Garenakgosi v The State (Criminal Appeal No. 34 of 1995) [1996] BWCA 7 (1 February 1996)

2 or of any offence of which violence to the person of another is
an element. It is against this sentence that the Appellant has filed this appeal.

The facts show that both the deceased and the Appellant were among a group of persons who were drinking chibuku [an alcoholic beverage] at the Railway Quarters in Francistown on April 3, 1993. After they had consumed some quantity of the drink a quarrel ensued between the two men over a ball-pen. The deceased was said to have demanded the return of his pen from the Appellant, who however denied ever receiving a pen from him. According to the summary of the findings of the learned trial Judge which has not been challenged, after this dispute the two men traded insults with each other. A scuffle ensued during which the deceased pulled the accused into an open space in a nearby yard. Thereafter the deceased who was bigger and more robust than the Appellant started hitting the Appellant with his fist. Soon the deceased snatched the Appellant's pair of dark-glasses and tried to make away with it. As the Appellant pursued the deceased with a view to retrieving the glasses, the latter then smashed them on the ground. The Appellant became infuriated. The Appellant then got hold of a mud-brick and threw it at the deceased. The brick hit the deceased at the back of his head, as a result of which he fell down. He was taken to a

It was on these undisputed facts that the Appellant was found guilty of manslaughter and sentenced as set down above. In this appeal Mr. Mlaudzi for the Appellant has urged us to interfere in the sentence passed by reducing it relying mainly on the particular circumstances and the decision of this Court in THE STATE VS. BAREELENG 1984 BLR 241. As to the facts the Counsel pointed out that [1] the Appellant was a first offender; [2] he was only a young man 22 years of age at the time of the offence; [3] he is of rustic background; [4] he had been in custody for five months before he was released on bail; and [5] he had been provoked.

It has now become trite that the question of the appropriate sentence to be imposed upon a person convicted of an offence is primarily a matter at the discretion of the trial Court, and that an appeal Court will interfere only in certain circumstances which have been laid down in numerous decisions of this Court. That had this Court been the Court of trial it would have imposed a different - lesser or greater - sentence is not one of such circumstances. See MAJAGI VS. THE STATE T19851 BLR 560. In this case an effective 4 years custodial imprisonment is not manifestly excessive nor does it invoke in me any sense of shock. The learned trial Judge took into consideration each and every

one of the matters mentioned above and others which he was bound to take into consideration and he did not take into consideration any extraneous matters. I therefore, hold that nothing appears on the record or said by Counsel for the Appellant on the strenght of which this Court should exercise its discretion to interfere in the sentence imposed by the trial Court in this

Botswana: Court of Appeal

Garenakgosi v The State (Criminal Appeal No. 34 of 1995) [1996] BWCA 7 (1 February 1996)