Seranyo v The State (Criminal Appeal No. 39/2000) [2003] BWCA 26 (25 July 2003)

The victim of the offence was the appellant's girlfriend, their relationship having lasted for about three years. They lived in different places, and met regularly. On 24^th December 2000 the appellant went to the victim's village with the intention of seeing her. She however appeared to be reluctant to see him. He had been informed by a friend of the victim that she was seeing another boy in Molepolole. The appellant formed the view that he was being spumed, and decided to kill her. He stole a shotgun and two cartridges from a relative's house. He then went to the victim's home and followed her for some time looking for a suitable opportunity to shoot her. Eventually he waited until she was asleep and then shot her. In the same room there were a cousin of the deceased and a baby and they were spattered with blood and brain tissue. After the killing, the appellant walked back to his village where he was arrested the next day. He thereafter cooperated fully with the police and made a detailed confession. Although the case went to trial, at the end of the evidence the defence conceded that a verdict of guilty of murder should be returned.

The judge a quo then heard submissions on extenuating circumstances. She found as aggravating circumstances the fact that the appellant acted with a purposeful single-mindedness in his execution of his decision to kill the victim, and the fact that the motive for killing was purely selfish. As extenuating circumstances, she found that a reading of his confession statement suggests a young man consumed by helplessness and enveloped by a fog of confusion; that although aged 23, he seems to have been rather immature; that the victim was

his first lover, and her refusal to speak to him must have pained him; and that his background of a lack of education and the loss of his father at an early age may have resulted in his rejection by his first lover assuming greater proportions than might otherwise have been the case. In these circumstances the judge held that the appropriate verdict was one of murder with extenuating circumstances. She then heard submissions in mitigation, and has recorded the following matters as relevant. The appellant is a first offender; he readily cooperated with the police and in evidence readily admitted what he had done; his behaviour was totally out of character; his background was disadvantaged in that he lost his father when young and lived a deprived existence with limited job prospects because of lack of education; and despite his age of 23 he was fairly youthful. Balancing the seriousness of the offence against the mitigating factors, she imposed a sentence of 25 years imprisonment.

It was accepted before this court that the judge a quo did not fail to take into account any relevant matter, and did not follow wrong principles. Accordingly the only ground of appeal could be that the sentence was manifestly excessive; MOJAGI VS THE STATE M9851 BLR 560. On behalf of the appellant it was argued that the sentence was indeed manifestly excessive, and the court was referred to a number of cases which, it was said demonstrated that a 25 years sentence was entirely out of line with the level of sentences imposed in offences of this nature. In DUO VS THE STATE 1986 fBLRI 566 the accused had killed a man he found in a compromising situation with his girlfriend by striking him

repeatedly with an axe. The Court of Appeal imposed a sentence of 15 years. In MOKHOLO VS THE STATE 1996 TBLR1 647 the accused suspected that his girlfriend was associating with other men, and after a quarrel he killed her by striking her repeatedly with a shovel. The Court of Appeal found that there were extenuating circumstances "by the narrowest of margins" and sentence of 15 years imprisonment was imposed. Other cases were referred to in which sentences ranged from 25 years (murder in the course of robbery) to 6 years (abused wife killing husband), but in view of the very different circumstances we do not find these cases to be of much assistance in trying to establish some sort of pattern of sentencing. It does appear however that 25 years is very much at the top end of the scale and would be appropriate in cases of for example murder in the course of robbery where though one with aggravating features some extenuating circumstances could be found. In cases such as the present which might be described as the "jealous lover" type, I am satisfied that the imposition of 25 years is indeed out of proportion. I accept that in addition to the mitigating circumstances there were also aggravating circumstances, in particular the premeditation shown by the theft of the gun and the following of the victim, and the callous commission of the crime in the presence of another woman and child. The same however could be said in the cases of DUO and MOKHOLO where the attacks were equally brutal. In my opinion the appropriate sentence is one of 15 years imprisonment, as was imposed in DUO and MOKHOLO.

Botswana: Court of Appeal

Seranyo v The State (Criminal Appeal No. 39/2000) [2003] BWCA 26 (25 July 2003)