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Mpotokwane v The State (Criminal Appeal No. 7 of 1987) [1987] BWCA 7; [1987] B.L.R. 364 (CA) (1 July 1987)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 7 of 1987
In the matter between:
DINNO MPOTOKWANE
Appellant
versus
THE STATE
Respondent
Appellant in person
Mr. 0. G. B. Marata for the Respondent
JUDGMENT
CORAM: I. A. MAISELS, JP.
L. D. VAN WINSEN, JA. B. A. DOYLE, JA.
VAN WINSEN, JA.:
Appellant was convicted of the rape of Maranyane Masonyu as well as on a charge that he robbed her of P285,00. The matter was heard by Senior Magistrate F. B. Swaniker at Francistown. Appellant
had pleaded guilty to both charges and no evidence on the charges was adduced before the magistrate. Evidence of appellant's previous
convictions was placed before the magistrate. Crimes of violence committed by appellant included instances of common assault (2) unlawful wounding (1) assault with the intent to do grievous bodily harm (1) and rape (1). He had also been found guilty of House-breaking and Theft (3) escaping from custody (2) and unlawful possession
of dagga(l). The magistrate sentenced appellant for the crimes of which he had found him guilty as follows: for rape, 7 years imprisonment. 2 years of which were conditionally suspended for 3 years; for robbery 4 years imprisonment 1 year of which was conditionally suspended for 3 vears. The sentences on the two counts in question
2
were ordered to run concurrently. On review the sentences were altered as follows: on the rape charge, to 7 years imprisonment, on
the robbery charge, to 5 years imprisonment. The sentences on both counts were ordered to run concurrently. Leave was sought by appellant
to appeal against the sentences and this was duly grant ;d by Murray J. In his judgment the learned judge raised a number o : questions concerning the policy of sentencing. He drew attention to the case of Regina v. Bellam and Others (1986) 1 W.L.R. 349. !n that case Lord Lane after referring to the increase over the years of the crime of rape or attempted rape,
dealt at length with the deleterious effect of rape on the victim and the considerable disparity between the sentences imposed by
the courts for this offence. While he recognised that the variable factors in cases cf rape are numerous and that to lay down guidelines
as to the proper length of the sentence in terms of years was difficult, nevertheless concluded that for rape committed by an adult
without any aggravating or mitigating circumstances a figure of 5 years should be taken as a starting point. Murray J. compared this
case with the judgment in the Review case of The State vs. Oduetse Batsimako (No. 647 of 198)) where O'Brien Quinn C.J. referred to the judgment in the case of R. v. Bellam (supra) and drew a distinction between the position in England, where sentences for rape are not accompanied by corporal punishment,
and Botswana where corporal punishment is mandatory foi offenders not over 40 years of age. Because of this difference the Chief
Justice defined that the norm in Botswana - applicable to cases where neither mitigating nor aggravating circumstances are present
-should be somewhat less than it was in England and he expressed the view that in Botswana 4 years imprisonment and 4 to 6 strokes
ought
3
to be considered as a starting point for a contested case.
Interesting as the reports of these varying approaches to punishment in rape cases may be, it is well to recognize that the primary task of this Court on appeal in the present case is to decide whether any ground exists for intefering with the sentences imposed on appellant by Barrington-Jones J. I entertain no doubt that
no ground whatsoever exists for interfering with such sentences. This is a shocking case of savagery on the part of the appellant who raped the complainant on several occasions over an extended period.
Not content with that he robbed her of a considerable sum of money. His conduct towards complainant and his record of previous offences more than justifies the punishment imposed upon him. The appeal accordingly cannot succeed.
Referring to the differences of approach between the English Courts and those in Botswana as exemplified by the judgment referred
to in the Batsimako case as to the "starting point" in the determination of an approapriate punishment for the crime of
rape, it is to be observed that the difference is not considerable. In BeJlam's case the starting point was 5 years imprisonment
in the Batsimako case it was U years and 4 to 6 strokes. Since in the assessment of the appropriate punishment for the offence of rape regard should be had to the
cumulative effect of imprisonment and strokes, it appears to have been a correct approach on the part of the Chief Justice to adopt
a lower starting figure for the term of imprisonment where the imposition of strokes in addition to imprisonment is mandatory. In cases where strokes cannot validly be imposed on the accused this must necessarily have an influence in the length of the term of imprisonment imposed. While the practice
of
4
relating the punishment to be imposed to a particular base line might have its value as a preliminary guide to judicial officers
who throughout the country are required to deal with the problem of determining what an appropriate punishment for rape should be,
it should not be allowed because a straight-jacket having an inhibiting effect on the determination of an appropriate sentence in
any particular case. In the final resort each case is factually unique and it is with reference to the aggregate of all factors -
both mitigating and aggravating - that an appropriate sentence must be determined.
In the present case, for the reasons indicated above, the punishment imposed on appellant is entirely appropriate and the appeal
is accordingly dismissed.
GIVEN AT THE COURT OF ^PPEAL, LOBATSE, this 1st day of July, 1987.
L. D. VAN WINSEN JUDGE OF APPEAL.
I agree,
I agree.
I.A. MAISELS JUDGE PRESIDENT.
B.A. DOYLE JUDGE OF APPEAL.
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