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Kamwi v The State (Criminal Appeal No. 3 of 1999 ) [1999] BWCA 8 (23 July 1999)

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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE

Criminal Appeal No. 3 of 1999 [High Court Criminal Appeal No. F53 of 1997]

In the matter of:

MASTER ALEC KAMWI Appellant

And

THE STATE Respondent

Appellant in person

Ms S. Keitire for the Respondent

JUDGMENT

CORAM: J.H. STEYN, J.A.

LORD W.I.S. ALLANBRIDGE, J.A.
G. FRIEDMAN, J.A.

STEYN I.A.

The appellant was convicted of the offence of Rape contrary to Section 142

of the Penal Code [Cap 08:02] in the magistrate's court. He was sentenced to 10

years imprisonment and 4 strokes by Her Worship Magistrate Lilian Mohwasa. He

appealed to the High Court against both his conviction and sentence. In a judgment delivered on 9 September 1998 by Gaefele J. the appellant's appeal against his conviction was dismissed. The High Court set aside the sentence of 4

strokes which had been imposed by the Magistrate Court but increased the period

of imprisonment from 10 to 15 years. By notice dated 15 January 1999 the appellant applied for leave to appeal against both his conviction and sentence. Leave to appeal was granted and the appellant appeared before us in person.

In so far as the conviction is concerned the appellant contended that his conviction was flawed because it was - as he called it a case of mistaken identity. In order to adjudicate upon the merits of this contention it is necessary briefly to set out the facts.

The complainant was at the time of these events a school girl of 11 years of age. She went to school at the K.P.S. where the appellant was a teacher. On 19 August 1995 the appellant came to the complainant's home. He appeared to be under the influence of liquor. He was pushing a bicycle. Evidence adduced by the State established that appellant asked the complainant to take the bicycle which he was pushing to the house of one Moleti at the teachers' quarters. The complainant at first declined. However the appellant forced her and told her that unless she took the bicycle to Moleti's home he would kill her when the school resumed after the holidays.

Probably induced by the threats made by the appellant she complied with his instructions and pushed the bicycle to Moleti's house. When she got there she found that the appellant had preceded her. She pushed the bicycle towards the house and leant it against the wall. At this point the appellant grabbed her and pulled her into the house. She struggled and fell against a chair and knocked herself unconscious for a moment or two. When she recovered she found that she had been pushed into the bedroom; the appellant closed the door behind them and proceeded to lock it. The appellant struck her about the head and face and she says she lost consciousness. When she regained consciousness she noticed that she had been stripped of her clothing and that she was soaked in blood. Her clothing lay about her and was blood stained. She also noticed she had blood on her thighs and was bleeding from her vagina. The mattress on which she was made to lie was also blood soaked. She noticed that the appellant had left the room but had locked the door.

The medical evidence confirmed the evidence of the complainant in so far as the injuries to her private parts are concerned. Dr. Chikuta testified that he attended to the complainant's injuries at about 11 p.m. on the day that the assault took place. Her body was stained with fresh blood. She was frightened, very apprehensive, bleeding from her vulva and on examination he discovered that she had a severe tear of the perineum. The hymen was absent. The doctor described the tear "as very big, extensive and bleeding very profusely." The examination was very painful and because of the extent of her injuries he had the complainant admitted to theatre for purposes of stitching the perinial tear. He concluded that there was evidence of forced vaginal entry which may well have been accomplished by "an erect adult penis".

The evidence of the complainant was also confirmed by her mother. She had gone to church and when she came back at 6 p.m. she enquired about the whereabouts of her daughter. She was told by those present that the complainant had been sent by the appellant to take his bicycle to Moleti's home. The witness sent the complainant's sister to find her. The latter returned with the news that she had been informed by one Goitsemodimo that he had seen the appellant hitting the

complainant and pushing her to the ground.

She (complainant's mother) described how she searched, first accompanied

by the police, then by her relatives for her missing child. On receiving information

about the latter's whereabouts she went to a house where the child had last been

seen. She describes the events that followed thus:

"At that house, we found the doors locked, and it was dark. I called T. name about 5 times. I went around the house as I called her name.

T. responded from inside the house saying that she could not stand up from where she was. Banyatsang piled stones up beneath a window and got on top, she opened a window that was partially open and pulled the child out.

I saw that the child was bleeding from her genitals, her clothes were blood stained. She was wearing her skirt and skipper.

We took her to the police station and told them that Goitsemodimo had shown her where the child was, and that I was not happy with the carefree manner in which they had responded to my child's case.

The doctor asked me to sign a paper for the child to be taken to theatre to be fixed."

(The reference to that house is variously described as "Moleti's house" and

as "the house of Kamwi's (the appellant) brother." It will be seen from the police

evidence that it was regarded as the appellant's house by the police and was

referred to in these terms by the appellant himself). Further corroboration which

tended to confirm the identity of the complainant's assailant was given by Constable

Molefhi. He tesified that at about 22:30 hours on the 19^th of August 1995

complainant's mother came to the police station where he was on duty accompanied by the complainant, to lay a charge of sexual assault against the appellant.

