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Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/2006 (2)/Cases Reported/MASILO v THE STATE 2006 (2) BLR 545 (CA)

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MASILO v THE STATE 2006 (2) BLR 545 (CA)

Citation 2006 (2) BLR 545 (CA)

Court Court of Appeal, Lobatse

Case No Crim App No 37 of 2005

Judge Tebbutt JP, Ramodibedi J and Kirby AJA

Judgment July 25, 2006

Counsel B U Manewe for the applicant.

K Segabo for the State.

Annotations

Flynote
G Criminal law ­ Murder ­ Sentence ­ Factors to be taken into account by court in sentencing set out ­ Court of Appeal disinclined to interfere with
sentence imposed by trial court in absence of misdirection ­ Misdirection found to have taken place ­ Sentence in present matter found too harsh in
circumstances and reduced.
Headnote
H The appellant was charged with the murder of her newborn baby, convicted and sentenced to 10 years' imprisonment. She appealed against
the sentence.
Held: (1) The court believed in the sanctity of human life and therefore the unlawful killing of a human being had to be met by the courts with
the appropriate punishment, taking into account the nature of the crime, the interests of society and the interests of the offender.
(2) The question of sentence primarily lay within the discretion of the trial

2006 (2) BLR p546

court and the Court of Appeal would, as a general rule, be disinclined to interfere in the absence of misdirection. A

(3) The judge a quo's remarks showed that he had approached the sentence in a spirit of anger and relied on factors that were not proved at
the trial. These remarks constitute a misdirection on the part of the court a quo entitling the court to interfere with sentence.
(4) It was a fundamental principle of the criminal justice system that punishment should be fair to the accused and blended with a measure of B
mercy while at the same time balancing these factors with the nature of the crime and the interests of society.
(5) The sentence imposed was too harsh in the circumstances of the case and out of proportion when compared to other similar cases.
Sentence reduced to five years' imprisonment. Jiet v The State (Crime App 28/2002), unreported considered. Masono v The State [2000] 1
B.L.R. 46, CA distinguished.
Case Information
Cases referred to: C

Bogosinyana v The State [2006] 1 B.L.R. 206, CA

Chawe v The State (Crim App 24/2004), unreported
Jiet v The State (Crim App 28/2002), unreported
Masono v The State [2000] 1 B.L.R. 46, CA
Mojagi v The State [1985] B.L.R. 560 , CA
Moremi v The State [2005] 1 B.L.R. 31, CA D

S v Sparks and Another 1972 (3) SA 396 (A)

State v Pogiso [1983] B.L.R. 54
Appeal against sentence for murder. The facts are sufficiently stated in the judgment. E

B U Manewe for the applicant.

K Segabo for the State.
Judgment
RAMODIBEDI JA:
This case concerns an unwanted pregnancy that has landed the appellant in deep trouble. On the night of 1 June 2002 and at Mabolwe Village
in F the Central Administrative District, the appellant secretly delivered a baby alone in her room. Astonishingly, she had the indiscretion to
dump the baby out in the bush at a nearby river as a result of which it regrettably died. Consequent upon this incident, the appellant was
charged with murder contrary to s 202 of the Penal Code (Cap 08:01). She was convicted as charged and sentenced to 10 years' imprisonment.
She has appealed to G this court against sentence only.
It is pertinent to record that after hearing argument in the matter on 5 July 2006, we upheld the appeal and reduced the sentence from 10
years to five years' imprisonment. We indicated that reasons would be furnished later. These are the reasons. H
The facts, briefly stated, show that the appellant, a young woman of about 28 years old and an unmarried mother of two minor children, had a
love affair with a 'boy' simply referred to in evidence as Mpho. The appellant fell pregnant as a result of this love affair. There are, however, two
conflicting versions as to whether or not the appellant was aware of her pregnancy. In her unsworn testimony at the trial, she said that she did
not

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RAMODIBEDI JA
 The facts, briefly stated, show that the appellant, a young woman of about 28 years old and an unmarried mother of two minor children, had a
love affair with a 'boy' simply referred to in evidence as Mpho. The appellant fell pregnant as a result of this love affair. There are, however, two
conflicting versions as to whether or not the appellant was aware of her pregnancy. In her unsworn testimony at the trial, she said that she did
not

