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Nosarwa v The State (Criminal Appeal No. 39/93 ) [1994] BWCA 7 (31 January 1994)
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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 39/93 (High Court Criminal Appeal No. 7/91)
Criminal Appeal No. 40/93 (High Court Criminal Appeal No. 198/92)
Criminal Appeal No. 41/93 (High Court Criminal Appeal No. 123/90)
Criminal Appeal No. 42/93 (High Court Criminal Appeal No. 13/93)
In the matter between:-
GILLET GAESI NOSARWA
Appellant
and
THE STATE
Respondent
The Appellant in Person
Mr. Tiroyakgosi for the Respondent
JUDGMENT (Delivered on the 1\ff January, 1994)
Coram:- T.A. AGUDA, JA.
W.H.R. SCHREINER, JA. J.J. TRENGOVE, JA.
AGUDA JA;-
These four appeals were lodged by the appellant against his
convictions for various offences of stock theft and related offences.
When they were mentioned before us on Tuesday January 18, 1994, the
appellant requested that we hear them together which request we granted
for reasons which will become clear later. However, for ease of
understanding and decision I have deemed it necessary to state the
2 history of each one of the four appeals very briefly. For reasons which will also become clear in due course I propose to do so in the order of the dates when the convictions were recorded against the appellant
and not in the order in which the appeals were filed either at the High Court or in this court. I. Criminal Appeal No. 41/93
The first case in which conviction was recorded against the appellant was the one which finally finds its way to this court as Criminal Appeal No. 41/93.
On September 3, 1989, the appellant with two others were arraigned before a magistrate on six counts of (1) unlawful possession on August 28, 1989, of local police date stamp; (2) the theft of stock between August 1 and 23, 1989; (3) theft of stock between August 1 and 23, 1989; (4) possession on or about August 23, 1989, of stock suspected to have been stolen; (5) making on or about August 17, 1989, a false document, namely a chief's livestock acquisition permit; and (6) giving false information to the police on August 21, 1989. The appellant was found guilty of all the offences and sentenced to various terms
of imprisonment made to run concurrently. He was to be in prison for four years with effect from the date of the conviction, namely June 19, 1990. II Criminal Appeal No. 39/93
Another case which terminated in the conviction of the appellant is the one which has also found its way to this court as Criminal Appeal No. 39/93.
On February 5, 1990 the appellant appeared before the Acting Senior
3 Magistrate in Kweneng District charged with: (1) stealing of three
cattle between July 1 and 30, 1989; (2) possession on April 25, 1989 of
stock suspected to have been stolen; (3) forgery between March 30 and
April 25, 1989 of 4 livestock sales permit; (4) possession on January
10, 1990 of stock suspected to have been stolen; and (5) defacing brand
mark on stock between January 1 and 10, 1990. His trial terminated in
his conviction on Count 1 only on October 15, 1990 and he was sentenced
to four years imprisonment. The sentence was made to run consecutively
to any prison term that he might have been serving.
III
Criminal Appeal No. 40/93
The next case against the appellant which was charged to Court came before the same magistrate as in the last mentioned case on February 2, 1990. It came before this court as Criminal Appeal No. 40/93.
The charge, which was preferred against the appellant and another contained only a single count of the theft of 9 herd of cattle between August 1 and 31, 1989. The appellant and the other person were convicted of the offence and the appellant was sentenced to a term of imprisonment for ten years such term being made to run consecutive with any sentence that he might be serving. That was on September 29, 1992.
IV
Criminal Appeal No. 42/93
The fourth case in which conviction was recorded against the appellant finally got to this court as Criminal Appeal No. 42/93.
