Botswana: Court of Appeal

                  Court of Appeal Criminal Case No. 048 of 2004

In the matter between

MODISAOTSILE BOGOSINYANA                           APPELLANT

Lobatse 9 and 26 January 2006

RAMODIBEDI JA

1.      

The appellant was convicted in the High Court of the murder of his girlfriend, Sadi Selogelo (“the deceased”), contrary to section 202 of the Penal Code.

2.      

Extenuating circumstances having been found in his favour, the appellant was sentenced to 20 years’ imprisonment commencing from the date of his arrest. He has appealed to this Court against sentence only. He does so on the ground that being a first offender, the sentence in question is “too harsh and has induced a sense of shock and hopelessness.” It is submitted on his behalf that the learned trial judge erred in law in failing to balance the interests of society, the crime in question and the offender while over-emphasizing the seriousness of the offence.

3.      

Before determining the merits or demerits of the appellant’s appeal, it is necessary to give a brief summary of the facts in this case. It will be observed at the outset that they are regrettably of a pattern becoming increasingly common – a love affair between two jealous lovers ending in tragedy. Needless to say that in legal parlance, offences resulting from such love affairs are sometimes referred to as “crimes of passion”.

4.      

In outline, the prosecution case was that the appellant and the deceased were lovers since 1995 even though they stayed apart. The appellant stayed at Old Naledi in Gaborone while the deceased stayed at Gaborone West. On 7 July 2000, the appellant apparently had the indiscretion to bring another woman, namely Keanole Ramotsurupana (PW6), into his house. He had been proposing love to her. After entering the house, the pair locked the door. As fate would have it, the deceased arrived unannounced and knocked at the door. The appellant refused to open but was ultimately persuaded to do so by the landlord. Hence the deceased entered the house only to find the appellant with another woman (PW6). As could well be expected, the deceased was furious. She naturally accused the appellant of being unfaithful and in the process she hurled a mouthful of unpleasant words and insults at the appellant. In these circumstances PW6 left the house in a hurry.

5.      

Although peace between the appellant and the deceased momentarily returned, matters took a turn for the worse the very next day. On 8 July 2000, the deceased continued to hurl insults at the appellant for being unfaithful. She persistently called him a “bitch” who was flirting around with women. All of these took place at the deceased’s house at Gaborone West. The deceased sought to end the relationship. It was at that stage that the physical fight between the two started. They grappled and it was not disputed on appeal that the appellant strangled the deceased with a tie thus causing her death. He thereafter left the scene. It shall suffice merely to add that when the deceased’s body was discovered, one end of the tie used to strangle her was tied securely to the foot of the bed in the deceased’s room. This, the trial court considered to be an aggravating circumstance against the appellant.

6.      

According to professor W. O. Odesamni, a consultant Forensic Pathologist with the Botswana Police Service stationed in Gaborone, the deceased died of asphyxia due to strangulation.

7.      

It is pertinent to record at this stage that the learned trial judge made crucial findings in favour of the appellant. In the process he said this –

“The accused was deeply hurt and insulted by the allegations of sexual impropriety made against him by the deceased. The verbal slanging match between him and the deceased turned physical. Seeing the neck-tie on the bed the accused in a fit of frenzied rage decided to either silence or harm the deceased by throttling her. He did both with fatal consequences and without caring what those consequences may have been. It was a sadistic and cruel murder of a defenceless woman.”

8.      

Crucially, however, the learned trial judge made a finding that the appellant was “provoked or else his frenzied rage would never have come about.” Thus provocation and lack of premeditation were found to constitute extenuating circumstances in the matter.

9.      

With the above prelude, it is no doubt opportune for me to say something about the correct principles involved in sentencing. A good starting point is that the determination of sentence is a matter pre-eminently within the discretion of a trial court. An appellate court will not interfere with the sentence imposed by a trial court unless there is a material misdirection resulting in a miscarriage of justice. Nor will an appellate court interfere merely because it considers that it would itself have passed a different sentence if it had sat as a trial court. That proposition is so well established in this jurisdiction, as indeed it is in other Commonwealth jurisdictions, that it hardly requires authority.

10.     

It is equally important to bear in mind that punishment should fit the offender as well as the crime while at the same time safeguarding the interests of society. It is thus a delicate balance which should be undertaken with utmost care. In this regard it is important to remember the age-old caution not to approach punishment in a spirit of anger. The justification for such caution, as one seems to have read, lies in the fact that he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. See for example, S v. Sparks and Another 1972 (3) SA 396 (A) at 410.

11.     

In his commendable zeal to do justice, the learned trial judge regrettably over-emphasized the seriousness of the offence for which the appellant was convicted. In the process he failed to give sufficient weight to the mitigating factors such as the extensive provocation which the appellant had suffered at the hands of the deceased as fully set out in the findings referred to in paragraphs [7] and [8] above.

12.     

Furthermore, the learned trial judge failed to consider altogether the following mitigating factors which appear on the record:
(1)     

that the appellant had just been dismissed from work on the day preceding the killing of the deceased. It was submitted on his behalf that this factor, coupled with the provocation he suffered at the hands of the deceased, may possibly reasonably have clouded his judgment. I see much force in this submission particularly in view of the fact that no motive was established for the killing of the deceased.
(2)      On 4 December 2000, Dr. Paul Sidandi, a Senior Psychiatrist at Lobatse Mental Hospital, filed a report in which he gave the opinion that the appellant “suffers from Asthma and was mildly depressed at the time of the examination” (record page 167).
(3)      According to Dr. Sidandi, the appellant was “sorry” for what he had done (record page 36). On any account, in my view, this is evidence of remorsefulness on the appellant’s part. Dr. Sidandi duly gave evidence at the trial in question. He duly confirmed his report and handed it in as Exh “C”.

13.     

It will be recalled from paragraph [7] above that the trial court characterized the offence in question as “sadistic”. But worse still, the trial court made the following remarks to the appellant:

“Frankly, I still regard you as a brutal and sadistic man.”

With respect, the finding that the appellant is a “sadistic” man is not justified on the facts. It is, in my view, a clear example that the trial court approached the question of sentence in a spirit of anger and thus over-reacted by imposing the sentence that it did. Quite clearly, and without minimizing the seriousness of the offence, 20 years’ imprisonment appears to me to be on the high side.

14.     

In the light of the foregoing considerations, I conclude therefore, that this Court is justified, in the interests of justice, in interfering with the sentence imposed by the trial court. In this regard, the most appropriate sentence that I can think of in the circumstances of this case is one of fifteen (15) years’ imprisonment commencing on the date of the appellant’s arrest.

15.      In the result, the appeal succeeds to the extent that the sentence of twenty (20) years’ imprisonment imposed by the trial court is set aside and replaced with the following sentence -

“Fifteen (15) years’ imprisonment. Such sentence to commence on the date on which the appellant was arrested.”