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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal No. CLCLB-026-08
In the matter between:
LEBOGANG MOTHUDI Appellant
and
THE STATE Respondent
For Appellant : Mr L. T. M. Mothusi
For Respondent Mr B. C. Nlanda
JUDGMENT
CORAM: TEBBUTT JP
McNALLY JA
RAMODIBEDI JA
RAMODIBEDI JA;
[1] This appeal brings into focus once again the phenomenon of jilted lovers who kill their girlfriends in what is commonly known as crimes of passion. It is a continuing nightmare which must be met with equal determination by the courts of this country aimed at eradicating it. This Court has indeed expressed its resolve in that regard in 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. also David Rajane v The State CA 17/08which was also heard during the current session of this Court.
[2] The appellant was charged with the murder of his girlfriend Nono Kaone Africa Ramotlhwa (“the deceased”). The murder was alleged to have taken place on 24 January 2003, at Ditlhakane Lands in the Kweneng Administrative District.
[3] The appellant was found guilty of murder with extenuating circumstances. This was after he had pleaded guilty. He was sentenced to 10 years imprisonment. He appeals against sentence only. Essentially, he complains that the sentence of 10 years imprisonment imposed on him is too harsh and that it induces a sense of shock. He also complains that the months which he spent at the Lobatse Mental Hospital were not included in his sentence. Finally, in his third ground of appeal he says the following;
“I HAVE LEARNED FROM MY MISTAKES AND I AM IN THE PROCESS OF REGISTERING A FOUNDATION WHO’S (SIC) OBJECTIVE WOULD BE PRIMARILY TO HELP THE NATION ARREST THE HIGH STATISTICS OF PASSION KILLINGS AND DIVORCE RATES”.
[4] I should at the outset mention that after hearing the appeal on 18 April 2008, this Court reduced the sentence of 10 years imprisonment by 3 months to 9 years and 9 months. The Court intimated that reasons would follow. These are the reasons.
[5] The statement of agreed facts, Exhibit “A”, tells a horrific story of a man besotted with love despite being consistently spurned by his girlfriend. The appellant and the deceased had been lovers for a period of three years. Sometime in the middle of 2002, they decided to tie the knot. Both families gave their blessing. By December 2002, however, the deceased had changed her mind. She wanted the proposed wedding to be postponed. The appellant would have none of it. This led to constant quarrels and bickering between the two lovers. The appellant was accusing the deceased of infidelity.
[6] Such was the appellant’s infatuation with the deceased that he broke down and became depressed. At one stage, on 2 January 2003, he cut himself on the wrist with a broken bottle until he bled. He also banged his head against the wall, clearly in an attempt to attract the deceased’s attention. He was later found “just wandering around” aimlessly. Still, the deceased was unmoved. On the contrary, she told the appellant that her other boyfriend had more money than him. The appellant was wasting her time.
[7] On 4 January 2003, the appellant was found sitting on the floor. He was pale and “just staring”. He was taken to Princess Marina Hospital where he received treatment for depression. He was discharged on 6 January 2003. He was, however, still suffering from emotional stress and reactive depression. Meanwhile, the quarrels between the two lovers continued over the postponement of their wedding.
[8] On 24 January 2003, the appellant borrowed a car from his friend, Fortune Nkgare. He then drove to the place where the deceased worked to pick her up. The two lovers broke into the usual quarrel inside the vehicle. This, however, escalated into a fight. In the process the appellant fatally stabbed the deceased with a knife several times, including a stab-wound in the chest. Thereafter, he attempted suicide by stabbing himself in the chest, causing a deep penetrating wound. The post-mortem report revealed that the deceased died from shock and hemorrhage due to multiple stab-wounds including incised ones.
[9] Finally, it is common cause, as the statement of agreed facts shows, that at the time of the commission of the offence, the appellant was labouring under emotional stress and reactive depression. This condition resulted in anger and clouding of his judgment. It was these factors, coupled with the history of the stormy relationship between the parties that resulted in the trial court’s finding of extenuating circumstances.
[10] It has repeatedly been laid down in this jurisdiction, as indeed in most jurisdictions of the Commonwealth, that the imposition of sentence is a matter which pre-eminently lies within the discretion of the trial court. An appellate court is generally loath to interfere with such 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 31 (CA); Bogosinyana v The State (2006) 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.
