Opio v Uganda (Criminal Appeal No. 400 of 2015) [2022] UGCA 249 (4 October 2022)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPAI-A

# CRIMINAL APPEAL NO. O4OO OF 2OI5

(Coram: Bamugemereire, Madrama & Luswata, JJA)

oPr0 PAUL) APPELI-ANT

#### VERSUS

# UGANDA} RESPONDENT

(Appeal from the sentence ol'/banda Nahamya J of the High Court of Uganda at Nakawa Central Clrcuit Criminal Session Case No 179 of 2013 imposed on 2Vh of May 2014)

# JUDGMENT OF COURT

This is an appeaI against the decision of the learned triat judge imposing a sentence of 18 years' imprisonment Less the period spent in lawfuL custody of one year and seven months on the appetlant.

The appetLant was indicted for murder contrary to sections 188 and 189 20 the PenaI Code Act. lt was atleged in the charge sheet that the appel.tant, a security guard attached to Hash Security Company Ltd in Entebbe MunicipaLity on 8th 0ctober 2012 al Bugonga Vittage in Entebbe MunicipaLity with maLice aforethought untawfutly kitted Anviko Christine.

The prosecution and the defence executed a ptea bargain agreement in 2s which the appettant admitted the offence and agreed to be sentenced accord ing to the agreement.

The record of proceedings disclose that the facts as stated in the summary of case of the prosecution were admitted. The deceased was a casuaL [abourer and appell.ant had on severaI occasions tried to have an 30 affair with the deceased who refused whereupon the appellant often threatened to kiLl. her if she continued to refuse his advances. 0n 8'h 0ctober 2012, the appeLLant was armed and on duty and at 1 PM at the site

the appettant was threatening to kilt her because she refused his 3s advances. The deceased went atone and started serving Lunch and in a

the deceased went and served food and told one of her workmates that

5 short time gunshots were heard whereupon she was found tying in a pool of btood and the appellant was seen running away with his gun.

The appel.tant boarded a motorcycLe and was ridden to Entebbe potice station for safe custody where he reported himsel.f. The appetl.ant was examined and found to be of sound mind.

- 10 Pursuant to a ptea bargain agreement, the learned trial. judge accepted the pl.ea bargain therein but stated that she woutd accept it with a difference in the sentence whereupon she sentenced the appettant to 16 years and five months' imprisonment having amended the sentencing agreement to read 18 years' imprisonment. The learned triat judge then - deducted the period of one year and seven months that the appetLant had spent on remand before his sentence before imposing sentence. 15

The appell.ant was aggrieved and with the leave of this court, appealed to this court on one ground of appeaL namely:

That the triat judge erred in law and in fact when she imposed a sentence of 18 years'imprisonment on the appettant who had pteaded guitty to the offence, which is deemed to be harsh taking into account the circumstances of the case and considering the mitigating factors before sentencing. 20

At the hearing of the appeal., the appettant was represented by tearned counse[ Ms. Natute Shamim on state brief white the respondent was represented by the learned Chief State Attorney Mr. Kyomuhendo Joseph. The court was addressed in written submissrons.

ln the written submissions, the appeLtant submitted that the issue for determination in ground one is whether the sentence imposed by the learned trial. judge was harsh, excessive and itlegat considering the circumstances and the mitigating factors.

We do not have to set out al.[ the submissions of the appetLant's counsel but wiLt first deaL with the question of il,Legal.ity.

Appettant's counset submitted that it is evident from the record that the triaL judge ignored the sentence agreed upon in the pl'ea bargain agreement and sentenced the appel.tant to 18 years'imprisonment. She rel.ied on the ptea bargain procedures governed by the Judicature (Ptea Bargain) Rutes, 2016 and ruLe 4 thereof which defines a plea bargain to

