Luswata v Uganda (Criminal Appeal 98 of 2015) [2023] UGCA 203 (10 August 2023)

#### THE REPUBTIC OF UGANDA

### IN THE COURT OF APPEAT OF UGANDA AT FORT PORTAT

(Corom: Buteero, DCJ, Mulyogonio & Luswoto, JJA) CRIMINAL APPEAT NO. 98 OF 2015

s IUSWATA DESIRE APPEttANT

#### VERSUS

## UGANDA RESPONDENT

(Appeol from the decision of the High Court of Ugondo he/d of Nokowo before Hon. Mr. Justice Wilson Moso/u Musene delivered on <sup>I</sup>9tn Morch 201 5 in Criminol Session Cose No. I 63 of 201 5)

#### JUDGMENT OT THE COURI

#### !NTRODUCTION

15 20 The oppellont wos indicted ond convicted of lhe offence of oggrovoied defilemeni conlrory to section 129 (3l,ond (4) (o) ond (d) of the Penol Code Acl (Cop 120). The oppellont pleoded guilty ofter o pleo borgoin process ond prosecution recommended o sentence of imprisonment of l7 yeors. The leorned triol Judge senlenced the oppellont to the recommended sentence. He deducted the period of 1 yeor thot ihe oppellont spent on remond ond the oppellont wos to serve l5 yeors' imprisonment.

#### BACKGROUND

The focls of this cose os oscertoined from ihe couri record ore thot Luswoio Desire, the oppellont, on llih June 2014, found lhe viciim ot her ount's home tethering o colf. He instructed her to do so quickly ond follow him. The oppellont took the victim to the bush ond hod sexuol intercourse wiih her. While still in lhe oct, the victim's ount colled her. This prompted the oppellont to run owoy. The victim's ounl ,W/t\*lL

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made an alarm that led to the arrest of the appellant by the area LC I Chairperson who handed him over to police.

The victim was examined on PF 3A and was found to be 12 years old with her labia majora soiled with semen dripping from the vaginal canal. The appellant was also examined on PF24A and found to be 21 years old with a sound mental state.

When the appellant appeared for plea taking, he pleaded guilty to the offence, having been engaged in a plea bargain process. He was convicted on his own plea of guilty and sentenced to imprisonment for seventeen (17) years, the period the appellant had agreed to be sentenced to. The appellant is dissatisfied with the sentence, hence this appeal.

## **Ground of Appeal**

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The learned trial judge erred in law and fact when he confirmed a harsh and excessive sentence of 17 years' imprisonment arising from an irregular plea bargain agreement.

## **REPRESENTATION**

At the hearing, Mr. Muhumuza Samuel represented the appellant on state brief. Mr. Ssemalemba Simon Peter, Assistant Director of Public 20 Prosecutions, represented the respondent. Counsel for the respective parties filed written submissions. They applied to court and were granted leave to adopt and rely upon them as their final submissions.

# **APPELLANT'S SUBMISSIONS**

Counsel for the appellant applied for leave to appeal against 25 sentence alone and court granted him the leave. He stated that plea bargain is guided by the Judicature (Plea Bargain) Rules 2016. It is defined in Rule 4 as the process between an accused person and the prosecution, in which an accused person agrees to plead guilty in

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exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offence, or recommend a particular sentence, subject to approval by court.

Counsel submitted that the record does not indicate that the High Court participated in the plea bargain. He submitted that court must $\mathsf{S}$ be involved in the process of plea bargain up to the stage of signing the agreement. It was submitted for the appellant that it is not enough for counsel and the State Attorney to negotiate everything and simply bring the plea bargain agreement to court for its endorsement.

That the court record shows that court was never involved in the plea 10 bargain negotiations. This is because the appellant's advocate signed the plea bargain agreement on 9<sup>th</sup> March 2015, yet the State Attorney signed it on 17<sup>th</sup> March, 2015, but the appellant appeared in court on 19<sup>th</sup> March, 2015, the very day he was convicted and

sentenced. Counsel submitted that there was no meeting of minds of 15 the appellant's advocate, the State Attorney and the court before 19<sup>th</sup> March, 2015. Further, that the agreement was never signed by the trial Judge which counsel considered strange.

Counsel further submitted that the plea bargain agreement was not translated to the appellant since the section for the interpreter's 20 signature was not signed. This rendered the plea bargain agreement irregular and ought to be set aside.

Counsel for the appellant prayed that court sets aside the plea bargain agreement and invokes its powers under section 11 of the

Judicature Act to reduce the appellant's sentence to 10 years' 25 imprisonment and the same run from the date of conviction, and that the period spent in lawful detention prior to his conviction be considered.

In support of his submissions, counsel relied on **LWERE BOSCO VS.** UGANDA C. A. CRIMINAL APPEAL NO. 531 OF 2016 where a plea

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bargain agreement was set aside. Court held that Rule 8 of the same Rules provides for court's participation in plea bargain negotiation.

### **RESPONDENT'S SUBMISSIONS**

Counsel for the respondent conceded that the plea bargain agreement was irregular because the learned trial Judge did not sign $\mathsf{S}$ the plea bargain agreement before convicting the appellant. He further submitted that Rule 8 (1) of the Judicature (Plea Bargain) Rules was not complied with because the learned trial judge only read the charge and facts to the appellant. That court was not informed of the bargain negotiations and consulted on its ongoing plea 10 recommendations with regard to the possible sentence, prior to confirmation of the same.

