Tumusiime v Uganda (Criminal Appeal No. 446 of 2017) [2023] UGCA 50 (15 February 2023)

#### THE REPUIBLIC OF UGANDA

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

(Coram: Elizabeth Musoke, JA, Christopher Gashirabake, JA, Eva K. Luswata, JA)

# CRIMINAL APPEAL NO. 0446 OF 2OL7

TUMUSIIME JOHN :::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

UGANDA :::::!:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Judgement of the High Court sitting at Mubende in Criminal Session Case No. OOO4 of 2015 by Hon. Justice Wilson Masalu Musene delivered on Sth June, 20151

#### JUDGMENT OF THE COURT

# Introduction

1] The facts of the case are that the Appellant was charged with the offence of murder contrarSr to Sections 188 ald 189 of the Penal Code Act. It was stated in the indictment that on the 11th day of April 2013 in Bulagano Village, Kalwano Sub County in the Mubende District, the appellant murdered his wife Kayesu Scovia. The Appellant pleaded guilty pursuant to a plea bargaining agreement that he signed on Sth June, 2015 and agreed to a sentence of ten years' imprisonment.

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2] After pleading guilty to the charge, the prosecuting counsel read out, and the appellant admitted the following facts, which we shall repeat *verbatim:*

"The deceased, Scovia AKayezu aged 18 years had recently married" to accused. The couple had lived for 3 months and $2/4/2013$ , at about 7.00 a.m, Bakaira Medius, mother to accused went to check on the couple. She found the door locked. She called a neighbour Kabina. When they broke the house, they found the deceased lying dead. Matters were reported to the authorities. The deceased was lying in a blood pool. A blood stained knife was recovered. In the meantime, efforts were made to trace accused. The accused was found in the bush and arrested. He was about to be killed when police intervened. The deceased was examined. She was found with cuts on the neck and stomach. The cause of death was excessive bleeding. Accused *admitted in a charge and caution" (sic).*

The Judge then proceeded to convict the appellant and sentenced him to 25 years' imprisonment, from which he deducted the period spent on remand.

3] The appellant being aggrieved with the decision of the High Court lodged an appeal to this court on one ground that:

> The Learned Trial Judge erred in law and fact when he sentenced the Appellant to 23 years' imprisonment contrary to the 10 years agreed upon in the plea bargain agreement thereby occasioning a miscarriage of justice.

#### **Representation**

4) At the hearing of the appeal, the Appellant was represented by learned counsel Kenneth Ssebabi while the respondent was




represented by learned counsel Nabaasa Carolyn Hope a Principal Assistant Director of Public Prosecutions (DPP), who was assisted by learned counsel Aleto Innocent, also attached to the DPP. Counsel for the parties applied and were a-llowed to adopt their written submissions which this court will consider in deciding the appeal.

#### Ground one

# Submissions for the Appellant

- 5l Appellant's counsel submitted that it is a well settled principle that on a first appeal, the parties are entitled to obtain from the appellate court its own decision on issues of facts as well as law. He referred to the case of Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O of L997, and Bogere Moses & Another vs Uganda, SC Criminal Appeal No. 1 of 1997. - 6l With respect to the sentence, counsel then cited the Supreme Court decision of Kyallmpa Edward versus Uganda, Appeal No. 10 of 1995 which laid down principles to follow before the appellate court can interfere with a sentence. He then submitted that the sentence of 23 years' imprisonment imposed by the learned trial Judge was illegal because it was outside the plea bargain agreement entered between the appellant and the prosecution. Counsel referred us to Rule 4 of the Judicature (Plea Bargainf Rules, 2O16 (hereinafter Plea Bargaining Rules) in which a "plea bargain", and a "plea bargaining agreement", are defined. - 7l Counsel went on to submit that the appellant executed a plea bargain agreement in which he agreed to plead guilty and also agreed

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to be sentenced to ten years. That the inference would be that the appellant agreed to plead guilty in exchange for a sentence of ten years. However, the trial Judge disregarded the plea bargain agreement and instead sentenced the appellant to 23 years' imprisonment. In counsel's view, although court has power to reject a plea bargain agreement, the learned trial Judge did not follow the law governing rejection of such agreements as provided for in Rule 13 of the Plea- Bargain Rules.