- 5 mean the process between an accused person and the prosecution in which the accused person agrees to ptead guitty in exchange for an agreement by the prosecutor to drop one or more charges, or to reduce a charge to a tess serious offence or recommend a particutar sentence subject to approval by court. - She contended that once parties conctude the ptea bargaining process, the said process is reduced into a ptea bargain agreement which is meant to benefit the state and the accused person as wetl as the victim. The appeLl.ant's counseL further retied on rul.e 13 of the PLea Bargain RuLes, 20'16 which provides that the court may reject a plea bargain agreement 10 - when it is satisfied that the agreement may occasion a miscarriage of .lustrce and where the court re1ects the agreement, it shal.l. record the reasons and the agreement woutd become void and inadmissibte. Further the matter wouLd be referred for triat. She submitted that in the case of the appeltant, the agreement was amended to increase the 15 - sentence f rom 12 years to 20 years' imprisonment without the consent of the appettant. This meant that the appetlant did not benefit from the agreement. 20

The appetlant's counsel relied on Wangwe v Uganda; Criminat Appeat No 572 of 2014 where the accused had been sentenced to 18 years and 10 months' imprisonment which was beyond the sentence agreed upon by the prosecution of '15 years' imprisonment. The Court of Appeat found that the learned trial ludge erred when she sentenced the appeltant outside the plea bargain agreement to his prejudice. They set aside the sentence. Counsel atso retied on severaI other authorities to the same effect. 25

- 30 ln repty, the respondents counsel conceded that the sentence of 18 years and l0 months' imprisonment offended rute 13 of the Judicature (Ptea Bargain) RuLes and further conceded that the enhanced sentence is an ittegaLity according to the authority submitted by the appetl.ant's counseL. ln the premises, the respondent's counsel prayed that the court invokes - section 11 of the Judicature Act to substitute the sentence of 18 years and 10 months with a sentence of 12 years' imprisonment that had eartier bee n agreed upon. 35

# s Consideration of appeat.

We have carefuLly considered the appettant's appeaI which was argued with the leave of court against sentence and partiaLty on a point of [aw. The matter for consideration in the appeal is whether the sentence imposed on the appetlant is an il. Legatity. Where a sentence is ittegaL, it

10 has to be set aside.

The facts of this case as far as is retevant to the ground of appeaL is that the parties executed a plea bargain agreement. ln the plea bargain agreement under paragraph 5.2 thereof, it was agreed that the appel.tant woutd serve 12 years' imprisonment. The learned trial. judge added "ptus

1s eight (8) years". The addition was not part of the agreement. The record aLso clearty demonstrates that the learned triatjudge inter atia stated as foLtows:

ln this particutar matter, the prosecution and the defence counsel have submitted at [ength on aggravated factors and mitigating factors. The ptea 20 bargain agreement rs wetl articulated. I wi[[ accept the pLea bargain agreement but with a stight adjustment in the sentence....

> lwiLL reduce two years from the agreed sentence between you and the [awyers view under the Ptea Bargain Agreement.

Itherefore sentence you to a term of imprisonment of 18 (eighteen) years. lf 25 the period spent on remand of 1 year and ? months is deducted. You witl serve l6 years 5 months'term of imprisonment.

It is quite clear that the plea bargain agreement recommended a sentence of '12 years' imprisonment. The learned triat judge couLd not accept the plea bargain agreement without the sentence and she had no 30 power to amend the agreement to read 18 years' imprisonment. Ru[e 13 of the Judicature (Ptea Bargain) Rutes, 2016 is quite ctear in providing inter alia that the court may reject a ptea bargain agreement where it is satisfied that the agreement may occasion a miscarriage of justice. Secondty, it provides that where the court rejects the ptea bargain 3s agreement, it shatl record the reasons for rejection and inform the parties. Further that the agreement sha[[ become void and shatt be inadmissibte. Lastl.y the matter shatt be referred for triat.

- s ln the circumstances of this appeat, the learned triaLjudge did not fotlow the Ptea Bargain Rutes and instead of rejecting the agreement which she implicitty did, she accepted the agreement but tried to amend it by enhancing the period of imprisonment. By amending the agreement uniLateraLty, it was no Longer a pLea bargain agreement and it imposed a 10 sentence of the court without due process. The due process is that the indictment woul.d be read and the accused woutd be requested to pl.ead to the indictment and the court wouLd estabtish whether, if the accused pleads guiLty, the ptea is equivocaI or unequivocat. lf it is equivoca[, the matter shatl proceed for tria[. ln this matter, the appeLl.ant undertook to 1s ptead guiLty on the basis of an agreement in which he would accept a maximum penal.ty of 12 years' imprisonment. Enhancing the sentence by - the triat judge nuttified the ptea bargain agreement and the matter was supposed to be sent for triaI in the ordinary way.

