---

IN THE COURT OF
APPEAL FOR THE REPUBLIC OF

BOTSWANA HELD AT
GABORONE

COURT
OF APPEAL CRIMINAL APPEAL NO. CLCGB-053-12

HIGH
COURT CRIMINAL TRIAL NO. CTHFT-000088-09

DATE:
01 FEBRUARY 2013

In the matter
between:

Mochona
Samuel……………………………………………….Appellant

And

The
State……………………………………………………..Respondent

Mr Attorney O.
Kambai for the Appellant

Ms Attorney N.
Obonye for the Respondent

JUDGMENT

CORAM: KIRBY JP

LEGWAILA JA LORD

HAMILTON JA

LEGWAILA JA

1. The appellant,
Mochona Samuel, was charged and convicted of the offences of rape
contrary to section 141 as read with section
142 and murder contrary
to section 202, of the Penal Code (Cap 08:01) of the Laws of
Botswana. He pleaded guilty to both charges.
Extenuating
circumstances having been found, the appellant was sentenced to 30
years imprisonment for murder and 12 years imprisonment
for the
offence of rape. The sentences were ordered to run concurrently. He
has appealed against the sentence of 30 years for murder,
his
contention being that:

7t]he court a quo in
exercising its discretion, unjustifiably, and in a radical departure,
imposed an excessive sentence which is
not within the sentencing
range provided by the Court of Appeal in different cases for similar
or more brutal offences”.

2. The appellant is
not challenging the sentence of 12 years for rape which was ordered
to run concurrently with the sentence for
murder.

3. Counsel for the
appellant passionately sought to convince the court that the sentence
of 30 years was out of the range of sentences
which this court
imposed in the past. He pleaded in his heads of argument –

“On the whole,
the question of what appropriate sentence to impose has been left to
judicial precedent and guidance of the
Court of Appeal in different
cases that came before it. The effect of the guidance of the Court of
Appeal has been to achieve uniformity
of sentencing in offences that
were committed under similar circumstances. ”

4. Counsel cited
several judgments of this court including the case of NTESANG v. THE
STATE [2007] 1 BLR 387 CA which recommended a sentence in the region
of 15-17 years imprisonment, for passion killings; BOGOSINYANA v. THE
STATE [2006] BWCA 7; [2006] 1 BLR 206 CA at 208 for the pronouncement that
“punishment should fit the offender as well as the crime while
at the same time safeguarding
the interests of society”; and
the reduction of 30 years imprisonment to 25 years in the case of
PONATSHEGO v. THE STATE
[2006] 2 BLR 466 CA where after a thwarted
break-in, the appellant went away and fetched a firearm with which he
killed a pursuing security officer.

5. The thrust of
Counsel for the appellant’s arguments was to persuade the court
that the sentence of 30 years for the appellant
was out of the range
of sentences normally approved by this court.

6. The general
principle governing sentencing was reaffirmed by this court in the
case of DIOKA v. THE STATE [2007] 2 BLR 691 CA at 695 where it held –

“It has been
stated over and over, and I repeat it again, that sentencing lies
pre-eminently within the discretion of the
trial judge and a court on
appeal should not interfere with the trial court’s exercise of
that discretion unless the judge
has applied incorrect principles in
his sentencing; or has misdirected himself in a material respect; or
unless the sentence imposed
by him is manifestly excessive in the
sense that it varies substantially from the sentence that the Court
of Appeal would have
imposed had it been the court of first
instance.” See also, Mudangule v. The State [19861 BLR 265 CA
at 266 GH; Magubane
v.

The State [19911 BLR
286 CA at 290 C-E; Ramaloko v. The State [19831 BLR 204 CA at 206 H.

7. This statement on
sentencing is consistent with Section 13 (5) of the Court of Appeal
Act (Cap 04:01) which provides –

“On 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. ”

8. We therefore have
to decide whether the sentence imposed by the court a quo is one
which warrants interference by this court.

9. In sentencing the
appellant, Mr. Justice Phumaphi was convinced that that was a
sentence appropriate for the offence committed
by the appellant. He
believed that the seriousness of the offence justified the severity
of the punishment he imposed. This is
what he said in explaining the
sentence:-

“9. The
accused has been convicted of the most serious offence of them all in
that he has terminated the most important gift
to mankind which is
life, the sanctity of which cannot be over emphasised. However, in
sentencing the accused I must bear in mind
all that has been
eloquently urged on me by his learned counsel, in particular that he
has shown contrition by cooperating with
the police right from the
moment of his arrest and pleaded guilty before this court. He at no
time attempted to distance himself
from the crime despite the fact
that he was the only eye witness to the commission of the crime.

