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Keboletseng v The State (Criminal Appeal No 34/201 ) [2002] BWCA 11 (30 January 2002)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO 34/2001 HIGH COURT CRIMINAL COMMITTAL NO F12/1999
IN THE MATTER BETWEEN:
ISHMAEL KEBOLETSENG      APPELLANT
VS
THE STATE        RESPONDENT
APPELLANT IN PERSON
MR P. MAKGABENYANA FOR THE RESPONDENT
JUDGMENT
CORAM: LORD WEIR JA BLOFELD JA SUTHERLAND JA
SUTHERLAND JA:
The appellant pleaded guilty in the Magistrate's Court to a charge of rape. He was subjected to an HIV/AIDS test, which proved positive. The magistrate committed the appellant to the High Court for sentence in terms of Section 295 (1) of the Criminal Procedure and Evidence Act. The judge a quo took the view that because the complainant was 12 years of age, the charge should have been one of

defilement of a child under 16 contrary to Section 147 (1), and substituted a conviction for that offence. The judge ascertained that the appellant was not aware at the time of the offence that he was HIV positive. He then sentenced the appellant to 15 years imprisonment, which he described as the statutory minimum term under Section 147 (3) (a).
The appellant appealed to this court against sentence only. His ground of appeal was that he was a first offender and was remorseful. However, the Court noted that the judge a quo stated when imposing sentence "the accused has not been proved to have been suffering from HIV/AIDS at the time of the commission of the offence." That being so, the precondition for the imposition of a minimum sentence of 15 years has not been established, as was made clear in Makuto v. The State Cr. App. 31/1999. Counsel for the State accepted that this was correct. We therefore quashed the sentence of 15 years and substituted a sentence of 10 years imprisonment, to run from 16th March 1999.
LORD SUTHERLAND ]UDGE OF APPEAL
I AGREE.        
LORD WEIR JUDGE OF APPEAL


I AGREE:        
SIR JOHN BLOFELD JUDGE OF APPEAL
DELIVERED IN OPEN COURT THIS 30th DAY OF JANUARY 2002.

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