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Mothelesi v The State (Criminal Appeal No. 18 of 1989 ) [1989] BWCA 10; [1989] B.L.R. 237 (CA) (4 July 1989)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF THE
REPUBLIC OF BOTSWANA
Criminal Appeal No. 18 of 1989
High Court Crim. Trial No. 44 of 19SS
In the natter of:
CLEMENT MOTHELESI
Appellant
vs
THE STATE
Respondent
Advocate Bregman (instructed by Michin & Kelly)
for the Appellant Advocate S. A. ACful for the Respondent
J U D G M E N T
Coram: c A. AGUDA, JA. B. A. DOYLE, JA. G. BIZOS, JA.
DOYLE. JA.:
The Appellant was charged with the murder of h.i.s wife. He pleaded g'.uir.v to this charge in ur.equ i vocal terms and added that he wished to adduce evidence of: extenuating circumstances. The learne-: trial judge, before accepting t.h:..-r plea, sought cunt ir-st i on from Appellant's Counsel that this plea reflected Appellant's true intention and was in line with his attorney's instructions. Assured that this was so, he accepted the plea
of: guilty and convicted the Appellant of murder as charged.
The learned judge then heard the various extentuating circumstances put forward by defence counsel and agreed by the State. He found that there were extenuating circumstances and that t. hf=y were sufficient to enable liini not to impose the deat n sentence. He sentenced Appellant to eight years' imprisonment.
2
In the course of pronouncing sentence in which he had turned
down a plea from Counsel for a suspended sentence, the learned
judge said
"In fact, had these provisions (here referring to Section 304(1) of the Criminal Procedure & Evidence Act) even not existed,
I would have passed custodial, sentence. That sentence would have been a long term of imprisonment. This is because murder is one
of the heinous crimes. No one has a right to take another person's life except where he does so under the Constitution and laws of
this land."
The relevant facts of the case accepted by the judge were that Appellant had been under great stress and strain caused by numerous
incidents of marital disharmony. Divorce proceedings by the deceased. Appellant's wife, were pending. This had led to Appellant's excessive drinking. On the day of the killing Appellant had received a letter from his wife's Attorney intimating that 50% of the proceeds of the sale of the matrimonial home had been paid to his wife. This had occurred without AppeLlant's knowledge and to his mine was contrary to anything that had been agreed.
This greatly upset Appellant's already disturbed state and he determined to see his wife and discuss matters. He went to her office where he found her reluctant to discuss anything. He remembered that he had a gun in a truck which he had used the previous day.
He decided that this would be a useful instrument to pursuade his his wife to talk to him. He went for the gun and with it went back
to his wife's office. He found her seated in a chair and told her he wanted to discuss why she had left, their home. He demanded that she tell the truth arid gave some reasons why he previously disbelieved her, including that, she had bought
3
a new van from money she had been smuggling to her father. She denied this. He then loaded the gun and pointed it at her. He said
"OK until death do us part if you don't want to tell the truth." She jumped up and grasped the gun barrel. On a sudden
impulse Appellant fired a shot that killed her.
In view of the plea of guilty to murder there could be no question of this shot having gone off accidentally by reason ot an outside
agency such as his wife jerking the gun.
Counsel for Appellant, submitted that the case was only barely murder and was akin to manslaughter. He submitted that the .judge
had misdirected himself -
(a)
in that he had not given due consideration to all. the factors of the extenuating circumstances and the circumstances of the offence itself.
(b)
in relation to the reference to a heinous crime.
(c)
in imposing a sentence which was grossly excessive.
As to the first of these I have no doubt at all that, the
learned judge did not err. His long and careful consideration of
the factors which amounted to extenuating c irc-umstances must have
been in his mind. He clearly also had in his mind the
circumstances of the killing.
*
If the reference to a heinous crime means that the learned judge considered that there was no case of murder which did not merit
a long custodial sentence, this would amount to a misdirection. However this may be, it is plain enough that the learned trial, judge thought that this was itself a case which merited a long custodial sentence.
4
N'o suspended sentence could be imposed on a conviction for murder. If this case can be akin to manslaughter. It would be a very
bad case of manslaughter. It was a grave case of murder though there were circumstances which elicit feelings of pity for the offender. Had I been the trial judge I do not think I would have imposed a sentence of eight years' imprisonment.
I am, however, unable to say, particularly bearing in mind the level of sentences generally in Botswana, that eight years' imprisonment
in r.his case is a sentence which could not reasonably be imposed by '_he judge.
T would, therefore, dismiss this appeal.
B. A. DOYLE Judge of Appeal
a<yfee
T. A. AGUDA Judge of Appeal
I agree
G. BIZPS
•) Judge of Appeal
GIVEN AT LOBATSE THIS 4TH DAY OF JULY, 1989.
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