10. Having said all
that, I must, however, counterpoise it against the aggravating
factors demonstrated by the prosecution in this
case. The accused
robbed the deceased of P50.00 which was the only cash she had to
protect herself from being stabbed with the
knife the accused used to
subdue her resistance. The robbery was clearly motivated by greed on
the part of the accused. The other
aggravating factor was the rape
committed on the deceased whose age was almost double that of the
accused at 70 years, therefore
old enough to be the deceased’s
mother. The rape must have come to the deceased with an extraordinary
trauma bearing in mind
the accompanying insult of being violated by
someone young enough to be her son at knife point. As if the rape was
not enough,
he went on to murder her by strangulation which as can be
expected did not terminate her life instantly, but slowly squeezed it

out of her. She must have experienced the height of trauma to see
herself slowly expiring.

11. Bearing all
these in mind as well as the fact that the accused is relatively
young and therefore deserves some measure of sympathy
to afford him
the opportunity to learn from his mistake, I consider that the
accused deserves a long period of incarceration as
opposed to giving
him the ultimate sentence which I am at large to impose in these
circumstances (sic ).

12. I am alive to a
plethora of authorities from the Court of Appeal to the effect that
there should be uniformity in sentences
for similar offences, but
with greatest respect, I do not believe that the Honourable Court
intended to suggest that all murders
are the same. It behoves me in
this particular instance to view the circumstance of the case through
the prism of justice if nothing
else and pass a sentence that will
suit the offence without looking over my shoulder.” (Pp 7-9 of
the cyclostyled judgment,
p79-80 of the record)

10. I quoted the
full sentencing explanation of Mr. Justice Phumaphi to show that the
sentence was the product of serious consideration.
Therefore had it
not been for an aspect that does not appear to tally with the facts
of the case, I would have considered the sentence
unassailable. This
judgment should not be taken as endorsing Phumaphi J’s
statement that he was still “at large”
to impose the
ultimate sentence having found extenuating circumstances. That is not
a question which is settled. Section 203 (2)
of the Penal Code
provides that when extenuating circumstances are found, “the
Court may impose any sentence other than death”.
Those words
may well be held to mean that a sentence of death is no longer
competent. There are cases tending both ways. I favour
the
interpretation that the death penalty is no longer available, because
both extenuating and aggravating factors are weighed
before an
overall finding on the presence of extenuating circumstances is made.
But that is not a matter which needs to be settled
in this case,
because the death penalty was not in fact imposed.

11. This is one of
the worst cases imaginable. Rape is bad enough on its own, but to go
on to murder or hang the defenceless victim,
who in this case was an
elderly lady, and then go home to sleep, as if nothing happened,
suggests inhumanity of the worst order.

12. Turning now to
the sentence imposed by the judge a quo, I made reference to some
aspect of the judge’s explanation of
the sentence that did not
appear to tally with the facts of the case. The learned judge stated-

“The accused
first robbed the deceased of P50.00 which was the only cash she had
to protect herself from being stabbed with
the knife that the accused
used to subdue her resistance. ”

13. I have not found
evidence of robbery on the record. The accused was convicted on his
plea of guilty. A “SUMMARY OF AGREED
FACTS” was submitted
which in respect of the P50.00 stated –

“4. The
accused however did not go to his girlfriend’s place but
instead went back to the deceased’s compound.
Upon arrival, the
accused asked the deceased to give him some money. In reply the
deceased said that she did not have any money
except for the Fifty
Pula which she gave to the accused. ”

14. This is
consistent with appellant’s judicially recorded statement
(confession). Only the appellant could give evidence
as to how he got
the P50.00. It may well be that the P50.00 was obtained under threat
but there is no evidence to that effect.
It was not accurate
therefore for the court a quo to rule that there was robbery, let
alone with the threat of a knife.

15. The court a quo
treated the alleged robbery as one of the aggravating factors.
Therefore it must have counted in the determination
of the level of
sentence. Section 292 (2) of the Penal Code (Cap 08:01) provides for
a minimum sentence of 10 years for robbery
by a person armed with a
dangerous or offensive weapon. Therefore the court’s finding
that there was a robbery with the use
of a knife must have had a
serious impact on the level of sentence.

