Pande aka Kato Isa v Uganda (Criminal Appeal No. 233 of 2015) [2022] UGCA 178 (28 June 2022)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBARARA

## CRIMINAL APPEAL NO. 0233 OF 2OI5

(Coram: Bamugemereire, Madrama & Luswata, JJA)

PANDE FRED aka KAT0ISA) APPELLANT

## VERSUS

### UGANDA} RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakawa, Kampala in Criminal Session Case No 147 of 2014 before Nahamya J delivered on 24th June, 2015)

## JUDGMENT OF COURT

The Appeltant was indicted for the offences of Murder and Aggravated Robbery contrary to sections 188 and '189 and section 285 and 286 of the PenaI Code Act respectivety. The facts are that on 29th Juty 2013 at Buto Zone Bweyogerere Parish, Kira Town CounciI Wakiso district, the 20 appettant robbed Ha[ima Musana and thereafter murdered her. The appettant pteaded guitty pursuant to a ptea bargain agreement with the prosecution to ptead guilty to the charges and be sentenced to l5 years imprisonment on both counts. Upon his conviction, the learned triatjudge sentenced the appettant to 20 years imprisonment on both counts.

2s The appetlant was dissatisfied with the sentences imposed by the learned triat judge and appealed to this court on one ground of appeaI t hat:

The trial judge erred in law and fact when she imposed the sentences of 20 years imprisonment on the appettant who had pteaded guitty to the offences, which is deemed to be harsh taking into account the circumstances of this case and considering the mitigating facto rs before sentencing.

The appeltant prayed that the court be pleased to allow the appeaI and set aside both sentences and impose an appropriate sentence.

5 When the appeat came for hearing, Mr. 0ota Sam the learned Senior Assistant DPP appeared for the respondent while learned counsel Ms Shamim Nalule appeared for the appettant on state brief. The appettant attended court via video tink from Luzira prison.

With the leave of court, the appellant's counsel addressed the court in an appea I against sentence only. 10

ln the written submissions, the gist of the appettant submissions is that there was a ptea bargain agreement in which the appeltant accepted to ptead guitty and be sentenced to l5 years imprisonment. She retied on The Judicature ( Ptea Bargain) Rutes 2016 for the definition of a plea bargain under rule 4 thereof to mean the process between an accused person and a prosecution in which the accused person agrees to ptead guilty in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offence or recommend

- a parlicu[ar sentence subject to approvaI by court. She submitted that the ptea bargain process is intended to benefit the accused, the victim and the state. Further rule 13 of the Plea Bargain Rutes (supra) attows the court to reject a plea bargain agreement where it is satisfied that the agreement may occasion a miscarriage of justice. Where the court rejects the ptea bargain agreement, it shatt record the reasons for 20 - rejection and inform the parties and the agreement sha[[ become void and be inadmissible. Thirdly the case shatt be referred for trial. Counsel relied on Wangwe v Uganda; (Criminat Appeal Number 572 of 2014) where this court hetd that the learned triat Judge erred when she sentenced the appettant outside the ptea bargain agreement to his prejudice. 25 - ln repty, the learned Senior Asst DPP conceded to the appeal and agreed that the court ought to sentence the appettant to 15 years as agreed and further that the period of l year and l0 months ought to be deducted from the appropriate sentence under artic[e 23 (8) of the Constitution of the Repubtic of Uganda leaving the appettant to serve 13 years and two 30 - months from the date of conviction. 35

# Judgment of court

We have carefully considered the appellant's appea[, the submissions of counsel and the [aw.

s The matter before the court is fairty straightforward in that the appettant executed a plea bargain agreement in which he agreed inter alia to plead guitty and part of the agreement reads as fo[tows:

> I hereby freety and votuntarily ptead guitty to the charges above and agree to be sentenced to l5 years....

- 10 The agreement cannot be read in isolation but together in that the appettant agreed to ptead guilty in exchange for the sentence among other things. Where the sentence is disregarded, then there is no plea bargain. ln other words, the appettant was induced among other things to ptead guilty on condition that he woutd be sentenced to 15 years 1s imprisonment. The definition of a'plea bargain' under the rule 4 of the - Judicature (Ptea Bargain) Rules, 2016 ctearty demonstrates that it is an agreement belween the accused person and the prosecution as it provides that a 'ptea bargain'means:

the process between an accused person and the prosecution, in which the 20 accused person agrees to plead guitty in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offence, or recommend a particutar sentence subject to approval by court; and

"ptea bargain agreement' means an agreement entered into between the prosecution and an accused person regarding a charge or sentence against 25 an accused person.

