You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1996 >>
[1996] BWCA 43
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Molao v The State (Criminal Appeal No. 12/96) [1996] BWCA 43; [1996] B.L.R. 678 (CA) (19 July 1996)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL HELD AT LOBATSE
Criminal Appeal No. 12/96
In the matter between:
MOTSHEREGANYI DOCTOR MOLAO
- Appellant
and
THE STATE
-
Respondent
Mr. E.W. Fashole-Luke for the Appellant Mrs. L.I. Dambe for the State
JUDGMENT
CORAM: Aguda, J.A. Cowie, J.A. Allanbridge, J.A.
ALLANBRIDGE J.A.;
The appellant appeared in the High Court charged with the following two offences: COUNT 1
STATEMENT OF OFFENCE
Murder, contrary to Section 202 of the Penal Code (Cap.08:01). PARTICULARS OF OFFENCE
The accused person, MOTSHEREGANYI DOCTOR MOLAO, on the 6th day of May, 1993, in Gaborone, in the Gaborone Administrative District,
in the Republic of Botswana murdered AGNES BAHUMA. COUNT TWO
STATEMENT OF OFFENCE
Common Assault, contrary to Section 246 of the Penal Code (Cap.08:01). PARTICULARS OF OFFENCE
2 The accused person, MOTSHEREGANYI DOCTOR MOLAO, on the 4th day of May 1993, in Gaborone, in the Gaborone Administrative District, in the Republic of Botswana, unlawfully assaulted one MPHO BAHUMA.
The case went to trial in the High Court and in a considered judgment, delivered on 31st October 1995, the learned trial judge found the appellant not guilty of murder but guilty of manslaughter on Count 1 and guilty of common assault on Count 2. On 17 November 1995 the judge sentenced the appellant to a term of 15 years imprisonment with 3 years suspended on Count 1 and 6 months imprisonment on Count 2, both sentences to run concurrently and to commence on 6th May 1995.
The appellant originally appealed against both conviction and sentence but, after some discussion before this court, counsel for the appellant abandoned his appeal against conviction and only argued his appeal against sentence.
In order to set the scene as regards the nature of the serious offence, which was originally charged as one of murder, I will briefly outline the facts as they were found established by the trial judge.
On 4 May 1993 the appellant was present at the deceased's house at Plot No. 6861, Extension 21, Gaborone. At this time the deceased and the appellant were lovers and the appellant suspected the deceased was associating with another man. On the
3 evening of the day in question the deceased was late in coming home but eventually did arrive about midnight in a car driven by this other man. A quarrel thereafter arose between the parties which was witnessed by three of the deceased's sisters who were in the house at the time. These sisters were named Boipuso, Tebogo and Mpho. The last name sister was the complainant in Count 2. All three sisters, whose evidence was accepted as reliable by the trial judge, stated that they saw the appellant chase the deceased from the kitchen of her house to the yard behind the kitchen. He then caught her when she was beside a scrapped car and knocked her head against it several times. They then said that the deceased fell to the ground unconscious and the appellant kicked her many times on the head whilst she lay on the ground. Thereafter they said the appellant went into the house and returned carrying an electric iron with which he proceeded to hit the deceased many times on her head using the flat surface of the iron. The appellant then left the deceased lying on the ground bleeding from her mouth and nostrils. The deceased was removed to hospital and died on 6th May 1996 as a result of acute subdural haemorrhage with cerebral contusion caused by one or more of the injuries sustained during this prolonged assault on her.
I should mention that at the beginning of the hearing of this appeal, counsel for the appellant sought leave of the court to produce and lodge an affidavit sworn by the appellant to the effect that he was only sentenced on Count 2 to six months imprisonment after he had been removed to prison after being
4 sentenced on Count 1 and then returned to court as the judge had omitted to sentence him on Count 2. However, it was noted by this court that the affidavit had typewritten words deleted from it which deletion was not initialled by either the Commissioner of Oaths or the appellant. Counsel for the appellant then frankly admitted that these alterations had not been authorised. The document was therefore not received by the court and, although at a later stage counsel attempted to make some reference to the facts contained in the affidavit, he was not permitted to do so. In any event as the sentence of 6 months imprisonment on Count 2 was made concurrent with the sentence on Count 1, the matter is now only of academic interest.
