Tagwika v Uganda (Criminal Appeal 352 of 2019) [2023] UGCA 207 (20 July 2023)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT JINJA

[Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi, Monica Mugenyi, JJA]

## CRIMINAL APPEAL No. 352 OF 2019

(Arising from High Court Criminal Session Case No 321 ol 2Ola at Mukono)

### BETWEEN

TAGWIKA STEPHEN APPELLANT

#### AND

UGANDA RESPONDENT

(An Appeal from the Judgment of the High Court of Uganda Margret Mutonyi J delivered on 17th January, 2019)

### JUDGMENT OF THE COURT

## Introduction

The Appellant was indicted and convicted of the offence aggravated defilement of a 4-year-o1d girl Contrary to Sections 129 (31 (41 (a) of the Penal Code Act.

## The Brief Facts

The facts of this Appeal as can be discerned from the Record as follows. In May 2Ol7 the mother of the victim went to farm in a garden about one kilometer away from her home where she left the victim alone because she was not feeling well. The Appellant a neighbour to the victim's home took advantage of the absence of the mother to lure the victim to his house and performed a sexual act on her. The next day while the victim was being bathed by her mother, she told her that she had pain around her private parts. This promoted the mother to examine the victim's private parts and found that they were

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bruised. On further inquiry, the victim told her mother that the Appellate had performed a sexual act her. The incident was reported to the police and Local Council 1 where after the Appellant was arrested. The Victim was examined at a health centre and found to be bruised around her private parts and with some discharge from her private parts.

The Appellate denied any involvement with the victim and was charged in Court with aggravated defilement.

# Decision of the Trial Court

At the trial, the Appellant entered into a plea agreement with the State whereby he admitted all the facts and pleaded guilty, for which he was convicted on his own plea and was sentenced to 18 years' imprisonment.

The Appellant dissatished with the sentence of the trial Court appealed to this Court on the ground that: -

'The Learned Judge erred in law and fact in sentencing the Appellant to <sup>18</sup> years' imprisonment contrary to what he had assented to in the Plea Bargain agreement struck between him and the prosecution..."

According to the plea bargain agreement the term of imprisonment indicated therein was 14 years.

## Leave to Appeal on Sentence only

At the hearing the Appellant sought leave under Section 132 (l) (b) of the Trial on Indictment Act

The parties sought the leave of Court to adopt their written submissions as their legal arguments in this Appeal which leave was granted.

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### **Representations**

At the hearing, the Appellant was represented by Mr. Robert Esarit and the Respondent by Ms. Gladys Nyanzi.

### Powers of an Appellate Court

We are alive to the duty of this court as a first appellate court as decided in the case of **Kifamunte Henry V Uganda** SCCA No 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact.

In James S/o Yoram versus Rex 1950 [EACA] 18 P.147. it was also held that: -

"It may be that had this Court been trying the appellant it might have imposed a less severe sentence but that by itself is not a ground for interference and this *Court will not ordinarily interfere with the discretion exercised by a trial judge in* the matter of sentence. Unless it is evidence that the judge had acted on some *wrong principle or over looked some material factor*"

In the matter of Kiwalabye versus Uganda Criminal Appeal No. 143 of 2001 (SC) it was held: -

"The appellant court is not to interfere with 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*"

### **Arguments of the Appellant**

Counsel strongly faulted the procedure adopted by the trial Judge in convicting 922<br>922 the Appellant and sentencing him to 18 years' imprisonment.

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He argued that the Record of the proceedings shows no formal plea taking, conviction and sentence of the Appellant; though there is a plea agreement at page 20 thereof.

Counsel further argued that the trial Judge sentenced the Appellant to <sup>18</sup> years' imprisonment yet the plea agreement signed by the Appellant and the prosecution had 14 years' imprisonment. He argued that the plea agreement had been altered in pen to reflect 18 years" without countersignature by the Appellant.

Counsel for the Respondent in the circumstances prayed that this Appeal be allowed and the sentence of 18 years'quashed and substituted with that of 14 years'.

## Arguments of the Respondent

Counsel for the Respondent submitted that the proceedings for plea Bargaining are governed by the Judicature (Plea Bargainl Rules 2O16.

Counsel conceded that notwithstanding the trial court proceeding using plea bargaining, the trial Judge on record still did not take plea nor did she convict or sentence the Appellant which was an error of law.

She prayed that this Court be pleased to set aside the illegal conviction and sentence and order a re-trial of the case.

## Declsion of the Court

This appeal is against sentence only. We have carefully considered the submissions of both Counsel, the record and authorities availed to us; for which we are grateful.

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The Record of the Court is very brief and reads as follows: -

17.1.2019. Tagwaika Steuen. Arraigned before Court Namutebi Racheal for the State and Nazami Robert under plea bargain. He pleaded guiltg to the charge and admitted the facts. He was convicted on her own plea of guiltg of Aggrauated Defilement and understood the plea bargain agreement and signed for 18 gears.

Judge 17/ 1/2O19..."

llr, tli;rl ,lttrlgt' t:lr';nir rliri rtrrr lollrru llrr ltirrr, rllttt' :rs l:ritl rrLLi ilt lltc Judicature (Plea Bargainf Rules 2O16 and the elaborate guidelines given by this Court in support of the Rules in the matter of Musinguzi Apollo V Uganda, CACA No 24O of 2077. In that Appeal this Court made it clear that even under a plea bargain procedure, the accused is required to take plea and the plea of guilty placed on record, which did not take place at the trial Court in this matter. This Court further held that where no plea is taken and there is no conviction or sentence on record then this was an irregularity that vitiated the commitment warrant. Clearly the sentence in this matter was not based on the correct principle or applicable iaws.

Con st'c1uen tl-v-, using powers given to this court b1" Section 11 of the Juclicature Act, wc quash not.iust the sentcnce bul zrlso the cntire proceedings at thc tri.il Court as a nu llitv.

## Final Decision

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We so Order.

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| Day of<br>Dated at Jinja this | 2023 | |------------------------------------------|------| | | | | Hon. Mr. Justice Geoffrey Kiryabwire, JA | | | 7 au inverbe | |

Hon. Mr. Justice Muzamiru M. Kibeedi, JA

munngenyi.

Hon. Lady. Justice Monica Mugenyi, JA