Okullo v Uganda (Criminal Appeal 188 of 2019) [2023] UGCA 235 (12 June 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA CRIMINAL APPEAL No.0188 OF 2019

### Coram

$\overline{5}$

[Egonda-Ntende, Bamugemereire & Mulyagonja JJA]

## OKULLO SOLOMON

## **OKELLO PATRICK alias BOY**

DOI OGWAL FRED ::::::::::::::::::::::::::::::::::::

$10$

#### VERSUS

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

## (Appeal from the decision of Dr Winnifred Nabisinde J in High Court Criminal Session No.52 of 2016 at Lira dated 26<sup>th</sup> March 2018)

Criminal Law – Aggravated Robbery c/s 285 & 286(2) of the Penal Code Act – Attempted Murder c/s 204 of The Penal Code Act –Sentence as a result of a Plea bargain agreement - *Time spent on remand not deducted – whether sentence was* illegal sentence - Harsh and Excessive sentence.

## JUDGMENT OF THE COURT

## Introduction

The appellants were jointly charged with ten others on various counts which included one count of Aggravated 25 Robbery contrary to sections $285 \& 286$ (2) and two counts of Attempted Murder contrary to section 204 of the Penal Code Act Cap 120 Laws of Uganda, respectively. At the start of the trial the DPP entered a nolle prosequi against A6, A7, A8, A9,

A10, A11 and A12. Soon thereafter, A1, A3 and A13 entered 30 a plea bargain. The rest of the accused person, including a juvenile offender were acquitted by Alexander Mackay Ajijji J after a protracted trial.

As a result, of the plea bargain agreement, the now three appellants, listed in no particular order, were sentenced to 20

5 years imprisonment on the count of Aggravated Robbery. On the two counts of Attempted Murder, the three were each sentenced to imprisonment for ten years. The sentences were to run concurrently.

#### Background 10

The briefbackground as can be gathered from the lower court record is that on the 27th day ofSeptember 2Ol5 at Kichope village, in Lira Municipality, Lira district, the appellants broke into and forcefully entered the victims' home. They stabbed the victims with a knife and left them with stab wounds. The appellants then robbed a one Karina Menezes ofher Acer laptop, a black Canon camera and other personal belongings. At the trial, the appellants entered a plea bargain agreement which resulted into their convictions. The appellants were sentenced to 20 years on the count of 15 20

- Aggravated Robbery and 10 years on the two counts of Attempted Murder, to be served concurrently. Dissatisfied with the sentence, the appellants appealed to this court against conviction and sentence on three grounds, specifically that: - 1. The Learned trial Judge erred in law and fact when she failed to consider each of the appellant's mitigating

factors before passing the final sentences against the appellants.

2. The Learned trial Judge erred in law when she failed to subtract the period the appellants spent on remand,

hence occasioning a miscarriage of justice.

3. The Learned trialJudge erred in law and fact when she passed a harsh and excessive sentence against the appellants, hence occasioning a miscarriage ofjustice.

At the hearing ofthe appeal, the appellants were represented by NUs Kunihira & Co. Advocates while the respondent was represented by Mr. Paul Julius Layoo for the DPP. The appellant was physically present in court. Both counsel relied on written submissions which shall be considered by this

court.

## Submissions for both Partiee

Counsel for the appellant dealt with each ground separately.

- On ground one counsel faulted the learned trial Judge for not taking into consideration the period spent on remand. Counsel relied on the authority of Kizito Senkula v Uganda CACA No.24 of 2001 where this court held that the period spent on remand ought to be set off from the sentence issued. 20 - On ground No.2, counsel for the appellant criticised the Iearned trial Judge for ignoring the appellant's mitigating factors which resulted into the learned trial Judge issuing a 25

sentence of 20 and 10 years which was harsh and excessive in the circumstances as the appellants were first time offenders and young citizens with responsibilities at their homes. Counsel then prayed to the court to reduce the sentences to 15 years imprisonment for aggravated robbery and 7 years for attempted murder.

## Submieaione for the Respondent

The respondent partly conceded and partly contended against the appeal. He handled ground 1 and 2 together while ground 3 was treated separately. Counsel for the respondent conceded that the learned trial Judge had not considered the mitigating factors because the proceedings on sentencing were missing from the record. Counsel further 10

- conceded that the learned trial Judge did not subtract the period of time the appellants spent on remand and that the sentence of 20 years the learned trial Judge imposed was an illegal sentence that ought to be set aside. Counsel submitted that the error could be cured under section 11 of Judicature 15 - Act Cap 13 which provides that this court has powers that are similar to those of the trial court. Counsel for the respondent prayed that this court sets aside the illegal sentence and deducts the time spent on remand. 20

On ground No.3, counsel embraced the sentence of 20 years

imprisonment issued by the Learned trial Judge as appropriate compared to the maximum sentence provided for by the law. Counsel contended that the circumstances under which the appellants committed the offences were so grave and that the appellants deserved the sentence imposed upon them. Counsel then prayed to the court to maintain the 20 years sentence that the parties agreed upon during plea

5 bargain as it was the sentence the trial court intended to impose but erred by not subtracting the period the appellants had spent on remand. Counsel prayed that the period spent on remand be deducted and the appellants be ordered to serve 16 years and 8 months' imprisonment, respectively.

