Gorosang v S (CLCGB-095-12) [2013] BWCA 40 (1 February 2013)
IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA
HELD AT GABORONE
COURT
OF APPEAL CRIMINAL APPEAL NO. CLCGB-095-12
HIGH
COURT CRIMINAL TRIAL NO. CTFHT-000109-10
DATE:
01 FEBRUARY 2013
In the matter
between:
PHILLIP
GOROSANG…………………………………………………………APPELLANT
And
THE
STATE……………………………………………………………………RESPONDENT
Mr Attorney U.
Mack for the Appellant
Mr Attorney C.T.
Sechele for the Respondent
JUDGMENT
CORAM: KIRBY J.P.
LORD ABERNETHY
J.A.
LESETEDI J.A.
KIRBY J.P.
1. The appellant in
this case was convicted of murder and, no extenuating circumstances
being found, he was on 23rd April 2012 sentenced
to death.
2. The particulars
of the crime were that on the night of Sunday 14th September 2008 the
appellant murdered his wife-to-be and the
mother of his baby, by
bludgeoning her with a steel cold chisel, then cutting her throat
with a table knife, at Plot 477, Block
1, in Francistown.
3. The trial was
marred, in our view, by inadequate investigation, inadequate
prosecution, and inadequate defence, which had a material
effect on
the outcome. This is particularly unfortunate since the offence
charged was one of the gravest on the statute book, a
young woman’s
life had been taken, and the appellant too stood to lose his life if
the ultimate penalty was imposed. It was a case
which demanded
meticulous investigation, meticulous prosecution and meticulous
defence, in order to ensure a fair outcome.
4. Initially an
appeal was lodged against both the conviction and the sentence, but
before us the appeal against the appellant’s
conviction was
withdrawn, and argument was advanced on sentence only, although the
appellant’s counsel took issue with a number
of factual findings made
by the Judge a quo in his main judgment which had a bearing on the
sentence passed. Counsel for the State,
Mr Sechele, very fairly
informed the court that he could not support the imposition of the
death penalty in this case, since extenuating
circumstances were
clearly present, such as to make this inappropriate. This concession
has made the task of the court an easier
one.
5. The facts of the
case, to the extent that these were, by and large, common cause, were
as follows:
The appellant, at
the age of 28, was a driver employed by the North East District
Council, and a small-scale businessman. He and
the deceased had been
in a serious relationship for some four years. When she fell
pregnant, he sought the consent of her parents
to marry her.
The bride price was
agreed, but was heavy, and payment was delayed when a storm damaged
their home, causing unexpected expenses.
For her confinement the
deceased moved to separate lodgings, and in due course their baby was
born. The appellant, by the time
of the murder, not long thereafter,
was living nearby in Francistown. Their relationship was stormy, and
there were quarrels because
the appellant disapproved of the conduct
of the deceased in taking alcohol with girlfriends (and perhaps a
boyfriend as well) late
at night when she knocked off from her job as
a barmaid.
Things came to a
head when, on the night of 13th September 2008, the appellant rang
the deceased late at night, but her phone went
unanswered. Next
morning he was called, so he says, by Kegakgametse (her sister) to
say that the deceased had arrived home very
late in the company of
police officers. He went there at about 9.00 am. The deceased was
unrepentant, saying that she was not allowed
to take calls at work,
but adding that only she knew what was in her heart. She had brought
the police she said, because she feared
he would harass her.
Kegakgametse offered to involve the parents to reconcile them, but
the appellant said this would not be necessary.
The deceased went off
to work.
At 8.00 pm that
evening the appellant called at the deceased’s house to ask if food
he had brought had been prepared. Kegakgametse,
who was on a week’s
visit, offered him food from the pot, but he said he would come later
to eat with the deceased when she got
back from work. He then went
off to visit a friend. According to the uncontroverted evidence of
the appellant, he returned at about
10 pm, and sat at the fireplace
in the kitchen shelter in the yard to await the deceased’s return, so
that he could talk things
through with her. At about 11.00 pm he saw
a white king cab vehicle arrive. It proceeded past the entrance to
the yard, then stopped.
