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S v Mfundisi and Others (CLCLB-075-07) [2008] BWCA 34 (24 April 2008)

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE

                           Criminal Application No. CLCLB-075-07
         (High Court Criminal Appeal No. 00002 of 2007)

In the matter between:

BERNARD MFUNDISI                                             1st Appellant
PATRICK MUCHENJE                                             2nd Appellant
DENNIS A. MOYO                                                3rd Appellant

v.

THE STATE                                                              Respondent

1st Appellant (in person)
2nd Appellant (in person)
3rd Appellant (in person)
Mr. K. Modie for the Respondent


J U D G M E N T


 CORAM:   McNALLY, J.A.
RAMODIBEDI, J.A.
                  TWUM, J.A.


McNALLY, J.A.:


THE INTERPRETATION INTO SHONA:


1.      
These three appellants in this court asked for and obtained the services of a Shona Court Interpreter, who was assisted when necessary by the regular court interpreter. They all understood English quite well. They also had a Shona interpreter at the relevant parts of the trial.
THE PLEAS

2.      
The case was complicated only in the sense that there were three appellants and five counts, and they were not all convicted on the same counts. Moreover, their pleas were different. Appellant No. 1 pleaded guilty on Counts 2, 3 and 5 and not guilty on Counts 1 and 4. He was convicted on Counts 2, 3, 4 and 5.
3.      
Appellant No. 2 pleaded not guilty on all counts and was convicted on Counts 2, 3, 4 and 5. But in his Notice of Appeal he abandoned the appeal against his convictions and persisted only with his appeals against the sentences.
4.      
Appellant No. 3 pleaded not guilty on all counts and was convicted on counts 1, 2, 4 and 5. At the hearing he too abandoned his appeals against his convictions and persisted only with his appeals against the sentences.
5.      
Appellant No. 1 complicated matters further by informing this Court that he had not pleaded guilty at all, as recorded, but had pleaded not guilty on all counts. His explanation was patently false. The trial magistrate had meticulously asked each individual appellant on each count how he pleaded, guilty or not guilty. Their answers were recorded. It is clear that Appellant No. 1 knows enough English to know the difference between “guilty” and “not guilty.” His answer in each case was that he understood the charge and pleaded not guilty (on counts 1 and 4) and guilty (on counts 2, 3 and 5). At the end of the pleas, the magistrate recorded how he had entered the pleas and recorded that Appellant No. 1 had pleaded guilty on counts 2, 3 and 5. After that the prosecutor said “I am not ready with the facts in respect of accused 1 on the counts (on which) he has pleaded guilty …” It is recorded that all this took place “… with Shona interpreter David Hunda”.
6.      
Despite this, we have satisfied ourselves that his conviction on the four counts was justified on the facts, as I will elaborate later.
THE ALLEGATIONS AGAINST THE APPELLANTS
7.      
All five offences took place on the same day, 30th September 2005. The robbery involved in Count 1 took place at one premises. The robbery in Count 2 and the rape (Count 3) both took place at another premises, and the possession of a revolver (Count 4) and the ammunition (Count 5) took place at both premises. The criminals involved were six (6) in number, of whom only three were captured.