Counsel for the respondent argued that in this case, the appellant was properly convicted since the charge and facts of the case were properly explained to him in accordance with the procedure of plea 15 taking enunciated in the case of ADAN VS R CRIMINAL APPEAL NO. 58 OF 1973. It was held that the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands, and if he admits to committing the offence, a plea of guilty should be recorded. 20

Counsel went on to submit that court should invoke its powers under Section 11 of the Judicature Act and maintain the sentence of 17 years' imprisonment passed against the appellant in the lower court as appropriate in the circumstances. He relied on **CANDIGA SWADICK**

VS UGANDA C. A. CRIMINAL APPEAL 23 OF 2012 where the appellant's 25 appeal to this court against a sentence of 18 years on the charge of aggravated defilement, was dismissed and the sentence maintained.

## **RESOLUTION BY THE COURT**

We have carefully studied the record of appeal and considered the written submissions of both counsel as well as the law and authorities 30

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cited. This being an appeal against sentence, we are alive to the law that adverns the circumstances under which an appellate court may interfere with the trial court's sentencing discretion. In **KIWALABYE** BENARD VS UGANDA CRIMINAL APPEAL NO. 143 OF 2001, it was held that:

> "The appellate court is not to interfere with the sentence imposed by a trial Court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle."

In KAMYA JOHNSON WAVAMUNO VS UGANDA CRIMINAL APPEAL NO 15 16 OF 2000, the Supreme court held:

> "It is well settled that the Court of appeal will not interfere with the exercise of discretion unless there has been a failure to exercise a discretion, or a failure to take into account a material consideration, or taking into account an immaterial consideration or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently."

To establish whether the sentence given by the learned trial judge was harsh or excessive, we have looked at the sentencing ruling. The 25 learned trial Judge read the charge and the summary of the facts of the offence to the appellant. The appellant confirmed that they were correct and a plea of guilty was entered. Prosecution informed court that a sentence had been agreed upon via a Plea Bargain Agreement, which position was confirmed by counsel for the 30 appellant. The learned trial Judge proceeded to confirm the

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sentence and from it, he deducted the one year that the appellant spent on remand. in the result, he sentenced the appellant to 16 years' imprisonment.

Counsel for the appellant challenged the Plea Bargain Agreement for being irregular since the trial judge and the interpreter did not sign it. $\mathsf{S}$ The question is whether the failure of the two parties to sign to sign the agreement prejudiced the appellant in any way. We would answer that in the negative. This is because the appellant was represented by an advocate and she confirmed to court that the appellant had pleaded guilty and negotiated a sentence. In our view, the omission 10 to sign did not in any way make the appellant's plea unequivocal as to visit any miscarriage of justice on him. We find this to be one such circumstances envisioned under section 34 (1) of the Criminal Procedure Code Act.

As to whether the agreed sentence was harsh and excessive and 15 warranting this court's interference, we make recourse to cases where this court has had occasion to state the circumstances under which it can interfere with a sentence imposed by a lower court in Naturinda Amon Versus Uganda Criminal Appeal No. 95 of 2010. The Court held:

"As an appellate Court, we can only interfere with a 20 sentence imposed by a trial Court in very limited circumstances. We can do so only where the sentence is either illegal, or founded upon a wrong principle of the law, or the Court has failed to consider a material factor. We can also do so if the sentence is harsh and manifestly 25 excessive in the circumstance - (see James vs $R$ . (1950) 18 E. A. C. A. 147, Ogalo s/o Owoura vs R. (1954)24 E. A. C. A. 270, Kizito Senkula vs Uganda - S. C. Crim. Appeal No. 24 of 2001, Bashir Ssali vs Uganda - S. C. Crim. Appeal No. 40 of 2003, and Ninsiima Gilbert vs Uganda - C. A. Crim. Appeal 30 No. 180 of 2010). Outside of that, this Court will not interfere

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with the trial Court's sentence even if we would have imposed a different sentence".

We are equally alive to the legal position that seeks to protect the essence of the process of plea bargain. In Lwere Bosco Versus Uganda Criminal Appeal No. 531 of 2016, this Court held: -

> "Allowing convicts to appeal against sentences they freely and voluntarily agreed to in the first place without good reason would in our view undermine the relevancy and the objectives of Plea bargaining in our criminal justice system.

Rule $12(5)$ of the same rules makes the plea bargain 10 agreement binding on the parties. Even then, Rule 14 gives an accused person an opportunity to withdraw a plea bargain agreement before court passes sentence".

In the circumstances, and in light of the authorities cited above, we find no reason to interfere with the sentence imposed upon the 15 appellant by the trial court. This is because he agreed to it.

In the result, we find that this appeal has no merit. It is accordingly dismissed. The appellant shall continue to serve his sentence of 16 years' imprisonment, from the date of conviction on 19<sup>th</sup> March 2015.

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DATED AT Fort Portal this.................................... 20

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

RENE MULY ACTION JUSTICE OF APPEAL

EVA K. LUSWATA JUSTICE OF APPEAL

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