On October 15, 1990, the appellant alone was charged before the same magistrate that took the last two cases on nine counts: (1) stealing three herd of cattle between June 1 and 30, 1989; (2) stealing
4 another head of cattle between the same dates; (3) possession on July
11, 1989, 6 herd of cattle suspected to have been stolen; (4) making a
false document purported to be a chief's acquisition (of cattle) permit;
(5) giving false information on June 28, 1989, to a person in the public
service; (6) stealing a single head of cattle between May 1 and 30 1990;
(7) stealing another two head of different head of cattle between the
same dates; (8) stealing another different cattle between the same
dates; and (9) being in possession on July 14, 1990, six herd of cattle
suspected to have been stolen.
He was convicted on all the counts and sentenced to different terms of imprisonment six of which were for ten years each. The sentences were to run concurrently but consecutive to all the other sentences. That was also on September 29, 1992. The sentences imposed by the magistrates
The learned trial magistrate made it quite clear that all the terms of imprisonment were to run consecutively. In effect the appellant was to spend 28 years in prison.
At this juncture it is important to note that previous to all these cases the appellant had been convicted on a charge of two counts of stock theft and sentenced to prison on May 30, 1988 as follows:-
(1)
stealing 40 herd of cattle - 2 years imprisonment.
(2)
stealing 2 beasts - 12 months imprisonment.
The sentences were made to run concurrently. Obviously all the acts of the appellant which led to his convictions in all the present four appeals were committed just after completing his term of imprisonment in
5 that case. The first offence was alleged to have been committed between August 1 and 23, 1989. Appeals to the High Court
I.
In Criminal Appeal No. 41/93 (which was Appeal No. 123 of 1990
at the High Court), the appellant had through Attorneys L.A. Maine
lodged an appeal to the High Court on July 11, 1990. Supplementary
Grounds of Appeal were filed on his behalf by Attorneys Segopolo,
Komboni and partners on January 9, 1991. That appeal came before
Barrington-Jones J, on March 31, 1993 when the learned Judge dismissed
it summarily and confirmed the sentence imposed by the magistrate's
court.
II.
In Criminal Appeal No. 39/93, (which was Criminal Appeal No.
7 of 1991 in the High Court), the appellant lodged the appeal himself,
but later got Attorneys Makgabenyana Bayford & Associate to lodge
Grounds of Appeal on October 5, 1992. Supplementary Grounds of Appeal
were filed by yet another firm of Attorneys, Dikgokgwane & Moeletsi, on
August 4, 1993. The appeal came before the Chief Justice who in a
written judgment dismissed it on September 10, 1993. However on
December 24, 1993 the learned Chief Justice granted the appellant leave
to appeal to this court.
III. Criminal Appeal No. 40/93 was Criminal Appeal No. 198 of 1992. In that case the appellant lodged his own appeal himself and filed Grounds of Appeal on April 1, 1993. That appeal came before Gyeke-Dako J, who delivered judgment in it on December 21 1993. More will be said of that judgment presently.
6
IV. Criminal Appeal No. 42/93 was at the High Court Criminal Appeal No. 13 of 1993 (wrongly headed No. 13/90 in the Records). In that case the appellant lodged an appeal himself but I have found nothing
on the files to show that he ever filed any Grounds of Appeal or Heads of Argument. However, the appeal came before Gyeke-Dako J, who delivered judgment in it also on December 21, 1993. Judgment of the High Cout dated December 21, 1993
In his judgment dated December 21, 1993, Gyeke-Dako, J., carried out a general view of all the four appeals. How the appeals in I and II above came before him is not clear. He however decided to deal with the charges and the trials in all the four cases. It seems curious that the learned judge did not advert his mind to the fact that Barrington-Jones, J, had dismissed the appellant's appeal in Appeal No. 123 of 1990 (now Criminal Appeal No. 41/93). Similarly the learned judge failed to advert his mind to the fact the Chief Justice had also dismissed the appeal of the appellant in Appeal No. 7 of 1991 (now Criminal Appeal No. 39/93).
