Malinga John Robert v Uganda (Criminal Appeal 205 of 2019) [2023] UGCA 255 (6 September 2023)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

#### CRIMINAL APPEAL NO.205 OF 2019

(Coram: Cheborion Barishaki, Christopher Gashirabake, Oscar John Kihika, $JJA)$

# MALINGA JOHN ROBERT:::::::::::::::::::::::::::::::::::: 10 **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

(An appeal from a decision of the High Court of Uganda at Soroti before Justice Batema N. D. A dated the 11<sup>th</sup> day of January, 2018 arising from Criminal *Session Case No.0191 of 2016).*

### JUDGMENT OF THE COURT

#### **Introduction**

The appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act, CAP 120. It was alleged that on the 17<sup>th</sup> day of February, 2015 at Komolo Village, Ongongoja Subcounty in Katakwi

District, the appellant with malice aforethought unlawfully caused the death of Apolo Florence.

## **Background**

The appellant was husband to the deceased, Apolo Florence and it was alleged that he had at all times been brutal to her. On the 17<sup>th</sup> of February, 2015 at 25

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around 8pm, the appellant returned home from Aketa Health Centre, went to the house of his second wife, Opus Immaculate and ordered her to lock herself inside. The appellaat then proceeded to the house of his first wife, the deceased and removed the radio tJ:at the deceased was listening to. The deceased resisted this move and the appellant started beating her until she collapsed and became unconscious. 10

The incident was witnessed by their children and their step-mother, Opus Immaculate who also heard the cry and wailing of the deceased as she was being beaten. When the victim died, the appellant ordered his second wife, Opus Immaculate never to reveal that it was him who killed the deceased but

rather to say that the deceased committed suicide. The appellant then went with his second wife to his father who handed him over to Police. The appellant was consequently indicted, pleaded guilty following a plea agreement and was convicted and sentenced to 17 years imprisonment. 15

Being dissatisfred by the decision of the learned trial Judge, the appellant appealed to this Court on a sole ground that; 20

> BThe leanted trtal Judge erred, ln laut and fact uhen he sentenced. the appellant to 77 years lmprlsonment ln dlsregard oJ the plea bargaln qreement uhereln the appellant had bargalned or consented. to 75 gears lmprlsonm.cnt ma,Irl,ng the sentence lllegal'

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# <sup>5</sup> Repreaentatlon

At the hearing of tJ:e appeal, Mr. Mooli Allan appeared for tJle appellant while the respondent was represented by Ms. Immaculate Angutoko, Chief State Attorney holding brief for Oola Sam.

# Subnlrslons of counsel

- Counsel for the appellant submitted that the appellant had informed Court tJlat he had bargained for a sentence of7 years through the plea bargaining process and this was because he was sick and had a bullet wound. Further t]1at the Court advised the appellant to sign for a higher sentence as the term of 7 years was so low. The appellant then consulted his lawyer and while praying for leniency increased the term to 9 years and the same was refused by Court. He added that counsel for the appellant informed Court that the appellant had bargained and agreed on 15 years and the Court advised the parties to sign the agreement but with the remand period inclusive to make 17 years and the appellant serves 15 years. Indeed, a plea bargain agreement 10 15 - in respect of manslaughter was signed by the parties and endorsed by the leamed trial Judge. 20

Counsel further submitted that it was not indicated anyrvhere in the record that the appellant accepted to serve a sentence of 17 years as enhanced by the learned trial Judge save for the alterations that appeared on the plea bargain form. He added that neither t.l.e appellant nor his lawyer counter signed on the alteration changing the agreed sentence from 15 years to 17 years imprisonment. Counsel further submitted that in light of Article 23(8) of the Constitution, the appellant had agreed to serve a period of 15 years on 3lPage


5 which the period spent on remand was to be deducted and thus the enhanced sentence of 17 years was illegal and in contravention of rule 15(2) and (3) of the Judicature (Plea Bargain) Rules, 2O16. He relied ort Emutodu Amos V Uganda, Coutt of Appeal Crlm:lnal Appcal No,748 oJ 2O16 where this Court set aside the sentence of 20 years' imprisonment since the appellant 10 had not bargained for it but rather for a sentence of 15 years. He prayed that this Court sets aside the sentence of 17 years and substitutes it with 15 years less the period that the appellant had spent on remand.