The deceased got out, followed by a man, and
the pair hugged and kissed each other whereafter the man re-entered
the vehicle and
drove off. The appellant asked the deceased if what
she was doing was right, and she replied, “Everyone uses their
body as
they please.” Infuriated by this response, and by what
he had seen, the appellant commenced a sustained assault on the
deceased.
Two eye witnesses saw him dragging her across the yard and
beating her about the head with an iron bar (which subsequently
turned
out to be a steel cold chisel of the type used to split rocks
or firewood). When Kegakgametse went out he charged at her in a fury
and she retreated. The appellant ran out of the yard, only to return
moments later, as people were gathering and to recommence
the assault
on the deceased, who was lying helpless in the yard. The bystanders,
including Kegakgamentse, and United Lucas, the
lady owner of the
yard, fled. From her window, United saw the beating continue, and the
appellant stooping over the deceased’s
throat. Both she and
Kegakgametse heard the gurgling sound of air escaping (a sound
described as being similar to that of a goat
being slaughtered). It
is common cause that this sound was caused when the appellant cut the
deceased’s throat with an improvised
table knife – an old blade with
a strapped handle. The appellant was described by United as “raging
with fury and anger.”
Before leaving the
scene the appellant addressed United, who was at her window, saying
“I have finished my work. Tell the police
they will find me by
the river side. I have left a letter by the deceased.”
The police were
called, and they found the deceased lying dead in a pool of blood,
with the iron bar beside her. There was no letter.
She was taken to
the hospital, where she was certified dead on arrival. A subsequent
post mortem examination revealed that her
skull had been fractured by
blows from a blunt instrument, and that she had a cut throat and a
stab wound on the shoulder caused
by a sharp instrument such as a
knife. Both the crushed skull and the cut throat would inevitably
have caused death, and both were
inflicted ante mortem. It is common
cause that these injuries were inflicted by the appellant.
The police
photographed the scene and took possession of the cold chisel, and,
later, of a table knife found among flower pots in
the yard. The
knife had apparently been washed, as the plastic strapping on its
handle was wet, and there was no blood on the blade.
Later that night the
appellant was arrested by the police. He freely admitted to what he
had done, and during the investigation
he handed a letter to the
Investigating Officer, addressed to the relatives of the deceased.
This letter was, for reasons unexplained,
never produced in evidence,
and nor were its contents revealed to the court. I shall say more
about this later.
The appellant was
cooperative, and was taken to a Magistrate the next day (or the day
thereafter) where he recorded a confession
statement. In this he set
out the problems he had been having with Tshepo, the deceased, and
that he loved her very much. After
she taunted him, saying ‘everybody
uses their body in the way they want/ he described events as follows:
“I beat her and
she fell down. I picked up a metal object, struck her and she died.
There was a table knife which was there
and I stabbed her on the
neck. She was already dead at that time.”
The trial did not
take long, but was marred by significant omissions.
6. First, included
in the record is a typed document headed “Admissions to be made
by the defence (in terms of section 273(1)
of the CP&E Cap
08:02).” The document is not lengthy, but contained quite
significant admitted facts. These include that:
(1) A certain Chedu
Monamati was a housemate of the deceased who confirmed the strained
relations between the appellant and the
deceased.
(2) One Doris Banda,
proprietress of the Touch and Feel Liquor Inn, where the deceased
worked, was told by her of a tiff with the
appellant where the police
were involved. On the fatal night the deceased knocked off at 10.00
pm and was collected by a man called
Tom, rather than being escorted
home by Doris, as was usual.
(3) The appellant’s
cousin, Constable Mbise, confirmed that the appellant was arrested at
midnight.
(4) The deceased’s
uncle, Pastor Bakwadi, identified the deceased’s body to the
pathologist.
(5) The forensic
pathologist, Billy Sethatho examined bloodstained clothing, the iron
bar, and the knife, and linked the blood to
that of the deceased.
7. There is no
reference to this document in the record, save where the prosecutor
remarked at one stage that “A witness who
has been admitted by
the defence has an associated affidavit.” This was the affidavit
of Billy Sethatho which was then listed
as an exhibit with no comment
or objection from the court or from the appellant’s lawyer. In the
judgment, however, the presence
of the admissions list is explained
as follows:
“2. On the 6th
May 2011 the parties filed a joint minute for the meeting held on 5th
May 2011 in terms of which certain admissions
were made pursuant to
Order 68 of the Rules of the High Court. In terms of paragraph 4 of
the said minute, it was stated that the
accused intended to admit the
evidence of the following witnesses:
(a) Chedu Monamati -
PW2 in the list of witnesses.
