Mudangule v The State (Court of Appeal No. 30 of 1986 ) [1986] BWCA 13; [1986] B.L.R. 265 (CA) (15 July 1986)

The appellant was convicted on his plea of g on two counts of rape contrary to section 141 and ro contrary to section 297(2) of the Penal Code by the Magistrate's Court in 1982. He was sentenced to 4 y imprisonment on the rape charge and 2 years imprison robbery charge. The sentences were to run consecut In sum, the appellant was to serve six years.

I shall omit a statement of the facts of the they are irrelevant to the appeal before us.

The learned Chief Justice decided to review t under powers conferred upon the High Court by sectio of the Constitution and sections 62 and 63 of the Ma

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Court Act (Cap 04:04). That he had such power to undertake the review, we have no doubt. That upon such a review he has power to increase a sentence or sentences imposed by a Magistrate is equally unchallenged. The question in this case however, is whether the particular review was a necessary measure to ensure the due administration of justice in the lower courts.
In sentencing the appellant, the learned Senior
Magistrate took all the factors before him into account.
This fact is acknowledged by the Chief Justice in his
review judgment. Nevertheless, the learned Chief Justice
"considered that the sentence of 4 years' imprison
ment for rape was far too low in view of the violence used."
That violence, incidentally was a threat with a knife. He
took the view that the sentence which "should be more in
keeping with the usual sentences passed in Botswana for crimes
of that nature when a weapon is used", was 5 years imprison
ment. And he accordingly increased the sentence of the
Appellant for the rape from 4years to 5 years. After the
review, the Appellant had to serve a totality of 7 years
instead of the 6, as the sentence for the robbery remained
undisturbed and was still to run consecutively with that for the rape.
Under section 142 of the Penal Code (Cap 08:01) the
imprisonment maximum sentence for rape is/for life with or without
without corporal punishment. The punishment meted out
in each case_thowever , depends as in all cases where sentences
are left to the discretion of the trial court, on the

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circumstances of the particular case. These circumstances would include the the usual considerations of aggravating and mitigating factors found in the case. The assessment of the sentence, however, is a matter for the Judge or Magistrate seized with the trial of the case, It is common knowledge that this sentence will not be disturbed on appeal unless he has misdirected himself as to the law or the factors he ought to have taken into account or the sentence is so manifestly disproportionate to the offence committed that no reasonable trial court would have imposed it for the offence under consideration. The mere fact that the appellate tribunal would, if in the position of the trial court, have imposed a different sentence is not a sufficient reason for disturbing the sentence. see e.g. Ramaloko v. The State Court of Appeal Criminal Appeal No. 43 of 1983; Visser v. The State (1974) 1 BLR 68.
In this case, had there been an appeal against the sentence of 5 years imprisonment imposed by the Senior Magistrate, it would not have been open to the High Court Judge sitting in his appellate capacity to say that 5 years is inadequate, because he would have imposed 6. No principle would have been involved in the alteration to the exercise of the trial court's undoubted discretion.
In my opinion, the principles which govern the alteration of sentences on appeal ought to govern the alteration of sentences on review. For just as in appeals some principle has to be laid down for the guidance of the court in order to

avoid arbitrary interference with sentences, so too, and
for the same reason, should a similar principle be laid
governing the review of sentences. When we compare the
powers given to the High Court on appeal with those on review
with respect to sentences, we find that they are almost
identical. Section 9 of the High Court Act (Cap. 04:02)
which deals with the appellate powers of the Court, provides
in subsection (l)(d) that the Court shall have power to:-
"(d) impose such punishment, whether more or less severe than, or of a different nature from, the punishment imposed by the court of first instance, as in the opinion of the /ought Court/ LO have been imposed by that court."
But for the use of "High Court" for the word "Court" in the expression "as in the opinion of the Court", the provision governing reviews in rule 2(d) of the Rules of the High Court (Reviews Procedure) Rules, 1982 is exactly the same as in section 9(l)(d) of the High Court Act quoted above. In the cireamstances the directions issued by the Courts as to when an appeal court may interfere with a sentence in exercise of those broad powers on an appeal ought to apply when the High Court is exercising the same powers on a review of a sentence.
In a case where the maximum penalty is life imprisonment, where after taking into consideration all the necessary factors, the trial court imposes a penalty of 4 years imprisonment, one is bound to ask what principle is involved in the alteration of that sentence on a review to 5 years. The fact that the sentence was increased by only one year is in itself an acknowledgment that the sentence of 4 years was not so manifestly inadequate that no reasonable trial court would have

imposed it in the particular case. And if the Senior Magistrate took all relevant factors into consideration before sentence, as the learned Chief Justice conceded, there cannot have been a misdirection by the Senior Magistrate which might have vitiated the exercise of his discretion. Obviously the sentence imposed was within the law. We are left to conclude that the sentence was altered because the Chief Justice would, if he had tried the case, have himself imposed the slightly higher sentence.
His justification for the alteration was that the 5 years term was "more in keeping with the usual sentences passed in Botswana for crimes of that nature when a weapon is used." I do not think that should be the test. There is nothing mechanical about sentencing. Except for mandatory sentences imposed by the legislature, we have not reached the stage where standard sentences fixed in term are imposed by judges on accused persons. Indeed the greatest merit of the non-mandatory sentence put forward is that it gives the trial court the flexibility to impose the punishment he finds as best fitting the crime before him. So long as we have people of different personality, temperament and outlook being given each a full discretion to decide on the sentences for persons of crime, so long have we to accept that sentences will vary with the person who tries the case. And in my view, so long will remain the rule as a salutary precaution that sentences must be interfered with, however much appellate or review judges may disagree with them,only when wrong in principle or manifestly inappropriate.

For that reason, we allowed this appeal to the extent of restoring the sentence imposed by the trial Senior Magistrate on the appellant.
Mr. Skelemani, for the Attorney-General has raised a different issue on which he asks for the guidance of this Court. As noted earlier, this appeal comes from a decision of the Chief Justice given on review. Subsequently Murray J. sitting as an ex-officio single Judge of the Court of Appeal granted leave to the appellant to appeal to this Court. There are aspects of the judgment granting leave which will require the Judge President of this Court giving a direction to all its members on how such applications for leave should be dealt with in future. The matter which was of concern to the Attorney General and which I think we should address at this stage relates to the remarks made by Murray J. about the impropriety of inviting the Attorney-General 's view on a proposed review.
Murray J. was highly critical of the invitation issued by the Chief Justice to the Attorney General to make what representations the latter thought proper on the review. As the learned Judge said:-
"I am not aware of any provision in our Constitution or Statutory Law which makes the question of adequacy or inadequacy of sentences a matter for

Botswana: Court of Appeal

Mudangule v The State (Court of Appeal No. 30 of 1986 ) [1986] BWCA 13; [1986] B.L.R. 265 (CA) (15 July 1986)