16. The next
question is, if we discount robbery, what should be the appropriate
sentence? In the case of NTESANG v. THE STATE
[2007] 1 BLR 387 CA at
390, this Court made the

following statement
of principle –

“One of the
fundamental principles of justice in sentencing is that the court
should strive to impose the right sentence for
the particular
circumstances of the case. ”

17. This is
obviously an overriding principle which any sentencer should bear in
mind when grappling with the difficult task of
deciding the level of
sentence. But the statement does not and cannot be the yardstick for
measuring the actual number of years
to impose. The sentencer, in
making his value judgment, must nevertheless satisfy himself/herself
that the ultimate sentence accords
with the principle enunciated.
Lord Coulsfield JA, the author of the Ntesang judgment, in advocating
uniformity in sentencing clearly
recognised that one sentence could
not be a standard by which all murder cases should be decided. He
suggested, that it should
be done “whenever this can reasonably
be done”. He continued, “[t]here is, inevitably, a degree
of tension between
these principles and it is the duty of the court
to try to reach a just sentence by giving each the weight which seems
proper in
the particular case.” To that extent, Mr. Justice
Phumaphi is correct that this Court did not suggest that, “all
murders
are the same”.

18. Counsel for the
appellant made reference to the decision of this Court in MICHAEL
MOLEFHE and ANOTHER v. THE STATE (CA No. CLCLB-028-08)
where in the
course of the judgment, it was said, “murder however is murder.
It is ultimately a serious offence”. He
then argued in his
heads of argument –

“It is
submitted that this is the correct approach when dealing with
offences of murder, and that they should be treated as
such. With all
due respect, it would be unfair to distinguish between murders by
giving an impression (sic) those who murder under
the so-called
passion killing circumstances will get a somewhat differential
treatment to those who murder for instance during
robbery. ”

19. In the first
place, this latter statement cannot be based on Mr. Justice McNally’s
statement in the Molefhe case. That
is taking that statement out of
context. Indeed the range of sentences suggested by Lord Coulsfield
JA in the Ntesang case was,
while suggesting uniformity, conceding
that even in passion killings there could not be the same sentence.
Hence the suggestion
of a “region of 15 years to 17 years
subject of course to adjustment upwards or downwards in the light of
any particularly
significant circumstances in the case before him.”.
As I shall show later, another judgment of this Court suggested a
different
range of sentences for non-passion killing cases. Certainly
the expression “murder however is murder” did not mean
that one sentence should fit all murders. Each case is judged
according to its merits.

20. In the case of
PONATSHEGO v. THE STATE [2006] 2 BLR 464 CA, this Court considered an
effective sentence of 30 years for an appellant who was found guilty
of 6 counts ranging from housebreaking
through burglary, rape, armed
robbery to murder. The facts on the murder charge were that he had
broken into the office of the
manageress using a crowbar but ran away
when the police arrived. He returned later armed with a shotgun and
committed robbery.
He then ran away, pursued by two security
officers. He turned and fired at the officers. They were both hit and
one of them died.
The court felt that 20 years imprisonment for
murder was not excessive. But when considering the 20 years plus the
mandatory 10
year sentence for robbery making an effective sentence
of 30 years Grosskopf JA ruled

“That in my
view becomes such a harsh sentence that it requires some alleviation.
The Court therefore intends to reduce the
sentence of 20 years to one
of 15 years imprisonment so as to make the effective sentence on the
appellant to 25 years imprisonment.
” (p469)

21. The feature that
distinguishes this case from the Ponatshego case is that in this
case, the victim was a defenceless 70 year
old woman who was raped
before she was murdered by hanging. The hanging was not only carried
out with a view to murdering the victim
but also to conceal the fact
of murder by making it look like she committed suicide. I cannot
imagine any crime worse than that.
However, in the case of JACKSON v.
THE STATE [2007] 2 BLR 725 CA at 730, this Court per Zietsman JA came
up with further guidance on sentencing. The court was dealing with
another heinous crime
in which the appellant was convicted of murder,
armed robbery, store breaking and theft. Commenting on the cruelty of
the murder,
the learned judge said of the deceased –

“The guard was
brutally murdered. His skull was crushed into multiple pieces. His
cheekbone and four ribs were also fractured.
The motive behind the
assault was greed, and the person murdered was an entirely innocent
person who had caused no harm to the
appellant or to his associates.
” (p729)

22. After expressing
these sentiments, the learned judge made his recommendation on
sentencing in murder cases other than the passion
killings dealt with
by the Ntesang case.

“The usual or
average sentences passed for murder in this country seem to be in the
region of 15 – 20 years imprisonment.
As stated in the Ntesang case
(supra) average sentences are subject to adjustment upwards or
downwards depending upon the circumstances
of each particular case.
Twenty five years’ imprisonment will be imposed only where
there are severe aggravating circumstances.
A sentence in excess of
25 years’ imprisonment may be merited only in very rare and
exceptional cases. ”

23. As in the
Ntesang case, it will be noticed that again the court did not shut
the door for sentences that may fall outside the
region suggested. It
has only set the terms for exceeding the parameters suggested. The
remaining question for this case is whether
it is one with severe
aggravating circumstances or one rated to be very rare and
exceptional.