## Consideration by Court

We have cautiously addressed our minds to the record, submissions of counsel and have considered the authorities relied on by both sides. We also studied and included other

authoritative precedents and material which were not supplied by counsel. I:)

We are conscious that as a first appellate court, we are required to re-appraise all the evidence adduced at the trial, draw inferences on questions of law and fact and arrive at

- our own conclusions.. We are mindful that we did not see the witnesses testifu. Seei Fr. Narceneio Begumiaa & Ore v Eric fibebaaga SCCA No.17 of 2OO2, Kifamunte Henry v Uganda SCCA No. 10 of 1997, The Executive Director of National Environmental Management Authority (NEMA v Solid 20 - State Limited SCCA No.l6 of 2016 (ureportcd and Pandya Vs R h96fl EA 336.

This appeal arose out of the dissatisfaction the appellants had with the sentence meted out to them as a result of a plea bargain agreement the three ofthem entered. To start with, we shall settle the grounds on severity ofsentence, which are

5 Grounds No. 1 and 3. It is on record that the appellants pleaded guilty and voluntarily entered into a plea bargain agreement for a sentence of 20 years imprisonment. This court in Lwere Boeco v Uganda CACA No.631 of 20 held that,

"Severity ofsentence as a ground ofappeal 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 turn around and argue that the sentence so approved was harsh and excessive for nonconsideration of mitigating factors because these factors are part ofthe negotiation..... 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 i2 (5) of the same rules makes the plea bargain 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." 10 15 20

The circumstances of this case are akin to the ones in the above excerpt. In the above extract from the decision ofl,were (supra), there was no ground upon which the court could consider the severity of sentence, the sentence having been arrived at during a bargain. Counsel for the appellant did not raise any ground that would have led this court to the departure from the agreements in the plea bargain.

We shall follow the above position. In addition, we examined the record and found that the learned trial Judge observed the procedure in Adan v R 1973 EA 446 and considered the appellants mitigating factors before passing sentence. While sentencing the appellant, the learned trial Judge made the following remarks: "Considering the mitigating circumstances and Aggravating circumstances, court is of the view that the 20 years imprisonment would be the best without deduction." 10 15

We wish to reiterate that in a plea bargain parties negotiate and agree voluntarily. The discretion of a trial Judge is fettered by the plea bargain arrangements since the parties agree on the conditions. An appeal will lie where a trial Judge departs from what the parties agreed. A plea bargain is essentially a plea of guilty, only that it is based on a written undertaking between the party entering the agreement and 20 25

the State. However, unlike a regular plea of guilty, in a plea bargain, the sentence cannot be appealed against unless there are flaws in the agreement or unless it offends the law. Apart from what will be discussed in the next segment regarding the time spent on remand, we have essentially found no obvious flaws in the plea bargain agreement to warrant its being set aside. Grounds No.1 and 3 of this appeal fail.

The appellants' second ground of appeal faults the Learned trial Judge for failing to deduct the period spent on remand from the sentence issued. For emphasis, the Learned trial Judge found that "...court is of the view that the 20 years imprisonment would be the best without dedustion. Ther€ are tbree oftBceo. 20 yeare without any deduction." 10

It is trite that an appellate court will not normally interfere with the discretion of the sentencing judge except for good reason. In Kiwalabye Bernard v Uganda, SCCA No. 143 of 2001, court 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 while passing the sentence or where the sentence imposed is wrong in principle.' 20 25

While sentencing, courts are guided by certain principles, all of which, mandate taking into account the period spent on remand. Article 23(8) of the Constitution of the Republic of

Uganda 1995, as amended stipulates that,

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

Furthermore, paragraph 15 of the Sentencing Guidelines requires that "(1) The court shall take into account any period spent on remand in determining an appropriate sentence.

(2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account." 15

The Supreme Court further clarified in Rwabugande Moses v Uga-uda SCCA No.26 of 2OL4, that a sentence arrived at without putting into consideration time spent on remand was illegal for failure to comply with mandatory constitutional provisions. See alao Segawa Joeeph v Uganda SCCA No.66 of 2016, N\$himolo PauI Kibolo v Uganda SCCA No.,16 of 2OL7. In the circumstances, it is evident that the learned trial Judge did not consider the time the appellants spent and did not specifically offset it from the sentence which had been 20 25

agreed upon. The failure to comply with a constitutional

obligation makes these sentences illegal leaving this court with no option but to set aside all the sentences of 20 years in Count No. 1 and of 10 years in each of Counts No. II and No. III. Ground No.2 of this appeal succeeds.

- Pursuant to section 11 of the Judicature Act, we now exercise $\mathsf{S}$ the powers of the trial court by taking into consideration the time spent on remand. Each of the three appellants spent 2 years and 3 months on remand. This period is hereby deducted from each of their sentences. - Setting off 2 years and 3 months from the 20 years $10$ imprisonment for Aggravated Robbery c/s $285$ and $286(2)$ of the PCA, each of the appellants shall serve a sentence of 17 years and 9 months imprisonment from the date of conviction. As regards the $2^{nd}$ and $3^{rd}$ counts of Attempted Murder - contrary to section 204 of the PCA, a deduction of the 2 years 15 and 3months spent on remand from the sentence of 10 years on each of Counts II and III means that in Counts II and III , and counts of Attempted Murder c/s 204 of the PCA each of the three appellants shall serve 7 years and 9 months imprisonment respectively. 20

The sentences against each appellant in Count I, II and III shall run concurrently. Signed and dated at Gulu this. day of $\ldots$ $\ldots$ $\ldots$ $\ldots$ 2023.

Fredrick Egonda-Ntende Justice of Appeal 30

Catherine Bamugemereire Justice ofAppeal

15 Irene Mulyagonja Justice of Appeal