Sephiri and Another v The State (Criminal Appeal No. 29 of 1981 ) [1982] BWCA 5 (15 July 1982)

[Home] [Databases] [WorldLII] [Search] [Feedback]
Botswana: Court of Appeal

You are here: SAFLII >> Databases >> Botswana: Court of Appeal >> 1982 >> [1982] BWCA 5

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Sephiri and Another v The State (Criminal Appeal No. 29 of 1981 ) [1982] BWCA 5 (15 July 1982)

.PDF of original document

.RTF of original document

*
IN THE COURT OF APPEAL
OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 29 of 1981 In the matter of:
(1)      KENNEDY SEPHIRI
(2)      KEHUMILE KGOROBA Appellants
vs.
THE STATE
Coram: MAISELS, P.,
AMISSAH, J.M., VAN WISSEN, J.A.
Mr. L. Lawrence S.C. with him
Mr. M. Dibotelo for the Appellants
Mr. R. J. Chakalisa for the Sbito
JUDG M E N T
VAN WISSEN, J.A.
The Appellants in this matter were charged before the Magistrate at Gaborone with contravention of Section 5(1) and (2) of the Arms -ind Ammunition Art Cap. 24:01 by reason of their po^rerraon of two semi-automatic pistols and sixteen rounds of ammunition which fitted the pistols. Both of thtm pleaded puilty to the possession and no evidence was led but in terms of the procedure which is generally adopted in proper circumstances in this country, an agreed set of facts were drawn up and the two appellants assented to these facts.
Briefly >• (-: j-.,_cts/

2
Briefly the facts are, as set out in the judgment by the Court a quo, that the appellants were leaving the Botswana Defence Force camp at Mogoditshane on Saturday 10th October, 1981 at about 1 p.m. and on bein.p; searched two semiautomatic pistols and sixteen rounds of ammunition were found in their possession. They failed to produce Arm certificates in respect of the ammunition and pistols and on being warned and cautioned by the police claimed that they had bought them for P60,00 "ach from a certain soldier and that they were going to resell them for a profit.
The Appellants were represented by an attorney in the Magistrate's Court and he advanced, in mitigation, certain facts such as the youth of the appellants, that they were students of the University of Botswana and as far as the second Appellant is concerned that he had no previous convictions and as far as Appellant No. 1 that he had no previous convictions relevant to the matter then before th^ Court. It was also stressed by the attorney that they wer; in debt and that the object of their purchase of these two pistols was that they could sell them at a profit and thereby liquidate their debts. The Magistrate taking into account
these facts decided that he would postpone the passing of sentence for three years subjc:ct to their good conduct and that they were not during that period involved in an offence involving dishonesty.
The Court a quo viz.,

7
-"
The Court a quo viz., The High Court, reviewed the decision of the Magistrate, set aside his order and substituted in the case of each of the Appellants a sentence of 18 months imprisonment of which 9 months were conditionally suspended for three years. The Learned Chief Justice, who dealt with the matter, in his judgment pointed out that the maximum sentence provided by the Act under which they were charged was a term of imprisonment of two years and a fine of P400,00. He indicated however that it was not compulsory to impose both a prison sentence and a fine but that he had the option in that regard. He regarded the conduct of the appellants as a serious breach of the section under which they were charged.
Appellants now appeal against the sentence imposed by the Hij'h Court and this Court is presently concerned with the a 'propriateness of the decision of the High Court and not that of the Magistrate who tried the matter in the first place. There is precedent in the Courts of Botswana, as was indicated by Mr. Lawrence who appeared for the appellants, for the imposition of a non-custodial sentence in cases of this nature. The fact remains that the deciding factors to be looked to are, in the first instance, the relevant circumstances 6f the case with which the Court happens to be dealing. The Learned Chief Justice in motivating the sentence h imposed relied on the fact that no satisfactory extenuation was afforded by the Appellants for the possession of the firearms and the ammunition and that the circumstances of the case, namely

4
that they proposed to sell the firearms,were such that a very real danger existed that the firearms could fall into undesirable hands. He observed that the Legislature, to judge by the restrictions placed upon the dealing in arms, took a serious view of the breach of the provisions of the Act. He futher stated that regard must be had to the deterrent effect of the sentence imposed in this type of case.
The appeal, as Mr. Lawrence indicated, is directed to the sentence impos*ed by the High Court. It was argued by him on appellants' behalf thrit the High Court had no right to interfere with the Magistrate's ruling postponing the passing of sentence. I am unable to agree with the contention that the High Court had no jurisdiction to interfere with the Magistrate's order. Jt is quite clear that the Hi^h Court is entitled to review the judgment of
the lower court if it is so unreasonable that it would
constitute an irregularity. I have no doubt at all that
it does constitute an irregularity on the part of the
Magistrate, and that it merited interference by
the High Court. The position is thus that this Court is seized with the enquiry as to whether any grounds exisb which would enable it to interfere with the sentence imposed by the High Court. An appellate tribunal will interfere with a sentence imposed by a Court a quo if it has committed an irregularity in arriving at its decision,, if it took into consideration factors which it ought not to have had regard to or failed to take into account

5
also circumstances relevant to its decision. It would/interfere
with the sentence imposed if there was a striking disparity
between the sentence imposed by the High Court and the
sentence this Court considered appropriate. I am unable to
find that either these pre-conditions which would entitle
this Court to interfere exist in the present case. I have
no fault to find with the facts to which theCourt a quo
adverted when imposing the sentence it did. The offence
is clearly a serious one involving the dangerous possibility
that the weapons could be put to an illegal use. The Court
a quo was rightly influenced by the necessity of imposing
a sentence which would constitute a deterrent to others.
Mr. Lawrence argued that the High Court appears to have
over-emphasized the deterrent purpose of the punishment.
I can find no support in the judgment for this contention.
The factors personal to the appellants were also borne in
mind by that Court. The fact that they were University
students does not in my view entitle them to special
treatment.
While I might not hove imposed the same sentence as the High Court I do not consider that any striking disparity exists between it and the one which I would have imposed. Accordingly no good grounds exist for interferring with the sentence. The appeal is accordingly dismissed.
6/

L.'de'vi'vAN'wisSEN
JUDGE OF APPEAL
I agree,         signed
I. A. MAISELS PRESIDENT
I agree,         signed
A. N. E. AMISSAH, JUDGE OF APPEAL.
LOBATSE
15th July, 1982,

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1982/5.html