24. We cannot
predict future atrocities. Therefore, it is not safe to treat this
case as the worst we shall ever be confronted with.
We should
therefore accept that we have not seen the ultimate worst case.

25. Before
proceeding to deal with the level of sentence, I need to deal with
the question of drunkenness which arose during the
trial. In his
judicially recorded statement treated as a confession, the appellant
said, “ke ne ke nole fa ke bolaya Mma
Nurse, tota ga ke itse
gore go diragetseng”. (I was drunk when I killed Mma Nurse,
frankly I do not know what happened).
The statement “I do not
know what happened” should not be taken literally. He knew what
happened because he gave a
full account of what happened in his
judicially recorded statement. The judge a quo also tested his plea
of guilty by taking him
step by step through the elements of the
crime and he confirmed what happened. (See pp 15-17 of the record).
What he meant was
that he did not know why he killed the deceased. He
is of course blaming it on drunkenness.

26. It is clear that
the prosecutor did not believe that part of the judicially recorded
statement that alleged that the appellant
was drunk. Therefore PW1,
Margaret Basupile, the appellant’s girlfriend, was called and
gave evidence that suggested that
the appellant could not have been
drunk. The appellant and herself had left home before sunrise and
returned at 1800 hours. During
that period, the appellant had not
taken alcohol. After their return home, the appellant did not take
any alcohol because there
was none where they stayed.

27. After eating his
evening meal, the appellant visited a neighbour. “[H]e returned
late at night”. According to PW1,
“he was not drunk”
when he returned. (Pp 27-28). It will be recalled that in his
statement the appellant said that
after hanging the deceased, he went
home to sleep. The evidence of PW1 who lived with the appellant
clearly suggested that

the appellant could
not have been drunk when he killed the deceased.

28. In her address
to the court, Ms. Moatswi for the prosecution relied on PWl’s
evidence and asserted –

“It is
submitted that the evidence of the State and which evidence was
tested through cross-examination is that on the day
in question, the
convict spent the day at the fields in the company of his girlfriend
Margaret Osupile and that whilst at the fields
which was until 6 pm
he did not take any alcoholic beverages. It was further Margaret
Osupile’s evidence that after their
arrival home the convict
took a bath, had supper and thereafter left their home to return late
at night. The witness further told
the court that when the convict
returned home he did not appear drunk. This witness was adamant that
the convict was not drunk
and testified that she had been his lover
since 2006 and could easily tell when he was intoxicated. This
witness stood her ground
that the convict was not drunk on the day in
question.” (p64-65 of the record). Counsel for the State
concluded –

“We urge the
court to make a finding that the convict was not drunk on the day in
question. Assuming that the court makes
a finding that the convict
was drunk on the day in question, it is submitted that that would not
be the end of the matter but that
the court would then have to
consider the degree of intoxication.”

29. The court a quo,
correctly in my view, allowed evidence to be led by the State to
contradict the alleged intoxication referred
to in the judicially
recorded statement. The defence was also allowed to cross-examine PW1
on the same question of intoxication
with a view to challenging that
evidence. However, during his ruling on extenuating circumstances,
the judge a quo made a point
which the prosecutor had not been given
the opportunity to address. This is what the judge a quo said –

“6. If a
confession statement is taken as part of the prosecution evidence, it
must be taken as a whole unless the prosecution
in admitting the
statement made it very clear that they were only admitting part of it
and thus giving the accused the opportunity
to deal with what was not
acceptable to the prosecution. The cardinal rule is that if the
prosecution leads evidence which conflicts
in some respects, the
version more favourable to an accused is the one to be accepted by
the court.

7. In the
circumstances I come to the conclusion that the prosecution having
tendered a confession statement in which the accused
states that he
was drunk, it cannot be availed by leading evidence to the contrary.
Therefore I find on the strength of the confession
statement that the
accused was drunk. ”

30. The judge a quo
reduced to nought the evidence he allowed to be led by the State,
which the defence was unable to discredit.
Unfortunately, the judge a
quo did not cite any authority for his ruling. It is therefore
important to examine the validity of
that ruling.

