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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal No. CLCLB-017-08
In the matter between:
DAVID RAJANE Appellant
and
THE STATE Respondent
For Appellant: Mr J. B. Akoonyatse
For Respondent Mr F. K. Mpopang
JUDGMENT
CORAM: McNALLY JA
RAMODIBEDI JA
FOXCROFT JA
RAMODIBEDI JA
[1] Typically, this appeal concerns a lover who killed his live-in girlfriend because he could not countenance, so it seems, the idea of sharing her with other suitors. The appeal immediately brings to memory such cases as Moremi v The State 2005 1 BLR 31 (CA); Dimpho Rapula Ntesang v The State CA 36/06; Bachaile Sekoto v The Director of Public Prosecutions CA 37/06; Obakeng Dioka v The State CA 51/06.
[2] Following a conviction for the murder of his live-in girlfriend, Kebabonye Mopipi (“the deceased”), the appellant was sentenced to twenty-one (21) years imprisonment by the High Court. He appeals against the severity of the sentence. He contends that the sentence induces a sense of shock and “hopelessness”.
[3] I should state at the outset that at the hearing of the appeal on 17 April 2008, both Mr Akoonyatse for the appellant and Mr Mpopang for the respondent agreed that the sentence in this matter should be reduced to 15 years imprisonment in the light of the decisions of this court in the Ntesang and Sekoto cases. Accordingly, the sentence was reduced to 15 years imprisonment. It was intimated that reasons would follow. These are the reasons.
[4] The facts, briefly stated, show that the deceased and the appellant were lovers since 1997. They lived together under the same roof since 2000 to 1 April 2004 when the deceased tragically met her death. As often happens in such relationships, the deceased had an old flame which apparently kept burning throughout her affair with the appellant. She was seeing another lover. Incredibly, his name was also David. It is not disputed that the latter paid maintenance for a child which he apparently fathered with the deceased. This naturally caused endless tension between the appellant and the deceased. Indeed David testified as PW8 at the trial that on one occasion the appellant assaulted him for being in the deceased’s company.
[5] On the fateful day of 1 April 2004, the appellant accosted PW8 for being in the company of the deceased. In the process, he fatally stabbed her with a knife three times. She was defenceless. This brutal killing was witnessed by Irene Monthe (PW2) and Keamogetse Sibanda (PW9).
[6] The post-mortem report established that the deceased had sustained three (3) stab wounds as follows:-
An oval-shaped stab wound at the apex of the left axilla on the front of the armpit.
An oval-shaped stab wound at the apex of the left axilla on the back.
An oval-shaped wound on the back of the left shoulder.
There were also two abrasions, one on the front of the chest and the other one on the left upper arm. The cause of death was due to shock and internal haemorrhage.
[7] This Court has spoken often enough that the imposition of sentence is a matter which lies pre-eminently within the discretion of the trial court. It is a judicial discretion which must be exercised upon a consideration of all the relevant factors. An appellate court will ordinarily not interfere with the trial court’s exercise of a discretion in the absence of a material misdirection resulting in a failure of justice. See for example Mojagi v The State (1985) BLR 560 (CA); Moremi v The State (2005) 1 BLR 206 (CA); Masilo v The State (2006) 2 BLR 545 (CA); Bachaile Sekoto v The Director of Public Prosecutions (supra); Dineo Mathepe v The State CA 53/06.
[8] It is, however, instructive to point out that in this country the Court of Appeal has additional power to interfere with sentence passed on the lower court if it thinks that a different sentence should have been passed. This is so in terms of section 13 (5) of the Court of Appeal Act (Cap 04:01). The section provides that:-
“On an appeal against sentence, the Court of Appeal may, if it thinks that a different sentence should have been passed, quash the sentence passed in the lower court and substitute such other sentence, whether greater or lesser or of a different character than the original sentence, as it thinks ought to have been passed”.
See Bachaile Sekoto’s case (supra).
[9] In determining sentence, the trial court correctly considered the triad consisting of the crime, the offender and the interests of society. Regrettably, however, the trial court does not seem to have taken into account the guidelines laid down by this court in Ntesang’s case, namely, that in a case such as this, the trial Judge should think of a sentence in the region of 15 to 17 years subject to adjustments upwards or downwards depending on the particular circumstances of each case. In casu, the Learned trial Judge did not refer to Ntesang’s case in his judgment. Similarly, both counsel did not refer to it in their heads of argument.
[10] It is equally important to remember that this Court has stressed the need for uniformity of sentences whenever this can reasonably be done. See the Ntesang and Sekoto cases. Once again no reference was made to these cases, either by the learned trial Judge or counsel.
[11] All things being considered, and having regard to the guidelines laid down in the Ntesang and Sekoto cases, we have come to the conclusion that the sentence of 21 years imprisonment imposed on the appellant is on the harsh side. We say this without minimising the seriousness of the offence. After all, this Court believes in the sanctity of human life. In casu, a young life was needlessly lost. Furthermore, it behoves the courts to step up their resolve in stamping out the scourge of passion killings in this country. As this Court said in Sekoto’s case, and as we repeat for emphasis, the courts can achieve this objective by imposing appropriately stiff sentences along the guidelines laid down in Ntesang’s case.
[12] Doing the best we can in the circumstances, we consider that a sentence of 15 years imprisonment will meet the triad consisting of the crime, the offender and the interests of society.
[13] In the result the appeal succeeds to the extent that the sentence of 21 years imprisonment is set aside and replaced with the following sentence:-
“Fifteen (15) years imprisonment reckoned from 2 April 2004 when the accused was first taken into custody”.
DELIVERED IN OPEN COURT AT LOBATSE THIS 24TH DAY OF APRIL 2008.
-----------------------
M. M. RAMODIBEDI
JUDGE OF APPEAL
I agree -------------------------
N. J. McNALLY
JUDGE OF APPEAL
I agree --------------------------
J. G. FOXCROFT
JUDGE OF APPEAL
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