Clearty, the parties to the agreement agreed on the sentence to be imposed as we have demonstrated above.

Secondly, we have considered the power of the court to reject a plea bargain agreement under rule 13 of the Judicature (Ptea Bargain) Rules, 30 2016 which provides that:

13. Rejection of ptea bargain agreement by court.

(l) The court may reject a plea bargain agreement where it is satisfied that the agreement may occasion a miscarriage of justice.

(2) where the court rejects the ptea bargain agreement -

35 (a) it shatt record the reasons for the rejection and inform the parties;

(b) the agreement shall become void and shatt be inadmissible in subsequent trial proceedings or in any trial relating to the same facts; and

#### 5 (c) the matter shat[ be referred for triat, subject to sub rute 8 (3).

Rute 8 (3) provides that a judiciat officer who has participated in a faited plea bargain negotiation may not preside over a triaI in retation to the same case. Read in context, rute 13 is very clear on the powers of the court to reject a plea bargain agreement where it may occasion a miscarriage of justice. We do not need to define what a miscarriage of justice entails as this is at the discretion of the court to consider. What is materiat is that rute l3 (2) ctearty envisages that where a plea bargain agreement is rejected by the court, the matler shall proceed for triat. ln other words, the ptea of guitty would not be vatid because the entire agreement is revoked. Particularly rute l3 (2) (c) provides in mandatory language that the matter shatt be referred for triaI subject to rute 8 (3) that a judge who presides over a failed plea bargain agreement shall not preside in the triat of the same case.

This sentence of 20 years imprisonment amounted to a rejection of the

- plea bargain agreement executed between the prosecution and the accused person and therefore it rendered the ptea bargain agreement null and void and of no effect. Where a plea bargain is rejected, the judge shatt give reasons for the rejection. The judge cannot use any part of the agreement and reject others. Further, there was no triat before imposing 20 - the sentence of 20 years imprisonment. For the sentence to be vatid, the ptea of the appetlant had to be taken afresh and the usual procedure followed. There cou[d be no ptea of guitty in the circumstances based on a dishonoured agreement. The agreement ought to have been rejected and the matter referred for triaI wherein the appeltant would be asked to ptead afresh as if there was no plea bargain agreement. 25 30

We agree with the decision of this court in Wangwe Robert v Uganda; Court of Appeat Criminat Appeat No. 0572 ol 2014 where this court considered rule 13 of the Ptea Bargain Rutes (supra) and stated that:

We note that the Judge's sentence in this case was imposed on 4rh June, 2014, long before the Plea Bargain Rules became effected. However, even before the rules came into force, the same principtes apptied, to wit, that where a judge rejects the ptea bargain agreement, she/he wi[[ record the reasons and refer back the fite for futt triat. There were guidetines to that effect.

$\mathsf{S}$ With due respect, we find that the learned trial 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 plea bargain agreement where they agreed upon a sentence of 15 years imprisonment but the learned trial judge enhanced sentence to 18 years and 10 months. Having done so, we find the learned trial judge imposed an illegal sentence on the appellant. The sentence is, therefore, hereby set 10 aside.

We agree that the above holding reflects the law perfectly.

The sentence of the appellant was in the circumstances illegal and we allow the appeal and hereby set aside the sentence.

- 15 Because the learned trial judge did not purport to set aside the plea bargain agreement, we do not deem it necessary to set aside the plea bargain agreement. Having set aside the sentence of 20 years imprisonment; we find that the agreed sentence is 15 years imprisonment. This is a definite term of imprisonment to which article 23 (8) of the Constitution of the Republic of Uganda applies. We accordingly - accept the submission of the learned Senior Assistant DPP that the period of 1 year 20 and 10 months the appellant had spent in pre-trial detention should be deducted from the 15 years term of imprisonment.

In the premises, and exercising the powers of this court under section 11 of the Judicature Act, we sentence the appellant to 13 years and two months imprisonment for each of the counts of aggravated robbery and murder, which sentences shall run concurrently and shall commence from the date of his conviction on 24th of June 2015.

Dated at Kampala the $\frac{1}{2}$ day of 2022 Catherine Barhugemereire Justice of Appeal Christopher Madrama **Justice of Appeal** a K. Luswata Justice of Appeal