(b) Constable M.
Mbise – PW3 in the list of witnesses.
(c) Doris Banda -
PW4 in the list of witnesses.
(d) Makanuko Robert
Bakwadi – PW6 in the list of witnesses.
(e) Billy Sethatho -
PW8 in the list of witnesses.
3. Realizing that
the minute referred to above was insufficient for the purposes of
admitting evidence, I directed per the order
dated 6 May 2012, at
paragraph 2, as follows:
“The defence
shall file admitted evidence at least 60 days before the trial date.”
4. The minute of the
meeting between the parties merely expressed an intention to admit
the evidence of specified witnesses without
stating such evidence.
5. On the 13th
September 2011, the defence counsel filed a notice of intention to
make admissions in terms of section 273(1) of
the Criminal Procedure
and Evidence Act, Cap 08:02. The document reads, in part, as follows:
“BE PLEASED TO
TAKE NOTICE that the accused intends to make the following admissions
at the trial…”
6. Following the
above statement there were then specific statements of factual nature
in respect of each witness set out. However,
the document was not
formally presented in the presence of the accused as required by
section 273(1) of Cap 08:02. I will accordingly
disregard that
document.”
8. In my view the
admissions were important both for the State and the defence, and for
the just decision of the case. When the
oversight became obvious, it
should have been drawn to the attention of counsel. The admitted
facts had been filed as ordered by
the court itself and were signed
on behalf of the appellant. There could be no possible prejudice in
admitting these and in having
regard to them as evidence, and the
Judge a quo erred in disregarding them. For the appellant, the
evidence of Doris that Tom was
with the deceased for at least an hour
before taking her home was important. For the State the evidence of
identification of the
deceased’s body was a necessary link in the
chain.
9. Secondly, it
appears that there were important witnesses who were not called at
all. Tom, the deceased’s companion, did not testify.
Nor did any of
the “many people” who gathered around the deceased
immediately before the return of the appellant to continue
his
assault (as averred by Kegakgametse). Nor were the other inhabitants
of the yard called, who might have shed light on the question
of the
chisel and the table knife which the appellant claimed to have picked
up in or about the kitchen shelter.
10. Thirdly, and
most importantly, the letter handed over to the police by the
appellant, and addressed to the relatives of the
deceased, was never
tendered in evidence at all, nor were its contents revealed. This was
a crucial piece of evidence. Its contents
would have revealed whether
it was written before the murder (which would have gone to
pre-meditation) or after the murder (which
might have shown either
remorse or an intention, perhaps, to commit suicide). The letter was
handed over about an hour after the
appellant left the scene.
Certainly, no adverse inferences can be drawn against the appellant
arising from the letter, in such
circumstances. The Judge a quo was
in error when he held in his judgment on extenuating circumstances
that the appellant “came
with not only a letter explaining his
actions but also armed with a heavy metal rod.” There was no
evidence of the contents
of the letter.
11. Finally, there
was no evidence from the eye witnesses (and especially from United)
as to how and when the appellant washed the
knife which was found
among the flower pots. There must have been some parts of what
happened that night which were not observed
at all.
12. None of these
omissions can be held against the appellant. In law, only reasonable
inferences in his favour may be drawn therefrom.
13. The appellant
testified on his own behalf, and added significantly to what he had
told the Magistrate shortly after the crime.
Now he said that the
deceased had threatened to “hire people for him”
(apparently to assassinate him), and that she had
attacked him
grasping his private parts so that he had to defend himself, and that
she made painful remarks concerning his HIV
status. The Judge, who
heard him testify, rejected these additions as exculpatory
afterthoughts. We have no reason to interfere
with that finding. He
accepted, however, the overall truthfulness of his written confession
statement, save as to premeditation,
the conduct of the deceased, and
the source of the murder weapons.