[11] As this Court has pointed out more than once, the Court of Appeal in this country has additional power in terms of section 13 (5) of the Court of Appeal Act (Cap 04:01) to quash the sentence passed in the lower court and to substitute such other sentence, whether greater or lesser or of a different character than the original sentence as the Court thinks ought to have been passed. The section reads as follows:-
“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 v The Director of Public Prosecutions (supra). See also David Rajane v The State CA 17/08 which was decided during the current session of this Court.
[12] Mr Mothusi for the appellant made an impassioned plea to this Court to reduce the sentence to 7 years imprisonment because of the fact that, in addition to his having been under severe emotional stress and reactive depression when he had committed the crime, the appellant had pleaded guilty as a sign of remorse. He submitted that failure to take this factor into account would discourage people from pleading guilty. That may be so but it is, in my view, not correct to say that a plea of guilty always demonstrates remorse in all cases. Experience will show that some people plead guilty because the evidence against them is overwhelming. A plea of guilty, therefore, must not be blown out of proportion from the facts of each individual case. Similarly, the suggestion that such a plea is decisive in all cases without more is, in my opinion, untenable.
[13] In any event, the trial court did obviously consider the appellant’s plea of guilty as a sign of remorse. In his own words, the learned Judge said this:-
“The accused in this particular instance is a first offender and was 27 years of age at the time of the offence. He has expressed profound remorse both to the court and the deceased’s family for taking away the life of their “diamond”. The evidence shows that before this offence was committed, he was a model citizen of placid character. His attorney has eloquently pointed to the court several factors which the court should take into account in imposing a benign sentence. Some of those factors are already contained in my earlier summarisation of the background of this case in this ruling. I have anxiously given weight to all those factors”.
[14] In a well-balanced judgment, Lesetedi J considered all the relevant factors which have a bearing on the question of sentence in the matter. These, as I repeat, included the fact that the appellant pleaded guilty. In my view, the learned Judge a quo left no stone unturned. In the two previous decisions of the Court, Dimpho Rapula Ntesang v The State and Bachaile Sekoto v The Director of Public Prosecutions cited above, the Court referred to the growing prevalence of murders being committed at the hands of rejected lovers. It noted, however, the wide differences between sentences imposed in respect of them ranging, as they do, from 12 to 25 years imprisonment. In order to attempt to achieve a measure of uniformity in sentences in such cases, but always recognising that the determination of a proper sentence is a matter for the individual Judge according to the circumstances of the case before him, the Court nevertheless opined that:-
“[A]ny judge who has to deal with a case of this kind would do well to start by thinking of a sentence in the region of 15 to 17 years, subject, of course, to adjustments upwards or downwards in the light of any particularly significant circumstances in the case before him.”
[15] In casu, the Learned Judge correctly relied on the above guidelines and as the lower limit of the range of sentences imposed in the past for similar crimes was 12 years, Lesetedi J was more than fair to the appellant.
[16] In these circumstances, I consider that, by seeking a further reduction of his sentence to 7 years imprisonment, the appellant is pushing his luck too far. This was a brutal murder perpetrated upon a defenceless woman. In this regard, it is always instructive to recall the salutary remarks of Tebbutt JP in Moremi’s case (supra) at page 34 namely:-
“The incidence of crimes of violence against women and the fact that the prevalence of such crimes is on the increase are matters of public notoriety, of which this court is also aware and of which it can take cognisance. The need for the court to show that it will not countenance them is manifest and male offenders must be warned that they can expect to face severe sentences if they commit such crimes. This is clearly what the trial court had in mind in this case”.
This warning was repeated in Dineo Mathepe’s case (supra). There is, therefore, no merit in the appellant’s appeal.
[17] The result is that the sentence of 10 years imprisonment is reduced to 9 years and 9 months, taking into account the period which the appellant spent at the mental hospital. Subject to that, the sentence of the court a quo is confirmed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 24th DAY OF APRIL 2008.
-----------------------
M. M. RAMODIBEDI
JUDGE OF APPEAL
I agree --------------------------
P. H. TEBBUTT
JUDGE PRESIDENT
I agree -------------------------
N. J. McNALLY JUDGE OF APPEAL
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