SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1983 >> [1983] BWCA 15

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

Ramaloko v The State (Criminal Appeal No. 43 of 1983) [1983] BWCA 15; [1983] B.L.R. 24 (CA) (7 December 1983)

PDF of original document.PDF of original document

.RTF of original document


IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 43 of 1983
In the matter of:
PAUL RAMALOKO Appellant
vs.
THE STATE
Mrs. Dambe for the State Appellant in person
Coram: Hon. Mr. Justice Dendy-Young J.A. Hon. Mr. Justice Baron J.A.
Hon. Mr. Justice Kentridge J.A.
JUDGMENT
BARON. J.A.
The appellant was charged before the Senior Magistrate at Gaborone with the illegal possession of a habit forming drug contrary to section 9(1) of the Habit Forming Drugs Act Cap 63:04. He originally pleaded not guilty, saying when asked to plead to the charge that he had been given a suitcase by a man in Bombay to pass on to another man who was to come from Johanneburg, that he did not know that tablets were in it nor that he needed to have a licence.
i.
The appellant's attorney informed the court that what the appellant had said was not in accordance with his instructions and asked for an adjournment. After the adjournment the attorney informed the court that the

2
appellant wished to change his plea; the magistrate read
the charge again to the appellant, who replied "I have
understood. I plead guilty. I knew that the drug mandrax
was in the suitcase."    —        —_
The prosecution then read the summary of facts. I do not propose to set out the facts in detail. It is sufficient to say that the appellant, when he saw customs officials at Gaborone Airport searching passengers* luggage, abondoned the suitcase containing the drugs and made off; he was finally traced, arrested and charged. The magistrate questioned the appellant very comprehensively; the appellant admitted every essential ingredient of the offence, including the fact that he knew the tablets found in his case were mandrax and that he did not have a licence or authorisation to possess them. The court entered a plea of guilty and convicted the appellant in accordance with his plea.
The appellant proved to be a first offender. The magistrate sentenced him to pay a fine of P800 or three months imprisonment in default of payment, and in addition to one year's imprisonment suspended for three years on the usual condition. On review the learned Chief Justice, after due notice to the appellant and hearing argument, confirmed the fine but increased the sentence of imprisonment to eighteen months with twelve suspended. The appellant, with leave, now appeals against both conviction and sentence.

3
As to conviction, it was argued that the tablets were not proved to be mandrax and that the plea was therefore equivocal and should not have been accepted, the admission having been based on hearsay. In essence the submission was that where a fact is based on scientific analysis it cannot be admitted without scientific evidence. Section 239(1) of~the Criminal Procedure and Evidence Act gives the court a discretion to convict and sentence on a plea of guilty without calling evidence, and there is no warrant for the proposition that scientific evidence is in some special category and not envisaged by the section. For instance, an accused charged with a driving offence on the basis of a blood/alcohol level in excess of a prescribed limit might well admit, in answer to questions by the court on his plea of guilty, that he had consumed such a quantity of alcohol that the magistrate can safely accept the accused's admission as to the precise blood/alcohol level, although obviously the accused could not know this as a fact. Unless there is something before the court which should put the magistrate on his guard, there can be no ground to challenge the exercise of his discretion. In the present case, bearing in mind the background and surrounding circumstances, including the fact that the tablets bore the legend MX, the trademark of methaqualone, the possibility that the tablets were not in fact methaqualone is totally unrealistic. I am satisfied that the magistrate was fully entitled to exercise

A
the discretion given him by section 239(1) of the Criminal Procedure and Evidence Act and convict and sentence the appellant without calling scientific evidence as to the nature of the tablets. I would dismiss the appeal agsinst conviction,
I turn then to the sentence imposed by the learned Chief Justice on review. It is trite that sentence is very much a matter for the discretion of the trial court; an appellate court will not interfere to reduce a sentence unless the trial court has erred in principle or the sentence is manifestly excessive. In particular it has been stressed over and over again that an appellate court should not interfere merly because it would, had it been sitting as the trial court, have passed a different or a somewhat lighter sentence. An appellate court should be even slower to increase a sentence, particularly if the effect will be to send to prison a person whom the trial court had not sentenced to imprisonment or to return to prison a person already released; the impact of the sentence in such circumstances is far greater than if the same sentence had been imposed by the trial court. But even if one were to ignore this consideration, at the very least an appellate court should not interfere, in the absence of an error of principle, unless the sentence was manifestly inadequate.
The basis on which the learned Chief Justice proceeded does not emerge clearly from his judgment. He drew attention to certain cases in England in which

5
substantial prison sentences were imposed for this type of offence, and which suggest that neither the fact that an accused is a courier as distinct from a dealer, nor the fact that he is merely in transit through the country in question, should not lead to a substantially lighter sentence than in cases where these factors are absent. I respectfully agree with this approach, and need only add that I can envisage circumstances in which the moral culpability of a courier might be even greater than that of a dealer. To the extent therefore that the magistrate took these factors into account - and he clearly did - he can,be said to have erred in principle. But the learned Chief Justice does not appear to have regarded himself as being at large for that reason; he compared Makhubala's case, Review Case No. 90 of 1983, where the quantity was 6.712 kg, and described the sentence in this case as "far too low" and "not in line with Makhubala's case," where he had himself on review increased the sentence from a simple fine of P600 to a sentence of the same fine plus eighteen months imprisonment with twelve suspended.
I have, with respect, a number of problems with this approach. Firstly, whilst a degree of consistency in sentencing is desirable this must not be taken to the point where the quest for uniformity overshadows the principle that a sentence must be appropriate to the particular offender and the particular offence before the court. Secondly, I have grave doubts whether as a matter

6
of language "far too low" meets the test of "manifestly inadequate." But most importantly, I do not think that a sentence which was in fact more severe than sentences which had been passed in similar cases up to the time of trial can be described as far too low because it was not in line with a subsequent decision. It is relevant to note the sequence of events. Mandrax was declared a habit forming drug by Statutory Instrument No. 36 of 1982, promulgated on the 2nd April 1982; thereafter a number of cases came before the courts, including Makhubelafs case, in which fines were imposed. The present offence was committed in February 1983 and sentence was passed on the 16th March. The decision on review in Makhubela's case was on the 20th April. Thus up to the date of sentence in the present case fines, without more, had been imposed in similar case, but the magistrate, expressing himself to be concerned at the increasing incidence of such offences in such a short time, imposed in addition a wholly /^suspended prison sentence. In these circumstances the sentence cannot be described as manifestly inadequate. I have every sympathy with the view that offence of this kind normally warrant custodial sentences even on first offenders, and the legislature has now given expression to its concern by providing a mandatory minimum sentence of two years imprisonment (See Act No. 8 of 1983); the interests of society have thus been protected. But I do not think a sentence which was perfectly proper at the time it was pronounced should be increased on review on the basis of

a subsequent decision. And I would observe that in Makhubala's case there was more room to regard the sentence at first instance as inadequate. There the sentence had been a fine simpliciter, whereas here a sentence of one year's imprisonment, wholly suspended, had been imposed -a significant additional punishment and deterrent.
In the result I would allow the appeal against sentence, set aside the sentence imposed by the High Court and restore the sentence imposed by the Magistrate's Court.

I agree  L.S. BARON J.A.                   
J.R. DENDY-YOUNG J.A.
I agree

S. W. KENTRIDGE J.A.
Lobatse 07.12.83

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1983/15.html