# Respondent's submlsslons

In reply, counsel for the respondent conceded to the appeal and submitted 15 tJ:at the learned trial Judge did not follow t1.e procedure for taking a plea and the resultant sentence was therefore illegal. Counsel further submitted that it was the duty of Court to subject the record to a fresh and exhaustive scrutiny and draw its own conclusion of facts. That from the record, it was not clear what charge the appellant was convicted of and neither does it 20 indicate whether the facts of the case were read by the prosecutor. Counsel added that section 6O of the Trial on Indictments Act required that the

indictment be read over and explained to the accused and the accused person is required to plead instantly to the indictment and further section 63 of the same Act states that if the accused pleads guilty, the plea shall be recorded 25 and he or she may be convicted on it. He relied on Adan V Republlc (1973) EA 445 for the procedure of recording a plea of guilty.

Counsel further submitted that the learned trial Judge did not comply with the procedure for executing a plea bargain agreement under the Judicature

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- <sup>5</sup> (Plea Bargain) Rules, 2O16. Counsel submitted that the learned trial Judge did not enter a conviction against the appellant. That the learned trial Judge only stated that the parties should sign the agreement but with the remand period inclusive that is 17 years and the appellant serves 15 years. He relied on Oronl Basll V Uganda, Court of Appedl Cdmlna,l Appeal No. O742 oJ - 2O78 where this Court quashed the appellant's conviction and remitted \*re file back to High Court to take the Appellant's plea afresh. 10

# Submlsslons ln reJolnder

Counsel for the appellant submitted in rejoinder tllat it was on record that the Appellant was represented by Counsel Ariko who was on State Brief and it was reflected at page 16 of tJle record of appeal that the said Counsel sigrred ttre plea bargain agreement as counsel for the Appellant as well as the Appellant. Counsel further submitted that in the instant appeal, the charge of manslaughter was read and explained to the Appellant in a language which he understood and agreed to the facts and the authority of Oronl Ba.sll V 15

Uganda, Court ol Appeal Crlmlnal Appeal No.742 oJ 2078 was distinguishable from the instant appeal. 20

Counsel contended tJlat the case of Oronl (supraf envisaged plea taking in the normal hearing unlike in the instant Appeal where there was a plea bargain agreement showing that the charge had been reduced from murder

to manslaughter and the same had been explained to the Appellant. Further that page 17 of the record of appeal indicated that the charge had been translated to the Appellant through an interpreter. Counsel further contended that the charge of manslaughter was explained to the Appellant during trial 25

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- <sup>5</sup> and that there was no objection raised by Counsel on state brief although the learned trial Judge omitted to record t}re same. He added that the appellant conceded to the fact that there was lapse on the side of the trial Judge when he did not comply with Rule 12 of the Plea bargain Rules that require recording the plea bargain proceedings. - Counsel submitted that the appellant was not challenging the conviction but rather the trial Judge's disregard of tJle 15 years' imprisonment that was agreed upon in the Plea Bargain Agreement. He prayed that this Court sets aside the 17 years imprisonment and substitutes it with 15 years imprisonment agreed upon in the plea bargain agreement and further remits 10 - the lile to the High Court for purposes of recording the plea bargain proceedings as was in the case of Wesamba Adann V Uganda, Crlmlnal Appeal No.7O7 oJ 2O2O where this Court directed that the matter be heard by arrother Judge for t1:e purpose of recording the proceedings of plea bargain. 15

# Resolutlon of Court

We have studied the Court record, carefully considered the submissions for both counsel and the authorities availed to this Court. 20

The duty of this Court is to reappraise the evidence and draw inferences of fact. Further, the first appellant Court has a duty to review ttre evidence of the case and to reconsider the materials before the trial Judge. The appellate

Court must then make up its own mind, not disregarding the judgement appealed from, but carefully weighing and considering it. See Rule 3O(7) oJ the Rules oJ thls Court and K{amunte Henry V Uganda, &tpreme Court Crllmlnal Appeal No.70 oJ 1997.