He says that the complainant was in a state of shock, was bleeding profusely, her hands and clothing soaked in blood. He rushed her to hospital where she was hospitalised for three days. The witness says he tried to locate the appellant that night but could not find him anywhere. However on the following morning when he went to Kgaphamadi location he found and arrested him. He went to the hospital where he found the complainant's mother and accompanied her and the appellant to the scene of the assault which he describes as appellant's bedroom. In this bedroom there were signs of a struggle. There were blood stains on the floor, mattress and window pane. He said he asked the appellant to explain the blood­stains. He failed to do so and could not give any explanation how the blood came to be "in his (appellant's) house." He says he cautioned the appellant that he may face a charge of rape depending on the medical evidence that he was expecting to receive from the hospital. The appellant's response was that he (appellant) and the young girl were lovers and that "the young girl ran to him when she saw him going home." In cross-examination by the appellant the following passage appears on the record:

"Q. Who, other than the police saw you get the mattress from my house.

A. The child's mother.

Q. Do 1 have a house at the teacher's quarters?

A. You told us that it was your house, and you told us it was yours.

Later in evidence the witness was asked:

Q. Does this mattress belong to me.

The witness answered :

"Yes it was taken from your house in your presence.

Q. What made me accept the offence of Rape.

A. You never accepted. You said she was your lover."

Later under cross-examination by the appellant Constable Molefhi confirmed that the time and date on which he arrested the appellant was the morning of 20^th August 1995. The appellant was therefore obliged to contend that Constable Molefhi had not only lied, but had conspired to have him convicted of an offence which he (the witness) knew the Appellant had not committed because he was in police custody at the time.

The appellant himself gave evidence. He testified that on the 18 August 1995 he was actually in police custody and was so detained at the time that this offence was committed. Indeed it was his contention that he was arrested on 18 August by no one other than Constable Molefhi at Kgaphamadi. A witness was called with a view to confirming this alibi. It was, however, quite clear that the witness was talking of an arrest which took place in 1992 and that his evidence had no relevance in respect of the events that took place on 19th August 1995.

The Magistrate rejected the evidence of the appellant; he accepted the evidence of the complainant as corroborated by the other witnesses and more particularly by Constable Molefhi. The attempts by the appellant to challenge the validity of these findings can only be described as purile. There is no reason why these findings should be disturbed. The case against the appellant was an overwhelming one and the High Court was quite correct to confirm his conviction.

In so far as the sentence is concerned the appellant has complained that he was not given an opportunity by way of notice or otherwise to address the court in mitigation when it was considering an increase in the sentence imposed by the magistrate. Miss Keitire who appeared on behalf of the State correctly, in my view, conceded that this was an irregularity. If a court is considering an increase in sentence imposed by another court, it is obliged to give an appellant an opportunity of placing such relevant information as well as such submissions as he or she deems appropriate before such a court in order to ensure that justice is done. Whilst the increase in sentence imposed by the court a quo is authorised by law, such an increase took place without affording the appellant any opportunity to contest the propriety of such an action. It follows that the increase in the sentence imposed by the Court below has to be set aside. That does not, however, mean that sentence imposed by the magistrate's court is necessarily to be reinstituted. This court is clearly now seized with the duty to determine what an appropriate sentence should be.

We informed the appellant, after he had concluded his argument on his appeal against his conviction, that it was our view that the court had erred in not affording him proper opportunity to make submissions as to why his sentence should not be increased. However, we would give him that opportunity. He proceeded to make submissions to us in regard to certain circumstances which he contended were extenuating. He says that he lost his mother when he was in his teens; and that he suffered some psychological or psychiatric problems as a result of this fact. He pleaded with us to grant him leniency particularly in view of the fact that he could be a productive citizen. He relied very heavily on the fact that he was a first offender. For these reasons he submitted a sentence of 15 years was startlingly inappropriate. The sentence imposed by the magistrate was in his view a proper sentence for the offence he committed.

We have given careful consideration to the arguments advanced by the appellant. Indeed the fact that appellant is a first offender is a weighty consideration. However, the following aggravating circumstances are present.:

(1) the offence was not committed on the spur of the moment but was
both planned and ruthlessly executed;

(2) it was a brutal assault on an innocent young girl of 11 years of age;

3. she was seriously injured by the brutal acts of the appellant;

4. she must have experienced serious psychological trauma as a result of the rape;

5. finally - and perhaps most seriously - appellant was a teacher at the same school where the complainant was a pupil and he abused his position of authority to satisfy his sexual desires.

Deterrence is in these circumstances a paramount consideration. In spite of the irregular manner in which the sentence was imposed in the High Court we are of the view that the assessment by the learned judge of 15 years imprisonment for this crime was the right one. In the result the appeal against the conviction is dismissed. Appellant is sentenced to 15 (fifteen) years imprisonment.

Delivered in open court at Lobatse on 23^rd July 1999.

J.H. STEYN
[JUDGE OF APPEAL]