You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
2008 >>
[2008] BWCA 5
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
S v Rasefako (CLCLB02607) [2008] BWCA 5 (10 January 2008)
.RTF of original document
IN THE COURT OF APPEAL OF THE REPUBLIC OF
BOTSWANA HELD AT LOBATSE
CLCLB 026-07
In the matter of:
JOMO RASEFAKO
Appellant
vs.
THE STATE
Respondent
Mr. Dingake for the Appellant
Mr. A. C. Mubika for the Respondent
J U D G M E N T
P. H. Tebbutt, J.P.:
N.J. McNally, J.A.:
Dr. Seth Twum, J.A.:
TEBBUTT, J.P.:
The Applicant in this matter applied for leave to appeal to this Court. However, as all the facts were before it and the matter could
be decided on those facts, this Court heard the application as a substantive appeal.
The Appellant was convicted in a Magistrates’ Court of robbery and theft. He appeals now against his convictions and sentences.
The Appellant was represented by Counsel, Mr. Dingake, who took just two points.
On the robbery conviction, he contended that the charge was defectively framed.
The Appellant was charged with robbery in contravention of Section 291 of the Penal Code which provides that any person who when stealing
anything uses violence to any person in order to obtain the thing stolen or to prevent or to overcome resistance to its being stolen,
is guilty of the offence of robbery. The charge sheet states quite clearly that the Appellant who snatched a handbag from the complainant
and throttled her while doing so “immediately before stealing used actual violence” to the complainant. The only omission,
and this was the crux of Mr. Dingake’s contention, was that the charge sheet did not state that the Appellant used violence
to prevent or overcome resistance from the complainant to his taking her handbag. This provision, as shown by the use of the word
“or” in the section is an alternative to the use of violence to obtain the thing stolen and its omission did not therefore
render the charge sheet defective. In any event, there was no prejudice to the Appellant who knew what it was alleged he had done
and conducted his defence on that basis.
The Appellant was also convicted with having stolen certain items from the complainant’s handbag including an ATM card which
he used at an ATM machine to steal P3,065 from the complainant’s bank account. He does not challenge his conviction on this
count, but only appeals against his sentence on it. On the robbery count, the Appellant was sentenced to the mandatory minimum sentence
provided for in Section 292(2) of the Penal Code of 10 years imprisonment. On the theft count, he was sentenced to 3 years imprisonment
to run concurrently with the sentence on the robbery count. Mr. Dingake, and this was the second of his two points, submitted that
the sentence was shockingly excessive. There is no substance in this submission. It is the maximum sentence provided for in terms
of Section 271 of the Penal Code but having regard to the circumstances, including the amount stolen, it was warranted. In any event,
it is to run concurrently with the 10 years the Appellant will serve for the robbery.
The appeal is therefore dismissed and the convictions and sentences are confirmed.
Delivered in open Court at Lobatse this 10th day of January 2008.
----------------------
P. H. TEBBUTT
Judge President
----------------------
I agree
N.J. MCNALLY
Judge of Appeal
----------------------
I agree
DR. S. TWUM
Judge of Appeal
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2008/5.html