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<sup>5</sup> The Iearned trial Judge is faulted for sentencing the appellant to 17 yea-rs imprisonment in disregard of the plea bargain agreement wherein the appellant had bargained or consented to 15 years imprisonment making the sentence illegal.

Counsel for the respondent submitted that not only did the learned trial Judge disregard the 15 years sentence that the Appellant had bargained for in tl:e Plea Bargaining Agreement but also did not follow the procedure for taking plea and the resultant sentence was therefore illegal.

In his rejoinder, counsel for the appellant submitted that the charge of manslaughter was read and explained to the appellant during trial but the learned trial Judge omitted to record the same. He conceded that there was lapse on the part of the learned trial Judge when he did not comply with Rule 12 of the Plea Bargain Rules that require recording the plea bargain proceedings.

The record of proceedings indicates as follows;

'77/O7/2Ola: Accrsed lnthe dock Seera for Stdte Arlko on State BrleJ Ec|,ttu lnteryrreter Accused: I plead gullty to the murder of Apolo Florence, my ulfe dt Komolo Vlllage, Katakrol. CourA: Plea of gulltg entered 20 25

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BATEMA N. D. A

# $\boldsymbol{JU D G E}$

| | Accused: | The facts are true and correct. My two wives | |----|----------|-----------------------------------------------------------| | | | fought over a radio, in the process of separating | | | | them I pushed her away she fell down and died. | | 10 | Ariko: | We bargained on charges of manslaughter. They | | | | fought over a radio. | | | Accused: | I bargained for 07 years. He is sickly and has a $\alpha$ | | | | bullet wound. | | | Court: | Sign for a higher term, $07$ is so low. | | 15 | Accused: | (Consults lawyer) I increase. I pray for leniency | | | | 09 years. | | | Court: | No bargain again case stood over | | | | BATEMA N. D. A | | | | <b>JUDGE</b> | | 20 | | 11/01/2018 | | | Later: | | | | Ariko: | We bargained and agreed on 15 years. | | | Court: | Sign the agreement but with remand inclusive. | | | | That is 17 years serve 15 years at Luzira Upper | | 25 | | prison. |

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### <sup>5</sup> BATEMA N. D. A

### JUDGE

# <sup>7</sup>7/O7/2O78'

We note from the record that the learned trial Judge did not record the fact that the charges had been read to the appellant however the Appellant's response was recorded as; "I plead guilty to the murder of Apolo Florence, my wife at Komolo Village, Katakwi" and t.l e learned trial Judge noted, "Plea of guilty entered". This in our view implied that tJ.e Appellant was responding to the charges that had been read to him. Further, the Appellant stated, "the facts are true and correct. My two wives fought over a radio, in the process of separating tJrem I pushed her away, she fell down and died." We therefore, agree with counsel for the Appellant that the charge was read and facts explained to the Appellant during trial but the learned trial Judge omitted to record the same. 10 15

The procedure for recording a plea of guilty was laid down in Ad.an V Relrubllc (1973) EA 445 at page 446 as follows:

" When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own langaage, but if that is not possible, then in a language which he can speak and understand. The magistrate slould then explain to the accused person all the essential ingredients of the offence charged. If the accused tlen admits all tle essential elements, ttte magistrate should record uhat tle accused fir;s said, as nearlg as possible in his oun words, and then formallg enter a

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- plea of gltiltg. The magistrate should nert ask the prosecutor to state tlLe facts of tle alleged offence and, uhen the statement is complete, should giue th.e acansed an opportunitg to dispute or explain tle focts or to add ang releuant facts. If the acansed does not agree with tLe statement of facts or asserts additional facts uthich" if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guiltg" and proceed to hold a tial. If the acansed does not deng the alleged facts in any material respect, tle magistrate should record a conuiction and proceed to hear ang further facts releuant to sentence. Tle statement of facts and the acansed's replg mttst, o;f course, be recorded." 10 - We note that although the learned trial Judge omitted to record that the charge and facts had been read and explained to the Appellant, the appellant's responses on record indicate that the charge and facts had been read to him. We therefore do not agree with counsel for the Respondent that the learned trial Judge did not follow the procedure for plea taking. 15 - Sectloa 139(1) of the ?fro,l on Indlctm,en,ts Act provides that subject to the provisions of any written law, no frnding, sentence or order passed by the High Court shall be reversed or altered on appeal on account ofany error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice. 20 25

