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S v Phuthego (CLCLB00207) [2008] BWCA 2 (7 January 2008)
.RTF of original document
IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CLCLB-002-07
HIGH COURT CRIMINAL APPEAL 137 OF 2003
In the matter between:
MOLEFE PHUTHEGO
APPLICANT
and
THE STATE
RESPONDENT
Applicant in person
Mrs Attorney B. Keaikitse for the Respondent
J U D G M E N T
________________________________________________________________
ZIETSMAN J.A.
The Applicant was convicted of rape by the Senior Magistrate and was sentenced to the minimum sentence of 10 years imprisonment. His
appeal to the High Court and his application in the High Court for leave to appeal to this Court failed. He now seeks leave to appeal
from this Court.
The facts of the matter are that the complainant was asleep with her boyfriend. The Applicant entered the house where they were sleeping
and proceeded to have sexual intercourse with the complainant without her consent.
The evidence of the complainant and her boyfriend proved the commission of the offence, and the Applicant does not seek leave to appeal
against the conviction.
The Applicant seeks leave to appeal against the sentence only. He was sentenced to the minimum mandatory sentence of 10 years imprisonment.
He makes two points. He submits firstly that the sentence should be backdated to the date of his arrest. He was allowed out on bail,
but alleges that his bail conditions restricted his movements and caused him to lose his job. The question whether this would justify
a backdating of his sentence was considered by the High Court and rejected. In my opinion there is no reasonable prospect that the
Court of Appeal will differ from the conclusion reached by the Judge in the High Court.
The Applicant’s second point is that in terms of Section 27(4) of the Penal Code a Court can in exceptional circumstances impose
a sentence less than the minimum prescribed sentence.
This section reads;
“( 4) Notwithstanding any provision in any enactment which provides for the
imposition of a statutory minimum period of imprisonment upon a person convicted of an offence, a court may, where there are exceptional
extenuating circumstances which would render the imposition of the statutory minimum period of imprisonment totally inappropriate,
impose a lesser and appropriate penalty.”
The Applicant alleges that there are exceptional extenuating circumstances present in his case. He refers to his age (he was 19 years
old when he committed this offence) and his ill health (he is HIV positive). He was drunk when he committed the offence and he is
a first offender. He says that he has learnt his lesson and will not commit a similar offence in future. He also tells me that he
has passed a course while in prison and now wishes to apply his newly acquired knowledge.
In terms of Section 27(4) of the Penal Code a sentence less than the minimum prescribed sentence can only be imposed where there are
exceptional extenuating circumstances which would make the minimum prescribed sentence totally inappropriate. The circumstances referred
to by the Applicant are not exceptional extenuating circumstances such as to render the minimum sentence of 10 years imprisonment
totally inappropriate.
My conclusion is that the applicant has no reasonable prospects of success on appeal and 0.his application is accordingly dismissed.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 7TH DAY OF JANUARY 2008.
______________________________
N. W. ZIETSMAN
[JUDGE OF COURT APPEAL]
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