The counsel of the parties agreed that the decision of this court in zo Wangwe v Uganda (Criminat Appeat Number 572 of 2014) was good law in that the court found inter aLia that:

With due respect, we find that the learned triaI judge erred when she sentenced the appellant outside the pLea bargain agreement, to his prejudice. According to the court record, the parties had participated in ptea bargain 25 agreement whereby they agreed upon a sentence of 15 years' imprisonment by the triat judge enhanced the sentence to 18 years and 10 months. Having done so, we find that the learned tria[ ]udge imposed an itlegaI sentence on the appettant. The sentence is, therefore hereby set aside.

The respondent's counseI prayed that we substitute the sentence of ]8 30 years and 10 months with a sentence of 12 years' imprisonment ear[ier agreed upon.

We agree that it is ctear that the parties agreed on'12 years' imprisonment and untess the matter is sent back for trial upon rejection of the plea bargain agreement, the onl'y sentence that the court can impose is 12 3s years or Less as that woutd not be pre.ludicial to the appell.ant. lf the learned trial judge was of the view that the sentence of 12 years' imprisonment was so low as to amount to an injustice, she ought to have rejected the ptea bargain agreement in its entirety and the agreement itse[f woul.d be inadmissible to even prove the guitt of the appeLtant. The

- 5 appetLant wouLd be presumed innocent untiI found guitty after trial' in terms of articl.e 28 (3) (a) of the Constitution which provides inter alia that: - (3) Every person who rs charged with a criminal offence sha[[ - - 10

(a) be presumed to be innocent until proved guitty or untit that person as pteaded guitty.

The appettant could not have pl.eaded guitty on the basis of an agreement which is rejected or amended. He pteaded guiLty on the basis of an agreement to be sentenced to 12 years' imprisonment. This was a compromise between the state and the accused person. The state did not have to caL[ witnesses thereby saving not onty costs but avoiding the possibiLity that some witnesses may be unable to prove the offence thereby Letting the appetl.ant go scot-free. The agreement benefited both the accused as well as the state. lt was up to the court to assess the reasonabteness of the agreement in terms of the sentence imposed and

in retation to the gravity of the offence. The court cannot accept one part of the agreement and reject the others. To do so woutd upset the objectives undertying the pLea bargain process which inctude the objectives inter al.ia to save the state the uncertainty of the tria[, the costs of the trial. and use of the courts time and resources. Where a case is for 20

triaL, the safeguards for ptea taking woutd be appl'ied to ensure that the pLea, if one of guitty, is unequivocal.. ln the circumstances of this appeat, the sentence was iLl.egal. and we accordingLy attow the appeat and set aside the sentence. ,q

Exercising the powers of this court under section 11 of the Judicature Act, which gives us the powers of the original' court, we accept the ptea bargain agreement. We wouLd accordingly impose on the appettant sentence of 12 years' imprisonment as agreed. ln accord with articLe 23 (8) of the Constitution, we are obliged to deduct from the agreed period, the period that the appetl.ant spent in pre-triaI detention before his conviction and sentence. Articte 23 (8) of the constitution provides that: 30 35

> (g) where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in tawfut custody in respect of the offence before the comptetion of his or her trial shatl be taken into account in imposing the term of imprisonment.

- 5 ln this case, because an agreed sentence is on record, the onl.y way of taking into account the period of one year and seven months that the appeLtant spent in LawfuI custody before his sentence is by deducting it from the 12 years agreed upon. ln the premises, the appettant sha[[ serve a sentence of 10 years and 5 months' imprisonment with effect from the 10 date of his conviction and sentence by the High Court on the 27th of May - 2014.

Dated at Kampata trl. do.v ot - olNu-zozz

15 Catherine Ba ugemererre

Justice of Appeat

Christopher Madrama

Justice of Appeat

E a K. Luswa

Justic Appeat