It was submitted for the Appellant that they were mindful of the mandatory requirement which is intended to preserve the Appellant's non derogable

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- <sup>5</sup> constitutional right to a fair hearing but the Appellant was not challenging the conviction but rather the trial Judge disregarding the 15 years period bargained for in the Plea Bargain Agreement. This in our view meant that failure by the learned trial Judge to record that the charges had been read to the appellant did not occasion a miscarriage ofjustice. - Counsel for the Appellant submitted that there was a lapse on the side of the learned trial Judge when he failed to comply with Rule 12 of the Judicature (Plea Bargain) Rules, 2016 that require recording of the plea bargain proceedings. 10

## Rule 12 ol the &tdlcqture (Plea Bargaln) Rules,2OI6 provides as follows:

- 1) Subject to ttle procedure prescribed in the schedule 2, the Court shall inform t}le accused person of his or her rights, and shall satisfy itself that the accused understands the following-15 - a) t}te right- - i. to plead not guilty, or having already so pleaded, the effect of that plea; - ii. to 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 Court, to legal representation at the expense of the state 25

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<sup>5</sup> b) that by accepting the plea bargain agreement, he or she is waiving his or her right as provided for under paragraph (a);

c) the nature of the charge he or she is pleading to;

- d) aly maximum possible penalty, including imprisonment, fines, communit;r service order, probation or conditional discharge; - e) any applicable forfeiture; - f) the Court's authority to order compensation and restitution or both; and - g) that by entering into a plea bargain, he or she is waiving the right to appeal except as to the legality or severity of sentence or if ttre Judge sentences tl:e accused outside tJle agreement. - 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 Court the factual basis contained

in the plea bargain agreement and the Court shall determine whether there exists a basis for the agreement.

- 4) The accused person shall freely and voluntarily without threat or use of force, execute the agreement with full understanding of all matters. - 5) A plea Bargain Confirmation shall be sigrred by the parties before the presiding Judicial Officer in the Form set out in the Schedule 3 and sha-ll become part of the Court record and shall be binding on the prosecution and the accused.

12 lPaBe

<sup>5</sup> It is important that an accused person who wishes to plead guilty whether under a plea bargain agreement or otherwise should be explained to properly about his or her constitutional rights to a fair tria-l and confirm that his plea is unequivocal with full knowledge of the consequences thereof. The Court is obliged under the rules to embrace plea bargain any time before sentence when either party before it expresses interest in the process unless it is intended to pervert the cause of justice. See Inensko Adanns V Uganda, HCCA No. OO4 of 2O17 cited with approval by this Court in Luuaga Sulrlllnan V Ugand.a" Crlmlnal Appeal No.858 of 2O14 10

Although the record shows that the Appellant took plea and pleaded guilty, it is silent as to whether the appellant had a full understanding of the plea bargain procedure. The Court was by the provisions of RuIe 12 of the Plea Bargain Rules under duty to explain this to him but it did not do so.

The issue before this Court is whether the learned trial Judge can in the presence of a plea bargain agreement substitute a sentence agreed to by the

parties in plea bargaining for his or her own sentence arrived at his discretion. We shall analyse the said Plea Bargain Agreement. 20

Rule 8 of the Judicature (Plea Bargain) Rules, 2016, provides for the Court's participation in the plea bargain negotiations. 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.

The record shows that the learned trial Judge was informed by counsel Ariko on State Brief that the parties had bargained on charges of manslaughter. 13 lPage

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5 There was no consultation on Court's recommendations with regard to possible sentence prior to Court's approval. The learned trial Judge rejected the bargained sentence twice without offering any recommendation for a possible sentence. Further, there were no mitigating factors taken into consideration as page 13 of the record does not indicate that any mitigating 10 factors were considered. The same agreement indicates that tJ:e parties had agreed to a sentence of 7 years but the same was cancelled and replaced with 17 years. There was no evidence to show that the Appellant ever agreed to this sentence because neither him nor his advocate counter signed on the a-lteration to the proposed sentence of 17 years. The Appellant's Lawyer 15 informed Court that the parties had bargained and agreed on a sentence of 15 years but the learned trial Judge told the parties to sign the agreement for a sentence of 17 years with the remand period inclusive and that the Appellant serves a 1S-year sentence at Ltzrra Upper prison.