14. Counsel for the
appellant attacks as unjustified a number of findings of fact made by
the Judge both in his main judgment on
the merits, and in his
judgment on the issue of extenuating circumstances. These include the
following remarks made in the main
judgment:
(1) that the
appellant “announced what he had just done to the deceased
apparently in satisfaction that his mission had been
achieved”
(2) that because the
chisel and knife “were seen for the first time” after the
incident by the owner of the yard and a
visitor “the
probabilities are that they were brought by the (appellant)”
(3) that “it is
not true that the deceased and an unknown man were seen by the
accused kissing outside the car” and “there
was no time to
exchange words or to quarrel”
(4) that “I do
not think there is any evidence of provocation whatever”
(5) that … “I
have no doubt that (the appellant) … brought the chisel and laid
ambush”
(6) that the
appellant “really desired to terminate the life of the victim in
style and grandeur often characteristic of gansterism
in
cinematography.”
15. These findings
derive from the recorded evidence of the witnesses, rather than from
credibility findings alone, and to the extent
that they are not
justified by the record, this court is at liberty to express its
disagreement.
16. As to finding
(1), the sting is in the learned Judge’s choice of words – that the
announcement was made “in apparent satisfaction,”
and that
the appellant’s “mission” had been achieved. What the
appellant in fact said (as was recorded elsewhere) was
that he had
completed his work (tiro), that he had left a letter beside the
deceased (which was not in fact true), and that the
police would find
him by the river. Given its ordinary meaning, this seems to indicate
that the appellant was contemplating suicide
because of what he had
done, which would indicate contrition rather than bravado. The word
‘mission’ is also loaded in meaning,
and implies pre-planning. Since
no letter was in fact left beside the deceased, that cannot be
assumed.
17. As to finding
(2), questions regarding the knife and the chisel were put to only
two persons, and in a perfunctory manner. One
was the owner of the
yard, who routinely used her own stove and not the kitchen shelter,
except occasionally to cook samp, and
the other was a short term
visitor to the yard. No enquiry was made of other residents of the
yard who might have known of these
items or have used them recently.
The photograph album reveals scrap iron lying about the kitchen
shelter. Later the Judge developed
the ‘probability’ that the
appellant brought the chisel into having “no doubt”
(finding 5) that he brought the chisel
and laid an ambush. In my
judgment the evidence was not sufficient to show that the appellant’s
evidence that the items were picked
up at the kitchen shelter could
not reasonably possibly be true.
18. Finding (3), the
rejection of the appellant’s consistent version, that he was
infuriated by seeing a stranger kissing his betrothed
and the mother
of his child (and not just his girlfriend, as the Judge described
her), has as its basis only the statement of Kegakgametse
that she
“heard the car door open.” From this he inferred that only
one door opened, and only one passenger alighted.
Neither is a
necessary inference. The witness was not questioned further on this.
The appellant was not challenged on his evidence
that the couple
kissed, or on the statement of the deceased that she could use her
body as she pleased. The finding by the Judge
against the appellant
on these issues was unfair, and indeed on dealing with extenuation,
he seemed to reverse this, by stating
that “(the appellant) then
saw the man and his girlfriend kissing and hugging.”
19. Finding (4) (“I
do not think there was any provocation whatever”) is also
reversed later, when extenuation is dealt
with. There the Judge found
that there was a degree of provocation but that this was “not of
appreciable weight.” In
my judgment there was significant
provocation, although certainly not sufficient to reduce a very bad
murder to manslaughter. The
appellant was infuriated when his
suspicions were confirmed by seeing his fiancee carrying on with a
stranger, and then having
her taunt him with the boast that she could
use her body as she pleased.
20. Finding (5),
that the appellant lay in ambush, is based upon a number of
indicators, and this finding was repeated even more
strongly when
dealing with extenuation. There the Judge held that “the murder
was carefully planned as (the appellant) armed
himself with a deadly
weapon and then secretly lay in wait in the dark until the arrival of
the deceased.” The Judge found
that when the appellant returned
and heard Kegakgametse talking on the phone, he should have entered
and waited for the deceased
there. I can see nothing untoward in the
appellant waiting at the fireplace in the kitchen shelter, rather
than entering the house,
late at night, where another woman was
alone. There was moonlight, and light from the streetlamps, and he
had already informed
Kegakgametse that he would return later to eat
with the deceased, as she confirmed. The Judge further held that the
appellant “gave
false information to the deceased’s sister (that
he would be sleeping away from home) with the sole intention to lure
the deceased
into complacency.” I can find no basis for this on
the record. Kegakgametse testified that when the deceased rang to ask
who
was there she replied that Chedu, her housemate, and not the
appellant, was away for the night. Further, as I have said, the
appellant
clearly told her that he was coming back to eat with the
deceased. There was no evidence of any trap.
