Sekobolo v The State (Criminal Appeal No. 36/202) [2003] BWCA 29; [2003] 2 B.L.R. 50 (CA) (25 July 2003)

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Sekobolo v The State (Criminal Appeal No. 36/202) [2003] BWCA 29; [2003] 2 B.L.R. 50 (CA) (25 July 2003)

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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE

CRIMINAL APPEAL NO. 36/2002

In the matter between:
ONTLAMETSE SEKOBOLO      Appellant
And
THE STATE        Respondent
Mr. L.T. Mothusi for the Appellant
Mr. A.C. Mubika for the Respondent
JUDGMENT
CORAM: KORSAH J.A. ZIETSMAN J.A. AKIWUMI J.A.
ZIETSMAN J.A:

The appellant was, in the High Court at Lobatse, found guilty of murdering Tomeletso Nkwe on 20^th April 2000. Extenuating circumstances having been found to be present, the appellant was sentenced by the trial judge to 30 years imprisonment. The appellant noted an appeal against both his conviction and sentence but at the

hearing before this Court he, through his counsel, withdrew his appeal against his conviction. We are concerned only with the appeal against his sentence of 30 years imprisonment.

It appears from the record that the deceased, a girl of approximately 18 years of age, was the appellant's girl friend. There were no eyewitnesses to the murder but the evidence establishes clearly that it was the appellant who murdered the deceased. He admitted to detective inspector Kgaogano that he had killed the deceased and he further told Kgaogano that he had killed her because she was cheating on him. Whether or not the appellant's entire statement to Kgaogano amounted to a confession and should not have been admitted in evidence, need not concern us in view of the fact that the ultimate correctness of his conviction is not disputed.

The murder was of a brutal nature. The body of the deceased was found tied to a tree. Her clothes were soaked in blood and she had six injuries to her head and face which were described by doctor Prabhakar, who carried out a post mortem examination of her body, as chop wounds. He also found similar chop wounds to both of her

hands suggesting that she had used her hands in an attempt to ward off the blows aimed at her face and head. The cause of death was described as "shock and haemorrhage due to multiple chop wounds." A piece of wire was found tied around the deceased's neck but this, according to Dr. Prabhakar, did not cause any serious injury to the deceased.

In her judgment on the question of extenuating circumstances the trial judge considered both aggravating and extenuating factors. The aggravating factors were that the appellant had repeatedly chopped and hacked at the deceased's head at a time when the deceased was restrained by a wire tied around her neck and apparently tying her to a tree, and could only use her hands to try to protect herself, and the fact that the deceased was a young 18 year old girl. The points listed in favour of the appellant by the trial judge were the fact that he was only 20 years old at the time of the commission of the offence and the fact that the circumstances surrounding the crime suggested that the appellant was in "some kind of emotional frenzy" and a "jealous rage" when he attacked the deceased. The fact that he had written a suicide note, showing an intention on his part to

commit suicide, was a further factor pointing to the emotional state he was in at the relevant time. There were other indications also which I need not mention in view of the fact that after weighing up the aggravating and extenuating circumstances, the trial judge came to the conclusion that the extenuating circumstances were such that a sentence other than death, was indicated. The trial judge then imposed a sentence of 30 years imprisonment.

In deciding on an appropriate sentence the trial judge referred to
Section 203(2) of the Penal Code which provides that in a case of
murder with extenuating circumstances any sentence other than
death can be imposed. In deciding what would be an appropriate
sentence in this case she referred to various sections of the Penal
Code which provide for severe minimum sentences for offences less
serious than murder, and she then stated, inter alia, the following

"Thirdly, the reality is that any custodial sentence handed down by a trial court means, in effect, two thirds of such a sentence. This is in terms of Section 90 of the Prisons Act, which provides for remission of one third of the handed down sentence in all cases where a sentence is longer than one month. This is of course the case with all such sentences, but the fact deserves bearing in mind whenever a sentence is handed down."

5
The reference to Section 90 should be a reference to Section 91.
This section reads as follows:

"Subject to subsection (2), every prisoner under sentence of imprisonment for more than one month shall, on admission to prison, be granted remission of one third of his sentence and may thereafter forfeit that remission or part thereof as provided by this Act."

The learned trial judge then, after listing various factors to be taken
into account in favour of the appellant, including the very important
fact that he is a first offender, stated:

"Further, I have also considered the age at which he will be released from prison and note that such age will allow him a substantive number of years to still live in freedom and hopefully to contribute meaningfully to society."

The sentence then imposed was one of 30 years imprisonment
backdated to 23^rd April 2000 being the date when the appellant was
taken into custody.

The main question for us to decide is whether, as submitted by Mr. Mothusi for the appellant, the trial judge misdirected herself in taking into account the provision of Section 91 of the Prisons Act when deciding what sentence should be imposed upon the appellant.