- 8] Counsel went on to submit that Rule 13(2) of the Plea- Bargain Rules clearly state that where a plea bargain agreement is rejected by the court, the matter shall be referred for trial and therefore, the plea of guilty would not be valid because the entire agreement is revoked. - 9l Counsel added that if a plea bargain is rejected, the Judge ought to record the reasons for rejection and then refer the matter for re-trial. In essence that, the sentence of 23 years' imprisonment amounted to a rejection of the plea bargain agreement executed between the prosecution and the appellant, which therefore rendered the plea bargain agreement null and void and of no effect. Counsel based his arguments on the decision of Pande Fred aka Kato Isa versus Uganda, Criminal Appeal No. O233 of 2O15. Counsel submitted strongly that although the sentence in this case was imposed on Stn June 2015, before the Plea Bargain Rules came into force, the same principles applied. - 1Ol In conclusion, counsel submitted that the sentence of 23 years' imprisonment imposed on the appellant in the instant case was in

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the circumstances, illega-l and ought to be set aside and replaced with the agreed sentence of 1O years' imprisonment.

### Respondents submission

- 11] In response, counsel for the respondent conceded to the fact that there was a departure by the trial Judge from the terms of the plea bargain agreement. Counsel also agreed that such departure renders the sentence passed by the trial Judge illegal because a Judge has no mandate to impose his or her own sentence outside the term agreed between the accused and the prosecution. Counsel then referred us to Rule 13 of the Plea Bargain Rules, ald the cases of Aria Angelo verses Uganda, Criminal Appeal No. 439 of 2015, Agaba Emmanuel & 2 others versus Uganda, Criminal Appeal No. 139 of 2OL7, Wange Robert versus Uganda Criminal Appeal No. o572 of 2014, Sempijja Brian versus Uganda, Criminal Appeal N. 566 of 2Ol4 and. Agaba Emmanuel & 2 others versus Uganda, Criminal Appeal No. 139 of 2017, that are instructive on the matter. - 121 Counsel further submitted that a trial Judge does not have power to alter or amend the terms of the plea bargain agreement signed between the parties. The only remedy available to the tria-l Judge who is in disagreement with the terms of the Plea Bargain Agreement is to reject it and refer the case for trial. She also referred us to the case of Aria Angelo versus Uganda (Supra) where it was held that under the Plea Bargaining Rules, an accused person is at liberty to reject the proposal by the trial Judge if it is not in his favour

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and opt out of plea bargain. In other words, the plea bargain limits the discretionar5r sentencing powers of the judicial officer.

131 Counsel then submitted that the departure from the terms of the plea bargain agreement occasioned an illegality, which can be cured by this Court under Section 1 1 of the Judicature Act. In conclusion, she prayed that this honorable court be pleased to invoke its powers under that section, as it did in the earlier cited cases, to set aside the illegal sentence and reinstate the plea bargain agreement and sentence of 1O years.

# Decision of Court

l4l We have carefully studied the court record, considered the submissions for either side, and the law and authorities cited therein. A first appeal from a decision of the High Court requires this Court to review the evidence and make its own inferences of law and fact. See: Rule 30 (1) (af of the Judicature (Court of Appeal Rulesl Directions S.113- 1O. We do agree with and follow the decision of the Supreme Court in Kifamunte Henry vs. Uganda, (supra), where it was held that on a first appeal, this court has a duty to:

". . . reuietu the euidence of the case and to reconsider the materials before the tial Judge. The appellate court must then make up its own mind not disregarding the judgement appealed from, but carefully uteighing and consideing it."

isl We agree with counsel for the appellant that an appropriate sentence is a matter for the discretion of the trial Court. Thus, an appellate Court can only interfere with the exercise of discretion if

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6 LLIL the sentence imposed is manifestly excessive, or is so low as to occasion a miscarriage of Justice. Court may also interfere where the trial court ignores to consider an important matter or circumstance it ought to have considered before imposing the sentence or where the sentence imposed is wrong in principle. See: **Kiwalabye Bernard** versus Uganda, Criminal Appeal No. 143 of 2001.

- $16$ The appellant faults the trial Judge for sentencing the appellant to 23 years' imprisonment contrary to the 10 years that were agreed upon in the plea bargain agreement. It is clear that the respondent offered no contest to that submission. Respondent's counsel submitted that indeed a departure by the trial Judge from what was agreed in the plea bargain agreement, was an illegality and prayed for this Court's intervention by invoking Section 11 of the Judicature Act. - Both counsel's submissions have made our intervention $17$ simple. By definition, the plea bargain procedure is defined under Rule 4 of the Plea Bargain Rules to be:

"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 one or more charges, reduce a charge to a less serious offense, or recommend a *particular sentence subject to approval by court".*

$18]$ Once the parties conclude the plea bargaining process, the gist of their agreement is reduced into a plea bargain agreement which is binding upon both the accused and prosecution.