.. Finally, the
Judge’s finding that murder was committed with gangster like
grandstanding does also not appear, with respect, to
be justified.
Rather the picture is painted of an infuriated lover losing control
when provoked by the untoward behaviour of his
fiancee, and embarking
on a train of violence, after which he indicated that the police
would ‘find him by the river/ While there
is a strong suspicion that
he may have gone away to fetch the knife, that too was not
established beyond doubt. According to the
witnesses he was away only
momentarily, and on his return he resumed assaulting the deceased
before his final, and unforgivable
act of cutting her throat. No one
saw him bring the knife, and his explanation that it was in the
kitchen shelter could reasonably
possibly be true.
22. It was largely
on the basis of those findings, although not all of them were carried
forward to the portion of the judgment
dealing with extenuation, that
the Judge reached his ultimate conclusion, after weighing both
extenuating and aggravating factors,
that the death penalty was
mandatory. Counsel for the appellant argues that the conclusion that
there were no extenuating circumstances
cannot be justified. Counsel
for the State agrees, and I do too.
EXTENUATING
CIRCUMSTANCES
23. The law on
extenuating circumstances, and on the approach of the Court of Appeal
in this regard in an appeal against the death
penalty is now well
established.
24. First, the
imposition of an appropriate sentence in a criminal case is a matter
primarily within the discretion of the trial
Judge. An appeal court
will only interfere where the trial Judge has proceeded on a wrong
principle, acted on an improper evaluation
of the evidence, or has
imposed a sentence substantially different to that which the appeal
court would have imposed. See DIOKA
vs THE STATE (2007) 2 691 CA at
695.
25. Second, in a
capital case, where no extenuating circumstances are found, the only
permissible penalty is death. This sentence
is, by definition,
substantially different to a sentence of imprisonment, however
lengthy, and it is a prison sentence which is
usually imposed when
extenuating circumstances are found to be present. So, in a capital
case, the Court of Appeal has the duty
to carefully re-examine the
evidence led, and if in its opinion extenuating circumstances should
have been found, it will set aside
the sentence of death and impose
an appropriate prison term. See ZIBANE THAMO vs THE STATE
CLCLB-052-11.
26. Third,
extenuating circumstances include any factors bearing on the
commission of the crime which serve to reduce the moral
blameworthiness of the accused person, as opposed to his legal
culpability. These may include, for example, immaturity,
intoxication,
and provocation. The standards of behaviour of an
ordinary person of the class or community to which the accused person
belongs
are also relevant. See section 203(3) of the Penal Code Cap
08:08; PHIRI vs THE STATE (2005) 2 BLR 240 CA.
27. Fourth, in
arriving at its moral judgment as to whether or not extenuating
circumstances ought to be found, the court is to
adopt a balanced
approach. It must consider not only the factors tending to reduce the
moral blameworthiness of the convict, but
also any aggravating
features which are present, before making its decision. See KOITSIWE
vs THE STATE (2001) 2 BLR 317 CA at 321.
28. In considering
the question of extenuating circumstances the learned Judge, for
reasons unexplained, departed from his earlier
factual findings that
there had been no provocation, in that the deceased did not kiss and
hug her companion, Tom, nor did she
have time to utter the alleged
words concerning the use of her body. Now he conceded that these
words and actions represented the
trigger for the appellant’s
violence but held that “this factor is not of appreciable
weight.” In conducting his balancing
exercise, he held as
follows:
“I am of the
firm opinion that the facts that tend to reduce the moral
blameworthiness of the Accused are far outweighed by
the facts that
aggravate the moral blameworthiness of the Accused. This is not a
case where an innocent man stumbles upon his girlfriend
kissing
another man and overtaken by passion strikes his girlfriend with the
only available object leading to death. In the instant
case the
Accused carefully planned for the tragic outcome. He gave false
information to the deceased’s sister with the sole intention
to lure
the deceased into complacency and a false sense of freedom; at the
same time the Accused set out to inquire from the deceased’s
employer
when she will be knocking off and way-lay (sic) in the dark for the
deceased at the latter’s residence; he came with not
only a letter
explaining his actions but also armed with a heavy metal rod
described by witnesses as a chisel, having hit the deceased
to the
ground, he proceeded with his onslaught, using the heavy metal rod on
the most vital parts of the body, and in the process
crushing part of
the deceased’s skull. As if the foregoing was not enough, the Accused
went away to get a knife with which he slit
the deceased’s throat to
finish her off.”