IDENTIFICATION
8.      
On count 1, the only person identified was Appellant No. 3, and he was identified by a young girl of 12 years of age. He was not identified by means of an identity parade. This, of course, weakens any identification, but nonetheless her identification was impressive. She had no difficult in conceding that she did not recognize Appellants 1 and 2. She was very sure of Appellant 3, who was the only one convicted.
9.      
Her identification was strongly corroborated by the fact that some of the property taken from the house where she was visiting was later found in the house which, when later searched, revealed not only those goods, but also Appellant 3’s passport. The stolen property was identified both by this witness and by PW2. And finally, of course, Appellant 3 at the hearing before us, withdrew his appeal against his convictions.
10. On Count 2, the second robbery, all three Appellants were convicted. In this count one of the complainants was knifed in the knee. The witness who was gang-raped during this robbery (PW3) identified these three appellants very positively. She caused Appellant No. 3 to be acquitted on the rape charge because she said he was in the other room while his colleagues were raping her. She identified Appellant No. 1 as the only man who used a condom, and the used condom was later found on the floor. She identified No. 2 and he unwittingly confirmed this in cross-examination by saying “the person I raped urinated on herself.”
11.     
PW4 identified all three appellants, though as with the other witnesses she did not do so after an identity parade. She particularly identified Appellant No. 2 as the apparent leader of the gang.
12.     
PW5, the man who was stabbed with a knife, hit on the head with a gun, threatened with a gun and tied up, also identified the three men, and recognized them as Zezurus. He also identified the stolen property recovered at the house of Appellant No. 3. He particularly recognized Appellant No. 2 as the man who stabbed him. Other witnesses identified other property as coming from the other house robbed that night.
13.     
As in the case of all the counts, the identification of all the parties is confirmed by the events which followed almost immediately after the crimes. The police interrupted the criminals in the second robbery, who fled leaving most of the property behind. They followed the footprints which led to a house where they found the stolen property from both houses. There was a shoot-out, after which the criminals ran away. The police saw that one of the escapees had been shot, because there was blood in the footprints they were following. After a while they came across Appellant No. 1 with a deep wound on his leg. He could no longer run. They arrested him, and cleverly laid an ambush. After a while, two other persons came quietly calling gBernardh ? the name of the first appellant. When arrested, the one turned out to be Appellant No. 3, the one whose passport had been found in the house with the stolen property. The other was appellant No. 2.
14.     
It is unfortunate that no medical evidence was led to show that Appellant No. 1fs wound was indeed a gunshot wound. But in all the circumstances it clearly must have been. These events link the three appellants inescapably to the events at Plot 2078 Lenganeng ward, Tlokweng.
15.     
The identifications were thus completely corroborated. Taken together with abandonment of the appeals against conviction by appellants 2 and 3, all their convictions are confirmed.
CORROBORATION ON COUNT 3 (RAPE)
16.     
It has been held – Ntharo v. The State Criminal Appeal 21/2001 (C.A.) (apparently and surprisingly not reported) that corroboration is not strictly required. The reason is that the “rule” requiring corroboration is not a rule of law but merely a rule of practice. See also the High Court decision in Mbayi v. The State [1989] BLR 527 at 541G. Evidence of complaint is not corroboration. See generally R. v. Turnbull & Anor. (1976) 3 ALL ER 549 (CA).
17.     
Be that as it may, I am satisfied there was ample corroboration in this case. The medical report, prepared at 1.20 a.m. in the morning after the rape which occurred at about 8 p.m. on 30 September, while not proving rape, proved sexual penetration a few hours before the examination. PW4 saw the complainantfs zip torn and her panties absent, although she did not see the rape. PW5 saw the used condom and the panties on the floor within minutes of the rape. All the three appellants were proved to be robbing the premises at the time of the rape. The complaint was made immediately.
SENTENCES

18.     
Appellant No. 1 was sentenced as follows:
On Count 2 - 12 years’ imprisonment w. e .f. 1.10.2005.
On Count 3 – 12 years’ imprisonment w. e .f. 1.10.2005.
                  On Count 4 – P250 or i. d. p. 6 months to run consecutively.
                  On Count 5 – P250 or i. d. p. 6 months, to run consecutively with other prison sentences but concurrently with the                                            sentence on count 4.
19.      There are some questionable features involved in these sentences. The first is the 12-year sentence for rape on count 3. The learned Judge said:
g In terms of Section 142 (5) of the Penal Code the sentences (i.e. of Appellants 1 and 2) shall run consecutively to those imposed on Count 2 above. The sentences shall, however, be reckoned from 1stOctober 2005.h



20.     
Those two statements are, at first glance, contradictory. The first says that the sentences are to run consecutively. The second might imply that they are to run concurrently. In my view, the only proper interpretation is that the first statement is correct. On the date the sentence was passed (2 Oct. 2007) section 142 (5) made it mandatory that these sentences should run consecutively. It was only in January 2008 that this court handed down three judgments declaring that s 142 (5) was unconstitutional and in violation of section 7 (1) of the Constitution of Botswana. These cases were:
Bashi Matlho v. The State (a Full Bench decision) Criminal Appeal 019-07 Kashe Kabushu Thamae v. Director of Public Prosecutions CLCLB 053-07, HC Criminal Trial F16-02.
         Badisa Moatshe v. The State CLCLB-073-07.
21.     
I am satisfied therefore, that His Lordship intended these two sentences to run consecutively, resulting in a combined effective sentence of 24 years, excluding the sentences on counts 4 and 5.
22.     
The second problem I have is with the sentences on counts 4 and 5. In terms of the Arms and Ammunition Act Cap. 24:01, s. 9 (4), anyone convicted on either of these counts gshall be liable to a fine not exceeding P250.h There is no mention of an alternative of imprisonment, and it is trite that in such cases an alternative of imprisonment may not be imposed. In the result the alternative of imprisonment must, in the case of all three appellants, be struck out.
23.     
In the result the effective punishment imposed on the first appellant was 24 years imprisonment plus a fine of P500.
24.     
Appellant No. 2 was sentenced as follows:
On Count 2 – 12 years’ imprisonment w. e. f.
                  1.10.2005.
On Count 3 - 12 years’ imprisonment w. e. f.
                  1.10.2005.
On Count 4 – P250 or i. d. p. six months to run
consecutively.
On Count 5 – P250 or i. d. p. six months to run
consecutively with other prison
sentences but concurrently with the
sentence on count 4.
25.     
Again I have the same problems as I had in respect of the first appellant. But the learned judge made some remarks which satisfy me that my interpretation of what he meant to say was correct. He said:
gThe sentences shall be computed from 1 October 2005 being the date they were first taken into custody. For Accused No. 3 this sentence shall run concurrently with the sentence in Count 1 above.h
        