The main thrust of the argument by counsel for the appellant was that in determining the appropriate period for a sentence of imprisonment in this case, the sentencing judge had failed to take into account the personal circumstances of the appellant as submitted to him at the time of sentence. This, according to counsel, was clear from the fact that all the judge said on this matter was to be found at page 16 of his judgment and which was as follows.--
"I have carefully considered what Mr. Rubadiri (counsel for the appellant at the trial) has so eloquently said on behalf of the accused. Considering the seriousness of the offence and the accused's previous
5 convictions I sentence him on Count 1 to 15 years imprisonment."
It was suggested by counsel for the appellant that proper practice demanded that a sentencing judge should set out in detail the various personal circumstances of an accused which in fact he had taken into account in arriving at an appropriate sentence in all the circumstances of the case. No authority or case law was cited to us by counsel for such a practice. I do not consider that if the sentencing judge has listened to and considered the submissions of counsel on this matter, he requires to go further and detail all of them in his judgment on sentence.
To require such an exhaustive rehearsal of counsel's submissions in a sentence judgment would in my view be otiose and unnecessary. Furthermore, one can well imagine the number of appeals that might be taken against sentence in the future if such a practice were introduced. I am quite satisfied that such a suggested practice would be inappropriate.
However, I would add that in many cases it would very helpful if a judge did outline the facts he has taken into account regarding the accused's personal circumstances although it is not incumbent upon him to do so.
In the circumstances of this case I am quite satisfied that the sentencing judge did consider carefully everything that was said in mitigation of sentence and that this is not a case where an
6 appellate court would be justified in disturbing the exercise of the discretion of the lower court in passing sentence. This is not a case where in the words of Amissah J.P. in the case of LENOX MALISOLE MAGUBANE v. THE STATE CR.APP.4/91 at page 8, the sentence imposed by the trial court is so disproportionate when compared with the offence committed, that "it induces a sense of shock in the Court." The death of this 25 year old woman was caused by a prolonged and brutal attack on her by the appellant who was then aged 31 years. I consider that the appellant was fortunate to avoid a conviction for murder and a sentence of 15 years with 3 years suspended for manslaughter in such circumstances cannot be said to be excessive.
In deference to the careful argument presented by counsel for the appellant I should add some brief comments. In the first place he made reference to the trial judge's comments at page 16 of his judgment on sentence. These read as follows:-
"The accused has admitted one previous conviction for assault occasioning actual bodily harm and another for causing malicious damage to property. Both offences were committed at the same time and he was convicted of them on 23 rd December 1988. Those convictions portray him as a person of violent disposition."
7 Counsel for the appellant criticised the use of the words "Those convictions" at the beginning of the last sentence, because
only the first conviction related to an offence involving personal violence. I consider that as a matter of grammatical construction counsel is correct in his analysis but, viewing the matter broadly, it is obvious that the judge was fully entitled to consider that the appellant was a man of violence who, as the judge went on to say, did not learn any lesson from his sentence
in this previous case.
In the second place, counsel for the appellant argued that the sentence of 15 years imprisonment for manslaughter in this case was excessive and that a sentence of 6 years imprisonment with 3 years suspended would have been a more appropriate sentence in the circumstances. He also argued that the judge a quo failed to make allowance for what he described as "the youthful exuberance" of the appellant at a time when he himself, according to counsel, had been attacked by the deceased's three sisters. It only remains for me to say that had I found any reason for displacing the sentence of the judge a quo, and thus required to consider sentence de novo, I would not have imposed any lesser sentence on the appellant who had committed such a savage and prolonged attack on a defenceless woman.
In the whole circumstances the remaining appeal against sentence is dismissed, the appeal against conviction having very properly
been abandoned. The sentence and conviction are confirmed.
Delivered in open court this 19th day of July, 1996
LORD W.I.S. ALLANBRIDGE JUDGE OF APPEAL
I agree,
T.A.AGUDA JUDGE OF APPEAL
I agree.
LORD W.L.K. COWIE JUDGE OF APPEAL
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1996/43.html