In reviewing these two appeals along with the other appeals, the learned Judge came to the conclusion that in all the circumstances of these cases which I have carefully set down above, the custodial sentences were too high. He therefore reduced the sentences to 4 years in each case all to run concurrently. He ended his judgment thus: "In sum therefore, the appellant is to serve 4 years' imprisonment
to be reckoned from 29th September 1992. Apparently it is against all the decisions in the four appeals that the appellant has lodged these
7 appeals.
Appeals in Criminal Appeals Nos. 41 and 39 of 1993
The appellant who appeared quite intelligent and well educated made
certain concessions. He agreed that indeed both Barrington-Jones, J.,
and the Chief Justice had dealt with the appeals Nos 41 and 39 of 1993,
and that he had no quarrel with the decisions in both. The effect of
this concession is that the judgments of the magistrates in both cases
remain. These are:-
1.
In Criminal Appeal No. 41 of 1993 the appellant is to serve a term of prison of four years with effect from June 19, 1990.
2.
In Criminal Appeal No. 39 of 1993 the appellant is to serve a prison term of four years to run consecutively
to the term imposed under Criminal Appeal No. 41 of 1993. In effect therefore in respect of Criminal Appeals Nos. 41 and 39 of 1993, the appellant is to serve two terms of imprisonment cumulatively eight years with effect from June 19, 1990. Appeals in Criminal Appeals Nos. 40 and 42
As regards these two appeals the appellant told us that he would like to argue against both conviction and sentence. When we pointed out to him that the sentences of ten years imprisonment imposed in each case to run consecutively had been reduced by the Judge a quo he then said that he would want the sentences to be back-dated. He was very much concerned with being afforded an opportunity to argue against his conviction in both cases. This was for the reason, as he explained to
8 us, that if his convictions stood then he would be deprived of the
beasts which he believed were his. However we pointed out to him that
in any event he would be free to proceed in civil suits to claim
possession of his beasts from whoever is in unlawful possession.
When we pointed out that he did not proffer argument against the convictions when the appeals were being heard by Gyeke-Dako J., he told us that he did not do so because his counsel failed to show up in court.
I told the appellant that much as he would be entitled to my sympathy if indeed his counsel failed to attend court without good reason, it is clear that had he wanted he would have had no difficulty whatsoever in requesting the learned judge to reconsider his convictions. He did not do that, and learned State Counsel confirmed that he did not give any indication at the hearing that he was pursuing his appeals against sentenced. I have not found any basis
in law for me to send these two appeals back to the High Court as requested by the appellant so that that court may reconsider the convictions of
the appellant in the magistrates' court. Indeed I have carefully read through the records of proceedings in those courts and I have not discovered any errors or other reasons why this court may grant any such indulgence were it possible in law.
Now as for the order of the Judge a quo reducing the sentences of ten years imprisonment to four years in each of the two cases, I am not persuaded that such reduction was proper on the facts of the
cases. The learned trial magistrate had, in Criminal Appeal No. 42 of 1993, given copious reasons for imposing a sentence of ten years. Some of these
9 are :-
1.
"Many Batswana depend on their cattle for living and offences
of this nature greatly cripple the means of living of the concerned owner(s)."
2.
That the appellant meticulously planned how he was going to commit the offences.
3.
"The value of the involved beasts is quite massive and accused has gained from his illegal activities. He sold some cattle and pocketed P6 088.82."
4.
He had a previous conviction for stock theft.
5.
"He is such a menace not only to the public but to the law enforcement agencies. Countless efforts were made to bring him to
book when he had decided to run away from the
C3.S6 •
•
As I have said these are some of the reasons given by the learned trial magistrate for imposing the sentence that he imposed in this case.
