---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT GABORONE

COURT
OF APPEAL CRIMINAL APPLICATION NO. CLCGB-008-13

HIGH
COURT CRIMINAL COMMITTAL NO. CRHFT-000007-11

DATE:
26 FEBRUARY 2013

In the matter
between:

A….
M…………………………………………………………..APPLICANT

And

THE
STATE………………………………………………RESPONDENT

Applicant in
person

Ms Attorney O.
Majoto for the Respondent

RULING

KIRBY JP:

1. The applicant in
this case, although still young, has shown himself to be a menace to
society.

2. Over a nine month
period extending from May 2010 to February 2011, he and three other
youths, acting as a criminal gang, subjected
the people of Serowe to
a virtual reign of terror. At the time he was only seventeen years
old, and an unemployed school drop-out.

3. On 8th June 2011
the applicant was arraigned on no fewer than nine counts, all of
serious offences. There was one count of attempted
rape, three counts
of rape, and five counts of aggravated robbery. The rapes were
traumatic gang rapes. The facts of these nine
offences are all set
out in full in the judgment of Motswagole J. in the court below, and
I need not repeat them. They were committed
on different occasions
over an extended period, and would not normally qualify for
concurrency of sentences.

4. In the event, the
applicant pleaded guilty to all nine charges and expressed his
remorse.

5. Motswagole J. in
a very careful and thorough judgment on sentence considered the
contents of a Social Worker’s report on the
applicant, and recorded
all the relevant factors of the case, both mitigatory and in
aggravation. In the applicant’s favour were
his youth, his deprived
circumstances as an unemployed street-child, his remorse and his
pleas of guilty, his claim to have turned
to God, and the fact that
some of the stolen goods (though by no means all) had been recovered.
On the debit side, the offences
were prevalent, the rapes were gang
rapes and the robberies were violent. Society expected an appropriate
response to crimes of
this sort committed by criminal gangs.

6. The learned Judge
correctly concluded that for a series of offences such as these it
would be quite wrong to sentence the applicant
as a juvenile in terms
of the Children’s Act. He was described by the Social Worker as a
menace to society. I note also that although
he was described as a
first offender, some of the present offences were committed while he
was out on bail for others, which is
an aggravating feature.

7. The decision of
Motswagole J. was that the applicant should serve an effective
sentence of fourteen years imprisonment – ten
years for each of the
rapes, to run concurrently, and ten years for each of the robberies,
to run concurrently with each other,
and six years of the ten to run
concurrently with the rape sentences as well. For the attempted rape
he was given a three year
suspended sentence, and he was also given
credit for any period spent by him in custody while awaiting trial.

8. The sentences
were handed down on 24th November 2011, and it was only on 24th April
2012, well out of time, that the applicant
lodged this application to
appeal out of time against these sentences. To succeed, he must give
a proper explanation for his tardiness,
and must also show that he
has reasonable prospects of success on appeal. His explanation for
the lateness is that he was delayed
because the prison computers were
out of order. His grounds of appeal do not differ from the mitigating
factors argued in the court
below, and centre around his age and his
deprived upbringing.

9. Sentencing is, of
course, a matter primarily for the trial Judge, and a Court of Appeal
will not interfere unless the Judge has
made an error of fact or law
or unless the sentence is substantially different from the sentence
which the appeal court would have
imposed.

10. Nor is youth per
se an exceptional extenuating circumstances, so as to bring section
27(4) of the Criminal Procedure and Evidence
Act Cap 08:02 into play.
See KEBOSEKE vs THE STATE; SELEKA vs THE STATE (2008) 1 BLR 327 CA.

Youth may, however,
be one of the factors to be considered in reaching a conclusion as to
whether section 27(4) should be applied.
The circumstances in this
case were unusual, in that the imposition of the statutory minimum
sentence for each offence would have
resulted in an effective
sentence of 80 years imprisonment, which, for a juvenile offender,
would have deprived him effectively
of his whole productive life in
society. There can be no doubt that this would have been a total
sentence so disproportionate as
to render it cruel and inhuman in the
circumstances, and to have enabled the court, in the exercise of its
constitutional jurisdiction,
to substitute a lesser and more
appropriate sentence. See MOATSHE & ANOTHER

vs THE STATE (2003)
1 BLR 65; and MOATSHE vs THE STATE; MOTSHWARI vs THE STATE [2003] BWCA 20; (2004) BLR
1 CA.

This is what
Motswagoie J. did when he made the concurrency orders in question,
and he was correct to do so.

11. I consider that
the sentences imposed by the Judge a quo were entirely appropriate,
and that the applicant has no prospects
of success in a late appeal
against sentence.

Accordingly:

The application for
leave to appeal late is refused.

DELIVERED IN OPEN
COURT AT GABORONE THIS 26™ DAY OF FEBRUARY 2013.

I.S. KIRBY JUDGE
PRESIDENT

---