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$19$ Pleas that are procured as a result of such agreements are given exceptional regard in the criminal justice system. It was for example held in the US Supreme Court case of **Santabello versus** New York 404 U. S. 257 quoted in Agaba Emmanuel & 2 others versus Uganda, CA Criminal Appeal No. 139 of 2017 that:

> "The phase (plea bargain) of the process of the criminal justice, and the adjudicative element inherent in accepting a plea of *guilty must be attended by safeguards to ensure the defendant* what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled".

This Court in her decision of **Agaba Emmanuel & 2 others versus Uganda, (supra)**thus went on to explain that:

"....in our view, plea bargaining creates an agreement between the prosecutor and the accused, with all the features of an agreement in the law of contract. The court plays the role of a regulator of the agreement to ensure that the agreement *conforms to the needs of justice of the case but court is not privy* to the agreement and cannot redefine it. What the court may do is to reject a plea bargain agreement where it is satisfied that *the agreement may occasion a miscarriage of justice.* "................................... is because of the seriousness accorded to a plea bargain, that the rules prohibit the substitution of a Judge –imposed sentence *in the context of the plea bargain context."*

$20$ In the instant case, the record indicates at pages 11-20 that the appellant who was charged with the offence of murder negotiated a term of 10 years' imprisonment, which was entered into the agreement. It is also clear that after presenting the facts upon which the indictment was based, the prosecutor indicated that although



the appellant had offered to serve a term of 10 years, he felt that 15 years' imprisonment, was more appropriate. In his detailed sentencing ruling, the Judge instead issued a sentence of 25 years from which he deducted the period of remand. That decision was in principle made without due regard of the agreement and in contravention of the Plea bargaining Rules.

2Ll Under Rule 8, the Judicial Oflicer who must always have control over the proceedings can only have limited participation in the bargaining process Under Rule 13, he/she has powers (upon giving reasons) to reject a proposed sentence, but once an agreement is signed with no demure from the Court, then under Rule 12(5) they can only endorse it and pronounce a legal sentence. Under no circumstances should a judicial officer impose a sentence. The appellant's counsel pointed out to us several authorities on this cemented principle, but one decision stands out. It was held in Aria

## Angelo versus Uganda Criminal Appeal No.439 of 2O15, that:

"..the plea bargaining process is intended to benefit the accused, the uictim and the state....... the Rules giue the judicial officer an opportunitg to superintend ouer the proceedings to ensure that there is no miscarriage of justice or abuse of tle process making it a mockery of justice. The Judge or judicial offi.cer maA recommend a particular sentence u.thich in his or her opinion serues tLe justice of th.e case. The aboue notutithstanding, the judicial offi.cer does not haue the discretion to impose his or her ou.tn sentence".

221 With respect, the prosecutor's final submission at the trial that he considered a term of 15 years more appropriate was misplaced because the aggravating and mitigating factors recorded in the agreement must have formed the basis on which the two parties

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agreed to lO years. In the same vein, the protracted sentencing ruling adopted by the Judge was clearly contrary to the legal restrictions we have mentioned above. Since he had not conducted a trial, his duty was to reject or allow the agreed sentence of ten years. We note that the Judge did not sign the agreement. It may perhaps be because he did not agree with the sentence therein. However, by allowing the appellant to take plea, and by not unequivocally rejecting the agreement and ordering a trial, it is taken that he agreed to the agreement and all its terms. That being so, his decision to deviate from the terms of thrplea bargain agreement resulted into his pronouncement of " ""p-g.il"'" that we regard to be illegal and <sup>a</sup> nullity. Both parties to this appeal have come to the same conclusion and we shall thus not labour the point, and only proceed to set aside the sentence of 23 years' imprisonment.

- 231 Th..e -ls no indication that the plea bargain agreement was invalid. We would thus invoke our powers under the Section 11 of the Judicature Act to impose a sentence of 1O years which is the sentence the appellant proposed and the prosecutor agreed to when they signed the plea bargaining agreement. As stated before, since the Judge did not consider the plea bargain a failed process, he was mandated to endorse that sentence, but not to impose another. We therefore maintain the sentence of 1O years' imprisonment as the legal sentence. - 241 However, we are enjoined under Article 23 (8) of the Constitution to take into account the period of two years the appellant had spent on remand, which we therefore deduct from 1O


years. As a result, we sentence the appellant to eight years imprisonment to be served with effect from the date of his conviction on Sth June, 2015.

251 Consequently, this appeal is allowed.

Dated at Kampala this r9 da of ....2023 HON. ELIZABETH MUSOKE JUSTICE OF APPEAL I JUSTI HON. LUSWATA JU E OF APPEAL HON. CHRISTOPHER GASHIRABAKE OF'APPEAL