26.     
Appellant No. 3 was the only one not convicted on the rape charge (Count 3). Clearly the judge was ordering his sentences on the two robberies to run concurrently, which he was perfectly entitled to do. It is clear also that he was following what he perceived to be the law in respect of the other two when he ordered their sentences to run consecutively.
27.     
There is the same problem in respect of Counts 4 and 5 as I have dealt with in para 22 (supra). In the result the effective punishment imposed on the second appellant was 24 years imprisonment plus a fine of P500.
28.     
Appellant No. 3 was sentenced as follows:
On count 1 - 12 years’ imprisonment w. e. f.
                  1.10.2005.
On count 2 - 12 years’ imprisonment w. e. f.
                1.10.2005.
                  On Count 4 – P250 or i. d. p. six months.
                  On Count 5 – P250 or i. d. p. six months to run
                  concurrently with the sentence on count 4.

29.     
Following the same reasoning as I have in the two previous cases, his effective sentence is 12 years imprisonment plus a fine of P500.
         
30.     
To recapitulate, and ignoring for the moment Counts 4 and 5, the position is that each of the three appellants has been sentenced to two of the three mandatory sentence charges. Effectively, two of the three have been sentenced to 24 years imprisonment and the third to only 12 years imprisonment. In the case of the first two, they have been sentenced on a wrong basis (though it was through no fault of the judge because this courtfs ruling came months after he imposed what he thought were the proper sentences).
31.     
Nonetheless, in the light of the unwitting misdirection, this court is at large to reconsider the effective sentence on Appellants 1 and 2. We cannot say the same about Appellant No. 3. Indeed, I think he was fortunate that the judge ordered the whole of the sentence on the second count to run concurrently with the sentence on the first count.
32.     
Appellants 2 and 3, in my view, deserve a heavier sentence than Appellant No. 3. I say this for two reasons. First, one of their offences was a particularly unpleasant gang rape. Second, I have said that the third appellant got off lightly. I see no reason to make the same mistake for the sake of uniformity.
33.     
In my view, now that the obstacle to concurrent sentences as provided for by s 142 (5) of the Penal Code has been removed by the cases to which I have referred, the sentences should be ordered to run partly, but not wholly, concurrently. The guidelines in the fairly similar case of MATLHO (supra) suggest that a maximum of 20 years is not inappropriate.
34.     
Making a small gesture in the direction of uniformity, but declining to equate a rape and a robbery with two robberies, I would therefore order that six years of the sentence for rape in the case of Appellants 1 and 2 should run concurrently with the sentence for robbery. That would reduce their effective sentences on these two counts to 18 years imprisonment. I would dismiss the appeal against the sentences on Counts 1 and 2 (both robberies) in the case of Appellant No. 3 and confirm his effective sentence of 12 years imprisonment.
35.     
I turn, finally, to the sentence on Counts 4 and 5. the same sentence was imposed on all three appellants. As I have indicated, it was an incompetent sentence, and the alternative of imprisonment must be struck out. However, had the learned judge been aware of his error, I think he would have imposed a fine of P250 in respect of the two counts taken together, and I will amend the sentences accordingly.
36.     
Accordingly I make the following order:
1.      
The appeals against conviction are dismissed.
2.      
The appeals of all three appellants against sentence are allowed to a limited extent; the sentences are set aside and replaced as follows:
(a)     
APPELLANT NO. 1 – BERNARD MFUNDISI
On Count 2 – The appellant is sentenced
to12 years imprisonment, the
sentence to run from 1 October
2005.
On Count 3 - The appellant is sentenced
to 12 years imprisonment, six years of which are to run concurrently with the sentence on Count 2. The total effective sentence on counts 2 and 3 is therefore 18 years imprisonment.

                                    
On Counts 4 and 5 taken together - the