The learned Judge on appeal made a two-pronged attack on the orders of the learned trial magistrate. The first is that these sentences (as well as those in the other two cases in which I have held that he had no competence to interfere ought to have been made to run concurrently. This should be so because the several acts of stealing were done
in execution of the same design and that they formed one continous transaction; and also that the offences form one or are a part of a series of offences of the same or similar character and could have been tried together by virtue of Section 129(1) and (2) of the Criminal
10 Procedure and Evidence Act.
The second attack made by the learned judge is as regards the severity of the term of 10 years' imprisonment and in this regard he said:-
"It is to be noted that the appellant is not legally represented. It is therefore incumbent on this court to see that justice is done. The maximum term of imprisonment for stock theft is 14 years. I therefore agree with Mr. Tiroyakgosi, the learned State Counsel appearing for the State in this case that the 10 years imprisonment imposed by the court a quo was on the high side and should be reduced." He therefore slashed the 10 years' imprisonment to four years.
Whilst it may be conceded that the learned judge was right in holding that the sentences could be made to run concurrently, I regret to say that, with all due respect, I am unable to agree with both the State Counsel and the learned Judge that this was a case in which a court of appeal was entitled to interfere. The reason for interfering in this case is not, with respect, in consonance with all the principles which have been laid down in very many judicial decisions of this Court and of other final courts of appeal in other jurisdictions. In Mojagi v. The State (1985) BLR 560 at 565, this court put it this way:-"...a court of appeal will not interfere with the sentence
passed by a trial court except in the following circumstances: (a) if the sentence is so manifestly excessive that
11
a reasonable man would not have awarded it, taking into consideration all the cirmstances of the case;
(b)
if there are many circumstances appearing upon the record of the matter which have a bearing on the question of punishment but which the trial court failed to consider, or
(c)
if the trial court had followed wrong principles in imposing the sentence; or
(d)
if the trial court exceeded its jurisdiction in the matter of sentence."
This court in that case then went on to say that "it may be permissible for a court of appeal to interfere with a sentence passed by a trial court if it has before it fresh materials which were not available
to the trial court." In Ngoma v. The State (1986) BLR 173 this court again re-stated these principles somehow differently. See also S v. Berliner 1967 (2) SA 193 AD in which Thompson, JA, said at page 20 that the mere fact that a Court of Appeal regards a sentence as severe is not itself sufficient ground for the court to interfere. In my view none
of the principles enunciated in the relevant cases could be held to have been applicable here, and the Judge a quo was in error to have interfered in the sentences.
During argument in these two appeals I pointed out to the appellant that he stood the risk of the order of the Judge a quo being varied to his detriment. He said he was aware of that risk but he would nevertheless pursue his argument in the appeals against sentence.
12
However although I have no doubt in my mind that the learned Judge a quo was wrong to have made the orders which he made as regards these two appeals, I feel that I should not interfere.
Therefore in respect of each of the Criminal Appeals Nos. 40 and 42, the appellant shall go to prison for 4 years with effect from September 29, 1992, as decreed by the learned Judge a quo. Conclusion:-
In summary therefore the orders which I now make are:-
1.
In each of the four appeals the conviction of the appellant as recorded in the magistrate's court is affirmed.
2.
In respect of Criminal Appeal No. 41 of 1993 the appellant shall go to prison for four years with effect from June 19, 1990.
3.
In respect of Criminal Appeal No. 39 of 1993 the appellant shall go to prison for four years to run cummulatively to the sentence of four years imposed in Criminal Appeal No. 41 of 1993.
4.
In respect of Criminal Appeal No. 40 of 1993, the appellant shall go to prison for four years with effect from September 29, 1992, as ordered by the learned Judge a quo.
5.
In respect of Criminal Appeal No. 42 of 1993 the appellant shall go to prison for four years with effect from September 29, 1992,
as ordered by the learned Judge a quo.
1.
< .'
13
Delivered in open court this 31ST day of January, 1994.
T.A. AGUDA
JUDGE OF APPEAL
I agree,
W.H.R. SCHREINER
JUDGE OF APPEAL
I agree
J.J. TRENGOVE
JUDGE OF APPEAL
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