It is to be noted that in terms of Section 91, although a sentenced prisoner is granted a remission of one third of his sentence on his admission to prison, he still runs the risk of that remission, or part thereof, being forfeited. This provision in the Act is in its effect similar to the practice adopted in many countries of remitting one third of a prisoner's sentence on the grounds of his good behaviour while in prison.

The question we have to determine has been considered and dealt
with in the courts in other countries. In England two separate cases
involving this question were dealt with together on appeal. The
appeal case is reported as MAGUIRE AND ENOS (1956) 40 Cr. App
R. 92 CCA. In one of the cases the sentencing court, on the question
of sentence, had stated the following:

"In order to secure — that you should be removed from criminal circulation for four years and eight months, owing to the provisions that you automatically receive a reduction of a third of your sentence for good behaviour, we have to sentence you to seven years —."

In the other case the following was stated by the sentencing court:

"Under the law of this country you will serve two-thirds of any sentence we pass upon you, and in order to keep you in prison and out of mischief for three years and four months we have to pass a sentence of five years

imprisonment on you — you will not have to serve more than five years, and if you behave yourself you will be out in three years and four months."

On appeal to the Court of Criminal Appeal the sentences in both
cases were reduced. It was there held that a court should pass a
sentence which it thinks the gravity of the offence deserves and
should not, in fixing the length of the sentence, take any question of
remission of sentence into account.
Similar views have been expressed in various cases in South Africa.
In the case of R V GOVENDER 1949 (3) S.A. 589 (N) the following
was stated at page 591:

"I can see nothing wrong in a magistrate saying to himself: "I think the accused should receive a heavy sentence; he should get six months imprisonment. Is that too severe? I don't think so; if he behaves himself he will earn a substantial remission." In the present case the magistrate did no more than this. He did not say to himself: "I think the accused ought to get 4!4 months; so as to make sure that he will serve that period I propose to give him six months so that he will actually serve 4¹/2 months after earning remission." If he had said that, it may well be that his approach was wrong. But other passages in his reasons make it abundantly clear that he did not approach the problem in that way at all — the period of 4¹/2 months was never in his mind as the appropriate term of imprisonment."

In the case of R v ANTONIO 1958(3) S.A. 536(S.R.) it was held that a magistrate is not entitled deliberately to impose a sentence which has the effect of preventing an accused from enjoying the benefit of the Prisons Regulations relating to remission of sentence, i.e. by imposing a sentence of twelve months imprisonment where he regards nine months actual imprisonment as the appropriate sentence. In the case of S v KHUMALO & ANDERE 1983(2) S.A. 540 (N) it was held that it amounted to a serious misdirection for a magistrate, when passing sentence, to take into account the fact that the accused's release on parole after six years was a probability. S v S 1987(2) S.A. 307 (A) is a case where the Appellate Division in South Africa held that although a judicial officer, in the determination of an appropriate sentence for a crime, does not necessarily have to close his eyes to the fact that a prisoner might possibly be released on parole, it remains an uncertain factor whether a prisoner in a particular case will be released on parole and if so, to what extent his sentence will be reduced. It was held that such eventuality cannot, in the determination of an appropriate sentence, be taken into account as a probability. See also the case of MHLAKAZA & ANOTHER v S 1997 ALL S.A. REPORTS 185 (A) at P193 d-q.

In my opinion the principles set out in the abovementioned cases are sound principles and should be applied in Botswana.

It is true that the provision in the Penal Code (Section 91) provides that a prisoner will immediately on his admission to prison be granted a remission of one third of his sentence. However under certain conditions this remission will be forfeited in whole or in part. It may be improbable that the prisoner will misbehave and have to forfeit his remission but this possibility does exist. There is little if any difference between this situation and the situation operating in countries like South Africa where a prisoner will in all probability have one third of his sentence remitted for good behaviour while in prison.

In the present case it seems to be clear from her reasons for sentence that the trial judge intend the appellant to serve a sentence of 20 years imprisonment but imposed a sentence of 30 years imprisonment because of the provisions of Section 91 of the Penal Code. This, in my opinion, constituted a misdirection which leaves

this Court at large to reconsider the matter and to impose an appropriate sentence.

I have already pointed to the brutality of the murder and the other aggravating factors as found by the trial judge. As against these there is the fact that the appellant is a first offender and he was 20 years old at the time of the commission of the offence. Taking all factors into account it is our conclusion that a sentence of 20 years imprisonment is an appropriate sentence.

In the result the appellant's conviction is confirmed. His appeal against sentence succeeds to the extent that the sentence is reduced to 20 years imprisonment reckoned from 23^rd April 2000.

DELIVERED IN OPEN COURT THIS^^DAY OF JULY 2003.
^{tk^J^-}

N.W. ZIETSMAN (JUDGE OF APPEAL)

I agree ...A..,
/K.R.A KORS^H (JUDGE OF APPEAL)

' v 11
I agree
A.M. AKIWUMI (JUDGE OF APPEAL)

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