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Mhlahlo v The State (Criminal Appeal No. 044 of 2005) [2006] BWCA 12 (26 January 2006)
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 044 of 2005
High Court Criminal Trial No. F6 of 2003
In the matter between
GOBE MHLAHLO
APPELLANT
VERSUS
THE STATE
RESPONDENT
Lobatse 11 and 26 January 2006
Mr. L. T. Mothusi for the appellant
Mr. M. Letsoalo for the respondent
J U D G M E N T
CORAM:
GROSSKOPF JA
LORD COULSFIELD JA
RAMODIBEDI JA
LORD COULSFIELD JA
1.
The appellant was charged in the High Court at Francistown with murdering Ketlamoreng David
on 21 July 2002. On 22 September 2005, he pleaded guilty to the charge, subject to extenuating circumstances. On 23 September 2005
he was sentenced to imprisonment for 15 years.
2.
In the course of the proceedings on 22 September, a statement of facts was read over to the
accused, who said that he agreed with the facts. According to the statement, the appellant and the deceased were both at a music
festival in Francistown stadium on 20 July 2002. The appellant is said to have been drunk and to have been harassing people. In the
early hours of the next morning, a fight broke out between the appellant and deceased. The statement of facts says that it is not
clear why that fight began. The deceased was not armed, but the appellant had a knife and during the fight he stabbed the deceased
once in the chest and then ran away. The deceased staggered to his car and sat in it. He was found there by the police who took him
to hospital, but he died on arrival there. The cause of death was a single stab injury to the chest and the consequent shock and
loss of blood.
3.
The judge was urged to consider a number of mitigating factors. The appellant was a first offender,
aged 21. He had reached form III in his education, and was intending to progress further with it. He had earnings from work as a
taxi marshal and from odd jobs. He had a child aged, then, three, whom he supported. He was also the only breadwinner for three siblings,
since his father was dead and his mother subject to recurrent illness. It was submitted that he had acted from “youthful exuberance”
and that he was deeply remorseful for what he had done. His remorse had been shown by his plea of guilty.
4.
The judge said that he had taken account of the factors put before him but pointed to the tragic
consequences of the appellant’s conduct in carrying a knife, getting drunk and involved in a fight in which he used the knife
and, in view of the nature of the crime imposed the sentence of 15 years imprisonment.
5.
In presenting the appeal, Mr. Mothusi submitted that the sentence of 15 years was manifestly excessive. He stressed that the appellant had pleaded guilty and submitted
that that was a factor which distinguished this case from other cases in which a sentence of 15 years had been imposed, such as Mokholo v The State 1996 BLR 647.He also placed particular weight on the age of the appellant. Mr. Mothusi further suggested that the judge should not have taken the statement of facts at face value, especially when it bore that it was
not clear why the fight began. The judge should have made further inquiries, and if he had done so he would have found that there
were circumstances of provocation which reduced the guilt of the accused.
6.
In my opinion, it is clear that the judge gave careful consideration to all the mitigating
factors put before him. The fact that the appellant pleaded guilty and his age were included among those factors, and Mr. Mothusi did not draw attention to any factor which had not been taken into account by the judge. The weight to be given to those factors
is a matter primarily for the discretion of the judge in the particular circumstances and it is not normally helpful to try to make
detailed comparisons with the facts of other and different cases. In my opinion, there is no reason to criticise the judge’s
assessment of the facts and circumstances or to hold that the sentence was excessive. As regards Mr. Mothusi’s other point, the statement of facts was specifically accepted as correct by the appellant. In these circumstances, it would,
in my opinion, be quite unreasonable to expect the judge to set out on an inquiry into a matter where there was obviously some uncertainty
and might well be conflicting evidence. To do so would be much more likely to cause difficulty and confusion than to assist in arriving
at a proper sentence.
7.
For these reasons, in my opinion, this appeal should be dismissed.
DELIVERED IN OPEN COURT AT LOBATSE ON 26 JANUARY 2006.
____________________
LORD COULSFIELD
JUDGE OF APPEAL
____________________
I AGREE
F. H. GROSSKOPF
JUDGE OF APPEAL
__________________
I AGREE
M. M. RAMODIBEDI
JUDGE OF APPEAL
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