---

IN THE
COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT GABORONE

COURT OF
APPEAL CASE NO. CLCGB-072-12

HIGH
COURT CRIMINAL APPEAL NO. CLCHLB-000075-09

In
the Matter Between:

MOTHUSI
MORAKE
……………………………………………………………………………………..APPELLANT

and

 

Mr Appellant
in Person

Ms Attorney
T. Makolo for the Respondent 

JUDGMENT

CORAM: 
Kirby J.P.

Twum
J.A.

Lord
Abernethy J.A.

Dr
S. TWUM JA:

1. This is an appeal from
the judgment of Lesetedi J. sitting at the High Court, Lobatse. 
It was delivered on 15^th July 2010.  He confirmed the
judgment of the Magistrate who tried and convicted the appellant on
two counts of armed robbery
but varied the sentences imposed on the
appellant as will hereinafter appear.

2. The appellant was
charged, tried and convicted by the Subordinate Court, Gaborone on
two counts of armed robbery contrary to
section 191 as read with
section 192(2) of the Penal Code.  The robberies were so
brazenly carried out that in cold print
they are almost
unbelievable.  One small correction needs to be noted.
Originally 3 counts were preferred against the appellant. 
Count
1 was then withdrawn and counts 2 and 3 remained.  There was no
explicit amendment to the numbering of the remaining
counts 2 and 3. 
In the result the trial proceeded and count 2 notionally became count
1 and count 3 became count 2.

In the now first count, the
appellant is alleged to have stopped the driver of a vehicle used for
distributing gas cylinders to
customers and seized the sum of
P1375.00 from his pocket under threat of using his knife to cause him
bodily harm if he resisted
him.  In the now second of these
counts, the appellant is alleged to have entered a chibuku depot at
Mogoditshane.  He
went to the counter where a container in which
the complainant in charge of the chibuku put the takings for the
day.  He dipped
his hand into the container and took away with
him the takings amounting to P350.00.  When the complainant
tried to stop him
he twisted her arm and drew a knife.

3. The learned trial
magistrate concluded that the complainant in either offence was a
credible witness and found the explanations
of the appellant false
beyond reasonable doubt.  He convicted him and sentenced him to
10 years of imprisonment on each count.

He
ordered that the sentences should run concurrently.

4. The appellant was
dissatisfied with his conviction and sentence and appealed against
them to the High Court, Lobatse.  The
appeal was heard by
Lesetedi J.  After he had heard arguments on the appellant’s
grounds against conviction, the learned
Judge asked him to satisfy
the court whether in the event of his appeal against conviction being
dismissed, it would not be appropriate
for the Court to consider
increasing his sentence in view of the fact that in his opinion the
trial magistrate misdirected himself
in ordering the two sentences to
run wholly concurrently.  The record shows that his Lordship
then adjourned the hearing for
a period of 14 days to give the
appellant opportunity to consider his response.

5. Upon resumption of the
hearing on the adjournment date the appellant, instead of a response
to the issue put to him by the learned
Judge, rather sought to
withdraw his appeal against conviction.  He then launched into a
plea of mitigation and prayed that
the Court should not increase the
sentence.

6.
In my view the appeal before His Lordship turned on two main issues:-

(a)
whether or not the trial magistrate misdirected himself by ordering
that the 10 year sentence on each count should run concurrently;
and

(b)
whether or not the learned Judge was entitled, indeed, bound to
correct any error made by the magistrate. This is because, sentencing

is primarily in the discretion of the trial court.

7. The learned Judge
examined the sentencing policies of the courts and came to the
conclusion that the trial magistrate had applied
a wrong principle as
distilled by the Courts from section 300 of the Criminal Procedure
and Evidence Act.  Accordingly, he
set aside the order that the
sentences of 10 years imprisonment for each of the two counts on
which the appellant had been convicted,
should run concurrently. 
In their stead, he ordered that the sentence for count (1) should run
concurrently with the first
7 years of the 10 – year sentence
for the second count, but that the last 3 years of the sentence for
the 2^nd count should run consecutively with the sentence
for the 1^st count.  This meant that the appellant
would serve an effective 13 years in the aggregate for the two
counts.