31. The starting
point is the definition of “confession” which is found in
the South African case of REX v. BECKER
1929 AD 167 at 171 which is,
“an unequivocal acknowledgment (by the accused) of his guilt,
the equivalent of a plea of guilty before
a court of law”.
Commenting on Becker’s definition of confession, Lansdown and
Campbell in their book, South African
Criminal Law and Procedure
volume V (Criminal Procedure and Evidence) explained that “to
be a confession there must be an
admission of every component element
of the accused’s guilt”. (p864). They went on to explain
further –

“If all the
essential elements of the offence are admitted, the presence of an
exculpatory intention will not prevent the
statement from being a
confession. On the other hand, a statement falling short of admitting
all the elements and which is purely
exculpatory in intention is not
a confession, however prejudicial its effect.” (p 866).

32. From the record,
it is clear that the confession statement contained all the elements
necessary to qualify as a confession.
But after admitting all those
elements, the appellant added a statement of a mitigatory nature. It
is that statement that the prosecution
sought to disprove by leading
evidence through PW1. It is not unusual for someone confessing to a
crime to add material intended
to reduce blameworthiness.

33. It appears to
me, with respect, that the court a quo erred in treating a confession
as evidence given by the State. “[Ilf
the prosecution leads
evidence which conflicts in some aspects the version more favourable
to an accused is the one to be accepted
by the court”. A
confession by an accused is the evidence of that accused given to the
judicial officer who recorded it for
purposes of the trial. It is
brought in by the prosecution because it was tendered by the accused
before an agent of the State.
The State is entitled to rely on it
because it confesses to the crime with which the accused is charged
by the State. If it is
admissible and it is admitted, it is the
evidence of the accused tendered by the State and which the State has
an interest in holding
him to. But the State is not precluded from
challenging the accused on an aspect of that confession which it
feels the confessor
put in in order to lessen his guilt or
blameworthiness. The authorities make it clear that the only
confession that the State may
not lead evidence on, or cross-examine
the accused on is an inadmissible confession. See R. v. GIBIXEGU &
ANOTHER 1959 (4)
266, 269-271 and other cases cited therein.

34. In the case of
Michael Molefe and Another v. The State op.cit. this court per
McNally JA dealt with the issue as follows:

“I reject
counsel’s submission that once an accused person’s
statement or confession is admitted in evidence the
court is bound to
accept it as true in every detail. The court may accept the
admissions and reject the explanations when they
are patently false
and in conflict with others acceptable evidence or with reason. ”

In this case the
evidence of PW1 suggested that the appellant’s claim that he
was drunk when he committed the offence was
patently false.

35. Hoffman and
Zeffert in The South African Law of Evidence, 4th edition,
Butterworths 1988 dealing with the question – Who May
be
cross-examined? answer as follows at p 456 –

“The general
rule is that any witness who has been sworn, and called, and who has
given evidence in chief is liable to cross
examination.”

36. In this case,
the State tendered evidence through its own witness, PW1, to disprove
a statement in the appellant’s confession.
If the appellant
himself could have been cross- examined by the State on the same
confession, there is no reason why a state witness
could not give
evidence to contradict a statement in the confession.

37. Turning to the
issue of sentence in my view, the sentence of 30 years should be
reduced for the following reasons:

(a) In imposing the
sentence of 30 years, the judge a quo was erroneously labouring under
the impression that the appellant had
also robbed the deceased of
P50.00 with the threat of a knife if she did not comply. That has
been shown not to tally with the
facts of the case. There was also no
charge of robbery, let alone armed robbery. Yet in making that
finding, the judge must have
had in mind the mandatory sentence of
not less than 10 years. (See section 292 (2) of the Penal Code).

(b) Counsel for the
State conceded that reference to robbery was a misdirection and
suggested that in the absence of the aggravating
features of robbery,
the sentence should be reduced from 30 years to 25 years. That was a
constructive contribution by counsel
for the State.

(c) The court a quo
having disallowed the evidence suggesting that the appellant could
not have been drunk, he should be given the
benefit of the doubt.

38. In the result:

(a) The appeal
against the sentence of 30 years imprisonment for murder is allowed;

(b) The sentence of
30 years imprisonment is set aside;

(c) The appellant is
sentenced to 25 years imprisonment for the offence of murder;

(d) The sentence of
12 years for rape which was not appealed against is confirmed.

(e) The two
sentences shall run concurrently and shall be reckoned from the date
the appellant was first incarcerated.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 1st DAY OF
FEBRUARY 2013.

E. W. M. J.
LEGWAILA JUSTICE OF APPEAL

I agree

I.S. KIRBY JUDGE
PRESIDENT

I agree

LORD HAMILTON
JUSTICE OF APPEAL

---