The objectives of the Plea Bargain process are enumerated under rule 3(b) (c) 20 (d) (e) (0 of the Plea Bargain Rules (Supra) as follows;

"To enable th.e acansed and the prosecution in consultation uith the uictim to reoch an amicable agreement on an appropiate punishmen| to facilitate reduction in case backlog and prison congestion, to encourage tle accused persons to oun up to tLeir criminal responsibilitg and to 25 inuolue the uictim in tle adjudication process."

Rule 4 of the Plea Bargain Rules defines plea bargaining as the process 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

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5 one or more of the charges, reduce a charge to a less serious offence or recommend a particular sentence subject to approval by Court.

The Plea Bargain Agreement indicates that the parties had amended the offence charged to manslaughter but the learned trial Judge indicated in the warrant of commitment that t}re Appellant had been convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to 17 years from which he shall serve a sentence of 15 years. We note that the Iearned trial Judge did not enter a conviction against the Appellant. He merely stated that "sigrr the agreement but with remand inclusive. That is 17 years serve 15 years at Luzira upper prison". Not only was tJlis sentence vague but was also merely imposed on the Appellant despite the plea bargain process. There was evidence to show that the appellant indeed bargained for a sentence of 17 years. The process on Plea Bargain is

20 We note that in the record counsel Ariko Charles informed Court tllat the parties had bargained and agreed on 15 years. However the said 15 year sentence was not indicated anywhere in the Plea Bargain Agreement. The said agreement indicates a sentence of 7 years which was later cancelled and replaced with 17 years.

intended to serve the interests of the appellant, the victim and the State.

In our view, the Plea Bargain Agreement was filled with glaring errors and failure to follow tle procedure ofrecording a plea bargain agreement by Court. This occasioned a miscarriage ofjustice which this Court cannot condone. We frnd that the said Plea Bargain Agreement was defective. We accordingly set it aside.

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5 Counsel for the appellant prayed that this Court sets aside the sentence of 17 years imprisonment and substitutes tl:e same with 15 years' imprisonment less the time the appellant had spent on remand.

Counsel for the respondent proposed that this Court sets aside the sentence against the appellant and order tl.at the file be remitted back to the High Court to take the appellant's plea afresh.

This Court was faced with a similar situation in the case ol Sempffa Brlant V Uganda, Court of Appeal Crlmlna,l Appeal No.566 o/2OI4 where Court set aside the sentence of 23 years imprisonment imposed by the trial Court for murder for being illegal because it was longer than the sentence of <sup>18</sup> years agreed to in the Plea Bargain Agreement.

In Wangue Robera V Uganda, Court, oJ Appeal Crlmlnal Appeal No,O572 ot: 2074, the trial Court had sentenced the appellant to a higher sentence than the one agreed to in the Plea Bargain Agreement. This Court set aside the said sentence and proceeded to impose a sentence equivalent to what had been agreed to in the Agreement.

Because the appellant had properly taken plea at the beginning of the trial and was convicted of murder on his own plea of guilty, we invoke the provisions of section 1 1 of the Judiccature Act that grants this Court the same powers as that of the trial Court to impose a sentence we consider appropriate.

25 In imposing a fresh sentence, we are mindful of the terms of the Plea Bargain Agreement between the Prosecution and the appellant.

- We therefore, impose a sentence of 15 years imprisonment agreed upon by $\mathsf{S}$ the parties in the Plea Bargain Agreement. From that sentence, we deduct the 2 years, 11 months and 6 days that the appellant had spent on remand. The appellant shall therefore serve a sentence of 12 years and 25 days, to run from 11<sup>th</sup> January, 2018, the date of conviction. - We so order 10

Dated at Mbale this .................................... $\frac{1}{2023}$

Cheborion Barishaki

## **JUSTICE OF APPEAL**

Christopher Gashirabake

## **JUSTICE OF APPEAL**

Oscar Joh

**JUSTICE OF APPEAL**

15