea Bargai) ltulcs 2016.

# UDGMENT OF THE COURT

## Introduction

The appellant, Paul Keem on his own volition, entered a plea bargain agreement arrangement. As a result of the plea bargain, he agreed to serve 18 years' imprisonment for the offence of Murder contrary to

section 188 and 189 of the Penal Code Act. He was sentenced to 15 years' imprisonment after deducting the three years he had spent on remand. 20

### Background

Briefly, Keem Paul was a Local Defence Unit (LDU) Officer identified as No. AX000354. On 12th December 20ll he had a misunderstanding with his wife whom he suspected of cheating on him. She run away from him and disappeared. Armed with an AK 47 Keem went about looking for his missing wife. He met the deceased Lothurin Etukan and shot him dead. He was arrested and charged with murder. When he appeared in court, the appellant pleaded guilty for the offence of Murder c/s 183 and 184 of the PCA and voluntarily entered a plea bargain agreement of I8 years in prison. The Learned TrialJudge then sentenced the appellant to 18 years and deducted a period of 3 years 1A 30

that the appellant had spent on remand. I-{is final sentence was l5years' imprisonme nt. Dissatisfied, the he appealed to this court on 2 grounds;

- 1. The Learned TrialJudge erred in law and fact when she ignored some of the mitigating factors in favour of the prosccution hence occasioning miscarriage o[jusrice to the appellanr. - 2. Without prejudice to the former the sentence of 18 years was deemed harsh and excessive in the circumstances given the remorsefulness of the appellant. - At the hearing of this appeal, the appellant abandoned his l" ground of appeal. His appeal is based only on Ground No.2, the sente nce. The appellanr was represenred by learned counsel Agnes Waze mwa while learned Senior State AttorneyJosephine Aryang represenred the Respondents. The Prison Authority was unable to physically produce 10 - the appellant from Culu Main Prison. lle appeared by a vidco link on Zoom. Counsel for the appellant applied for leave to appeai against sentence only. Leave was granted by this court. Both counsel relied on written submissions which this court has considered in its decision. IJ

#### The Appellant's Submissions 20

Counsel for the appellant was critical o[ the Learned Trial Judge's approach to sentencing flor reason that shc disrcgardcd thc mitigating factors in this case and imposed a harsh sentence of l8 years. Counsel also challenged the Learned Trial Judge for not corresponding with

the parties prior to the approval and recording of thc plea-bargaining agreement. Counsel relied on Rule 4 of theJudicature (Plea llargain) Rules of 2016 and the authority of Luwaga Suleman aka Katongole v Uganda CACA No.858 OF 2014 wherc this court sct aside a l6-year ')a

sentence because there was no consultation between the court and Resident State Attorney.

Counsel prayed to this court to set aside the sentence and a lenient and reasonable sentence be handed to the appellanr.

#### The Respondent's Submissions

The respondent contended that the sentence o[ I8 years passed by the learned trialJudge was neither harsh nor excessive. He argued that rhe Learned TrialJudge considered all mitigating and aggravating factors.

- C)ne o[ the aggravating matters brought to the attention of thc I-earned TrialJudge was the fact that the appellant was an LDU Army officer who had a pre-meditated intention of killing rhe deceased. ln mirigation, the Learned Triai Judge considered the fact that the appellant was on remand for 3 years and a young man with a family of '10 - four dependants and that he was remorseful. Counsel further submitted that the Learned TrialJudge considered the 3 years that the appellant spent on remand and reduced the sentence from 18 years ro 15 years. Counsel for the respondent agreed with the finding of Learned Trial Judge and concluded that a sen[ence of lB years' 15 - imprisonment in the circumstances was lega[, counscI prayed that th is court upholds the trial courts sentence and dismisses the appeal. 20

## Consideration by Court

As a l" appellate court we are alive to our duty to re-appraisc and rcevaluate the whole record and that we are at liberty to arrive et our

own conclusions and make our own inferences about issues of law and fact. See rule 30(l) of thc Judicature (Court of Appeal Rules) Directions, S.ll3-10, Kifamunte v Uganda SCCA No. l0 of 1997. The appellant having withdrawn his I" ground of appeal, counsel for the appellant applied for leave to appeal against sentence only. Leave 25

was granted. This appeal is rherefore against sentence only. In Kyalimpa Edward v Uganda SCCA No. l0 o[ 1995 whilc rcfcrring ro R v Haviland (1983) 5 Cr. App. R(s) 109 rhe Supreme Courr laid down the principles upon which an appellate court may interfere with a sentcnce passed by the trial court,

"An appropriate sentence is a matter for the discretion o[ the sentencingJudge. Each case presents its own facts upon which aJudge exercises his discretion. It is the practicc tha[ irs an appellate court, this Court will not normally interferc rvith the discretion o[ the sentencingJudge unless the sentencc is illegal or unless court is satisfied that the sentence imposcd by rhc trial Judge was manifestly so excessivc as to amount to an injusticc'. See also; KamyaJohnson Wavamuno v Uganda SCCA No.16 of 2000, Kiwalabye Bernard v Uganda SCCA No. I43 of 2001, Livingstone Kakooza v Uganda SCCA No. 17 of 1993 funreportedl andJackson Zita v Uganda SCCA No. 19 ofl995. 15 10

We now delve into the fundamentals o[ this appeal with the above principles in mind. It is the appellant's contention that the plea bargain procedure was defective for reason that the trial court was neither informed nor consulted about plea bargain negotiations nor was its recommendation with regard to the possible sentence sought. We have perused the record of the trial court and it is evident that the 20

appellant voluntarily entered a plea bargain agreement rhe consequence that he would serve a sentence of imprisonmenr of l8 years.

