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Kamoli v The State (Criminal Appeal No. 26 of 1981) [1982] BWCA 8 (6 December 1982)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 26 of 1981
In the matter between:
PAUL KAMOLI Appellant
and
THE STATE        Respondent
CORAM: MAI3ELS, P
DENDY YOUNG, JA AGUDA, JA
Mrs. M. C. Motsemme for the Appellant Mr. R. J. Chakalisa for tna State
JUDGMENT
MAISELS, P
V.'e have considered your case, and have come to the conclusion that you were correctly found guilty of murder. Although you noted your application for appeal late, the Court has decided to he your appeal, and as I say, there is no doubt, you were correctly convicted of murder.

At the same time the judge found that there were certain extenuating circumstances and he took these into account, but in the opinion of this Court, he did not give sufficient weight to all the circumstances, the fact that this woman was pregnant by you, and that she had commenced living with another man, would naturally make you feel that you had been seriously wronged. In addition, there is the fact which the learned trial judge found, that you had consumed a considerable amount of alcohol. This Court, as a Court of Appeal does not normally interfere with the sentence imposed by the trial judge. If however, in the opinion of this Court, the judge has not given full weight to the extenuating circumstances and there is a substantial disparity between the sentence this Court would have imposed, and the sentence imposed by the trial judge, then this Court is not only entitled, but it is obliged to exercise its discretion as to what is the proper sentence,, The sentence imposed on you by the learned Judge was 15 years' impr i. "' -Mont. You have already been in custody for near!., two years. Taking all these factors into account, the Court has decided to reduce the term of imprisonment to one of 8 years, this sentence to date from today. It is not irrelevant to mention that State Counsel very fairly stated that in his opinion, the sentence imposed by the learned judge was too severe. We
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however would say, even without this concession that we would still have come to the same conclusion.
The appeal succeeds to the extent that the conviction remains but the sentence is reduced to one of 8 years' imprisonment to commence from today.
I. A. MAISELS
PRESIDENT OF THE COURT OF APPEAL
I agree:
DENDY YOUNG JUDGE OF APPEAL
I agree:
T. A. AGUDA JUDGE OF APPEAL
LOBATSE
6th December, 1982
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