29. As Mr Mack has
ably argued, and as I have held above, this assessment could not, on
the record before us, be justified in a
number of respects.
30. It was not
proved that:
the appellant
“carefully planned for the tragic outcome;”
that he “gave
false information to the deceased’s sister” to lull the deceased
into complacency;
that he made any
enquiry of the deceased’s employer;
that he lay in wait
for the deceased in the dark;
that he came with a
letter explaining his actions;
that he came armed
with the heavy chisel; or
that he went away to
fetch a knife with which to finish her off.
31. All of these
were assumptions made by the Judge, no doubt moved by righteous
anger, without the evidentiary basis required in
a criminal case, and
it is upon these assumptions that he based his finding that there
were no extenuating circumstances.
32. Mr Mack has
submitted that in this case the Judge a quo allowed his anger at the
brutality of the crime to affect his objectivity
and, in the words of
Ramodibedi J.A. in BENSON KEGANNE vs DPP CLCLB-000066-08, he “adopted
a dogmatic hardline approach against
the appellant.” That is
perhaps too strong, but the learned Judge’s choice of language does
indicate a deep sense of anger
and outrage at the conduct of the
appellant. In his judgment he repeats no less than seven times his
conviction that the appellant
lay in wait for the deceased, which was
a finding, as I have found, which was not justified on the evidence.
33. This court too
feels a sense of revulsion and anger at the brutality of the killing
– that not content with crushing the deceased’s
skull, he returned to
cut her throat as well. But that revulsion must not be allowed to
cloud the objectivity of the balancing
exercise, when the extenuating
circumstances are weighed as well.
34. The learned
Judge first found that the appellant “undoubtedly believed that
his girlfriend had an affair with other men.”
He accepted that
the appellant and the deceased had agreed to marry and that their
parents had accepted this and had set a bridal
price. He accepted
that they had a child together. Against that background, he also
accepted that after seeing his fiancee kissing
a stranger, she was
boastful and unrepentant, taunting him that she could use her body as
she pleased. Finally, he accepted that
this conduct was the trigger
that caused the appellant to “unleash a vicious assault on the
deceased.” He went on to
find that this provocation “was
not a factor of appreciable weight” (moving a little from his
earlier finding that there
was “no evidence of provocation
whatsoever).”
35. I cannot agree
with that assessment. There have been numerous cases in which the
belief in or realization of infidelity on the
part of a wife or
partner has been held in its own circumstances to be a ground for
significant provocation, when the wife or partner’s
actions
confirming that belief or reasonable suspicion have triggered a
violent response from an accused person. It has also frequently
been
held that such sudden provocation can constitute an extenuating
circumstance such as to make the death penalty inappropriate.
See,
for example LETSHOLO vs THE STATE (1984) BLR 273 CA; NTESANG vs THE
STATE (2007) 1 BLR 387 CA; MOKHOLO vs THE STATE [1996] BWCA 35; (1996) BLR 646 CA;
MMINAKGOMO vs THE STATE (1996) BLR 655 CA; MOREMI vs THE STATE (2005)
1 BLR 31 CA; SEKOTO vs DPP (2007) 1 BLR 392 CA.
36. The rationale
behind the approach to these so-called “passion killings”
is that they are hot-blooded rather than cold-blooded
murders,
committed in the heat of passion, often caused by sexual jealousy.