Appeal
to this Court

1. On or about 15^th
of August 2012, the appellant filed a Notice of Appeal against the
decision of Lesetedi J.  It is clear that he did not have
the
assistance of a lawyer to draft his grounds of appeal.  However,
it appears from pages 62 and 63 of the record that he
was appealing
against his sentence (page 62) and his conviction, (page 63).

2. On sentence the
appellant claimed that he only wished to have his sentence back-dated
by 3 months to take account of the period
he alleged, he was in
lawful pre-trial incarceration.  He complained

that Lesetedi J. did not
understand his appeal against sentence and instead, rather worsened
his plight by ordering the two sentences
to run partly concurrently
with each other and partly to run consecutively.

3. It is clear in this
jurisdiction that mission goals of the Judiciary are not only to
administer the law but to do substantial
justice.  The appellate
system is a necessary part for the realization of those mission
goals.  If a subordinate court
makes a mistake whether of law or
of fact, generally, one superior court or other, will have statutory
duty to correct that mistake.

4. Lesetedi J.  in his
said judgment quoted section 300 of the Criminal Procedure and
Evidence Act in extenso and explained
that in the application of the
section the courts have worked out 3 guiding policies:- 

(I) Where two or more offences are committed “in
pursuance of one fell design” then the court ought to order
such sentences
to run concurrently.

(ii) Where an accused is convicted of more than one
offence which are not part of a single transaction or are not in
pursuance of
one fell design, the sentences for those offences ought
not to be ordered to run concurrently.  Rather they should be
ordered
to run consecutively. 

(iii) Where upon two or more sentences being ordered to
run consecutively and the aggregate sentence would be so long as to
constitute
inhuman or degrading treatment, then to ameliorate the
hardship the court may order the sentences to run partly concurrently
and
partly consecutively.  See MOATSHE v. THE STATE, 2004 (1)
BLR page 1.

4. In the appellant’s
cases under discussion the offence which formed the subject of the
first count was committed on 29^th October 2006.  The
second offence was committed on 2^nd December 2006. 
The first offence had no connection to the second.  Indeed, the
location of the offences, the victims
and the quantum of the monies
stolen pursuant to the robberies were different.  Section

300 itself directs that in
the appellant’s situation his punishments, if they consisted of
imprisonment, should commence the
one after the expiration …
of the other, in such order as the court may direct unless, of
course, for good reason appearing
on the record, the court orders
such punishment to run concurrently.

5. One important matter
usually considered in the exercise of the court’s discretion is
whether or not the appellant had had
little or no brush with the
law.  In the appellant’s case he had a number of previous
convictions, one of which was
robbery which was committed in 2004,
barely two years earlier than the commission of the offences the
subject matter of the appeal. 
I am fully in agreement with the
order made by Lesetedi J.  He was right in setting aside the
sentences imposed by the trial
magistrate and substituting them with
the mixture of concurrent and consecutive sentences which left the
appellant serving an aggregate
sentence of 13 years.  In that
order, Lesetedi J. considered the triad of sentencing:- that the
sentence must fit the crime,
be fair to the accused and the interest
of society should equally be considered.  I am not persuaded
that the aggregate sentence
of 13 years would break the appellant as
he claimed.  I affirm the order of Lesetedi J., accordingly.

The
Appeal is dismissed.

DELIVERED
IN OPEN COURT AT GABORONE THIS 1st DAY FEBRUARY 2013

DR S. TWUM

JUSTICE OF
APPEAL

I agree

I.S KIRBY

JUDGE
PRESIDENT

I agree

LORD
ABERNETHY

JUSTICE OF
APPEAL

---