"ACCUSSED PERSONS PLEA

I hereby freely and voluntarily plead GUILTY to the charges(s) above and agree to be sentenced to 18 years' imprisonment ..."

Rule 4 of the Judicature (Plea llargain) Rules 2016 defines a "plea s bargain" to mean the process of negotiation between an accused person and the prosecution, in which the accused person agrees to plead guilty in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend a particular sentence subject to approval by the court. 1o The same rule defines a piea bargain agreement to mean an agreement

entered into between the prosecution and an accused person regarding a charge or sentence against an accused person.

The appellant's contention is that the court was nor consulted before

approval of the plea bargain agreement.

Rule 8 of theJudicature (PIea llargain) Rules 2016 provides for court's participation in plea bargain agreements, precisely rhat,

"8. Court participation in plea bargain

(l) The court may participate in plea bargain discussions.

- (2) The parties shall inform court o[ the ongoing ple;r 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." 20 - 25 The rcasoning o[ this court ln Lwere Bosco v Uqanda CACA No.53l of 2016 is quite compelling:

"Severity of sentence as a ground of appeal cannot arise out of plea bargain proceedings because parties negotiate and agree voluntarily. A convict cannot later change his mind on appeal

faulting the trial judge whose discretion in the plea bargain proceedings is limited to confirming a sentence voluntarily initiated and agreed to by the parties to the agreement. The appellant cannot rurn around and argue that a sentence so approved was harsh and excessive for non-considerarion o[ mitigating factor because these factors are part of the negotiation. The accused person or his counsel must labour to inform court about the ongoing plea bargain ncgotiations and also consult court on its recommendations especia[.ly on the possible sentence before rhe agreement is brought to court [or approval and recording..."

In Iine with the above decision in Lwere we can safely conclude that it is the duty of the accused person or his counsel to inform the court about the ongoing plea bargain negotiations and to consult the court on its recommendations. The Learned Trial Judge cannot be faulted for executing an agreement as agreed by the parties. The failure to be consuited during the plea bargain negotiations cannot be visited on the trial Judge sincc there is no obligation placed on the courr to 15

initiate the consultation. 20

> ln this matter, the appellant pleaded guilty and voluntarily acceded to imprisonment for 18 years. The Learned Triai Judge confirmed and approved this sentence. The appellant now appeals on rhe grounds that the sentencc was a harsh and excessivc sentencc. Thc appellant relied on the aurhority of Luwaga Suleman aka Katongolc v Uganda CACA No.858 of 2014 where:

> > "The court found that the trial N4agistrate erred in law and in fact when she failed to follow the Judicature (Plea Bargain)

Rules 2016 which came into force onll412016. She ought to have assigned an advocate to the Appellant and encouraged the state Attorney to consult the victim with a view of settling the matter under plea bargain."

To distinguish Luwagafromthis matter it should be noted that in this matter before us, the appellant, Paul Keem, had proper represenration by an advocate of the High Court. This was uniike the circumstances in Luwaga where the appellant was not assigned an advocate due to the fact that he did not have the right, under the law, to representation . ln Luwaga rhere was a fundamental defect in the plea bargain proceedings. The appellant did not have representation. However, in this case, the appellant was ably represented by counsel, who explained to him his constirutional rights. He was duly informed

that by entering inro a plea bargain he was waving some o[ his rights. 15

Comparably, when this court in Lwere Bosco (supra) , set aside a plea bargain agreement for being defective the court found out thar during the process of entering the plea bargain, the appellant was not properly appraised of rhe waiver of his constltutional rights to a fair trial.

Both Luwaga and Lwere were found not to comply with the consultation requirement in Rule 8(2), and more importantly, both had defects that fundamentally compromised the appellant's

constirutional rights to a fair hearing. The above two citations are clearly distinguishable from rhe matter before us.

It is our considered view, therefore, that once an appellant freely and voluntarily agrees to enter a plea bargain, s/he cannot without good reason abrogate that agreement. Allowing this appeal would undermine the relevance and the objectives of plea bargaining in the criminal justice system.

We have already found as above that this plea bargain was in conformity with rules 9 and 3 of theJudicature (Plea Bargain) Rules 2016. As a result, we see no reason ro disturb the proceedings, 1o conviction, sentence and orders of the trialJudge. This appeal has no basis. It is herewith dismissed. Dared at Kampala rhis ...ltl a^y or.. Alh: .....................2023

# HON. LADY J USTICE HELLEN OBURA JUSTICE OF APPhAI-

I{ON. IADY J USTICE CATI{ERINh BAMUGEM EREIRE JUSTICE OF APPEAL

I{ON. J USTICh CI{RlSTOPtlER MADRAMA JUSTTCE OF