Where, however, there has been deliberate pre-planning
and the
killing can be classified as a cold-blooded murder, then a motive
such as lust or jealousy will frequently not constitute
a sufficient
extenuating circumstance, though each case will turn on its own
facts. See, for example, BOSCH vs THE STATE [2001] BWCA 4; (2001) 1 BLR 71 CA, where
a sentence of death was upheld by this court.
37. In the present
case, by dint of the misdirections of fact detailed above, the Judge
in the court a quo moved the present case
from its proper description
as a hot-blooded killing to a
cold-blooded
killing. That was not, in my judgment justified on the evidence. Here
premeditation was not proved. The explanation
of the appellant that
he snatched up the weapons
could reasonably
possibly have been true. Further it seems that his absence before
returning to continue the assault was only momentary.
There is no
evidence that his fury had
abated. The evidence
on his state of mind was given by the independent witness United
Lucas, and was that he was “raging with
fury and anger.”
And as Tebbutt J.P. remarked in
KOITSIWE vs THE
STATE (2001) 2 BLR 317 CA:
“Premeditation
or the absence of it can be very important in assessing an accused
person’s moral guilt.”
38. It is clear, as
state counsel has conceded, that the death penalty cannot stand, but
what then is an appropriate penalty in
this case? General guidance
was provided by Lord Coulsfield J.A. in NTESANG vs THE STATE (2007) 1
BLR 387 CA at 390/391, when he held that:
“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. On the other hand, it has always been
recognized that it is salutary for the courts to
aim at a measure of
uniformity in sentencing, whenever this can reasonably be done.”
39. After referring
to the growing prevalence and senselessness of these so-called
“passion killings” in which young women
continue to lose
their lives, the learned justice continued, to say
“… any Judge
who has to deal with a case of this kind would do well to start by
thinking of a sentence in the region of 15
– 17 years, subject, of
course, to adjustment upwards or downwards, in the light of any
particularly significant circumstances
of the case before him.”
40. He opined also
that sentences of 12 years and 25 years must represent extremes
beyond which a reasonable person could not possibly
go in a case of
this kind. He was referring, of course, to hot-blooded killings.
41. Ntesang’s case
was decided six years ago and, regretfully, there has been no decline
in the rate of commission of these killings,
mainly of young women,
arising from lust, jealously and possessiveness. The Lord Coulsfield
ranges are not set in stone, and it
may well be that it is now
necessary to ratchet up a notch the sentences to be imposed,
although, of course each case will still
be determined on its own
particular circumstances. One of the circumstances where movement,
and even substantial movement, above
the 17 years general upper
limit, is where a murder is committed with direct intention to kill,
rather than an intention to inflict
grievous harm, or a recklessness
as to whether death will or will not occur in a potentially fatal
attack. Notwithstanding the
heat of passion, that deliberate intent
will warrant a stiffer sentence. Such a case was MOREMI vs THE STATE
(2005) 1 BLR 31 CA, where a 25 year old man repeatedly stabbed his
lover with a knife, and also cut her throat. The murder was committed
in passion,
and was not premeditated. This court upheld a sentence of
20 years imprisonment, because of the brutality of the crime.
42. This case has
similar features. It was committed with extreme brutality, and with a
direct intention to kill. The crushing of
her skull, and the cutting
of her throat as she lay helpless, demonstrate this beyond any doubt,
notwithstanding the appellant’s
fury and the provocation to which he
had been subjected.
43. I have
considered Mr Mack’s argument on the appellant’s relative immaturity
and the standards of behaviour to be expected from
a person of his
background. In my judgment he was not immature. He was a father and a
businessman and was in permanent employment.
Further, such brutal
behaviour would be totally unacceptable, in my view, to any
right-thinking member of his community.
44. An appropriate
sentence, in my judgment, is one of 20 years imprisonment and that is
what he must serve.
Accordingly:
(1) The appeal
succeeds.
(2) The sentence of
death is set aside, and is replaced by a sentence of 20 years
imprisonment, to date from 2nd November 2011,
when the appellant’s
bail was revoked.
DELIVERED IN OPEN
COURT AT GABORONE THIS 1st DAY OF FEBRUARY 2013.
I.S. KIRBY JUDGE
PRESIDENT
I AGREE
LORD ABERNETHY
JUSTICE OF APPEAL
I AGREE
I.B.K. LESETEDI
JUSTICE OF APPEAL