2006 (2) BLR p547

RAMODIBEDI JA
A know about her condition. In her confession, exh A, which was admitted by consent it appears, however, that she became aware of the
pregnancy in January 2002. She confronted Mpho who however denied responsibility.
Be that as it may, it shall suffice to record that on 1 June 2002, the appellant met the accomplice, Rejoice Madiope (the first prosecution
witness) at B the bus terminal at Bobonong. The two women who are cousins then travelled together since the first prosecution witness was
going to attend a night vigil at Mabolwe Village while the appellant was also going there to deliver clothes to one of her minor children living
thereat with the appellant's aunt. The appellant ordinarily resided at Bobonong.
It is common cause that the appellant informed the first prosecution witness that she had missed menstruation for 10 months. The latter
advised C her to drink a traditional medicine referred to in evidence as 'monepenepe'. Although the first prosecution witness does not refer to
this in her evidence, the appellant states in her confession that the first prosecution witness also suggested an alternative of her taking laxa
tablets. The appellant opted for the latter and in due course she swallowed five laxa tablets at a go. She proceeded to bed to sleep while the
first prosecution D witness went to the night vigil. She declined the latter's invitation to accompany her.
On the night of 1 June 2002 as stated above, the appellant delivered a baby. She says that it was born alive and that it even screamed, as
babies will normally do at birth. She then waited for the first prosecution witness. When the latter arrived back from the night vigil the appellant
informed her E about the birth of the baby. She exhorted her, however, that 'it should be our secret as the parents knew nothing'.
The first prosecution witness then assisted the appellant by procuring a sofa cover, a tracksuit top and a plastic with which the appellant
wrapped the baby. Furthermore, the first prosecution witness emptied the appellant's sling bag of its contents so that the latter could put the
baby in it and this was duly done. The first prosecution witness is adamant that the appellant told her she 'wanted to kill the baby' and even
suggested to her that F it must be 'our own secret'. Thereafter the two women agreed, at the suggestion of the first prosecution witness that
the appellant should 'go and dump the baby at Stoki Madiope's toilet or at the Community Hall toilet'.
Dumping the baby in Stoki Madiope's toilet, however, subsequently proved an unwise proposition because, according to evidence of the first G
prosecution witness 'people would hear it crying'. As it turned out, the Community Hall toilet, on the other hand, was locked. The appellant then
took a decision on her own to go and dump the baby in the bush as fully set out above.
With the above prelude, I turn now to the question of sentence. At the outset I should like to stress that this court believes in the sanctity of
human H life. Unlawful killing of a human being must therefore, be met by the courts with appropriate punishment, taking into account the
triad consisting of the nature of the crime, the interests of society and those of the individual offender.
This court has stressed several times that the question of sentence is a matter which primarily lies within the discretion of a trial court and that
the Court of Appeal will, as a general rule, be disinclined to interfere in the

2006 (2) BLR p548

RAMODIBEDI JA
absence of a misdirection. See such cases as Mojagi v The State [1985] B.L.R. 560 , CA; Bogosinyana v The State [2006] 1 B.L.R. 206, CA and
A Moremi v The State [2005] 1 B.L.R. 31, CA.
In sentencing the appellant to 10 years' imprisonment, the learned judge a quo made the following remarks in para [40] of his judgment:
'There appears to be an unfortunately swelling number of women, who consent to sexual intercourse and go headlong into copulation, without employing B
contraceptive methods, some of which are readily available. Once they fall pregnant, they then decide to do the ultimate, by either killing or dumping the child.
This is an aberration from the maternal instinct. If you choose to have unprotected sexual intercourse, you should be ready to live with its consequences,
especially when, as I have stated, prevention is possible and readily available. You should expect little sympathy from the Courts when you do not take
advantage C of contraceptive methods and take the option of killing a human being, who is helpless and innocent. Every life, including that of the newly­born
child is protected by the law and transgressors should be warned.' (My emphasis.) D

In my view the italiced words in the quotation reproduced above are unfortunate. Mr Manewe for the appellant submits, and correctly so in my
opinion, that the learned judge a quo's remarks show that not only did he approach sentence in a spirit of anger but that he also relied on
factors which were not proved at the trial. Thus, for example, there is not an iota of evidence on record that the appellant engaged in
unprotected sexual intercourse or that she did not use contraceptives. Certainly the court a quo never gave her an opportunity to state her
view in the matter. In any E event I am not prepared to accept, in the absence of evidence to that effect, the insinuation inherent in the
court a quo's remarks that every woman who falls pregnant does so because she did not use contraceptives. I conclude, therefore, that these
remarks constitute a misdirection on the part of the court a quo entitling this court to interfere with sentence. F
Equally of concern is the court a quo's remarks that the appellant 'should expect little or no sympathy from the Courts'. With due respect, these
remarks fly in the face of such cases as S v Sparks and Another 1972 (3) SA 396 (A) at p 410 and Bogosinyana v The State (supra). It is a
fundamental principle of our criminal justice system that punishment should be fair to the accused and be blended with a measure of mercy
while G at the same time balancing these factors with the nature of the crime and the interests of society. See for example Chawe v The
State (Crim App 24/2004), unreported.
The sentence of 10 years' imprisonment imposed on the appellant for killing her newly born baby is, in my opinion, undoubtedly too harsh in the
particular circumstances of this case. H
Indeed counsel for the appellant submits that this sentence is out of proportion when compared to other similar cases coming before the courts
in this country. Thus, for example, in State v Pogiso [1983] B.L.R. 54 , the accused was sentenced to three years' imprisonment for the murder
of her newly born baby.

2006 (2) BLR p549

RAMODIBEDI JA
A In Jiet v The State (Crim App 28/2002), unreported, the accused had been sentenced to five years' imprisonment for murdering her newly
born baby. This court confirmed the sentence.
Mr Segabo for the respondent was unable to cite a single case where an accused person was sentenced to 10 years' imprisonment for killing
her B newly born baby. Instead he sought to rely on the case of Masono v The State [2000] 1 B.L.R. 46, CA which is, however, clearly
distinguishable from the present case. The accused in that case was not the mother of the newly born baby whom she had murdered. On the
contrary, the accused had tried to perform an abortion on the baby's mother for a reward of P700. This abortion, however, failed and the baby
was born alive. C The accused then proceeded to kill the baby by throwing it into a pit latrine. She was convicted by the High Court of murder
and sentenced to hang. On appeal the conviction was confirmed but the sentence was altered to one of 20 years' imprisonment. There was no
question of emotional stress as in casu and quite clearly the accused was motivated by financial gain.
D Without minimizing the seriousness of the offence, the conclusion is inescapable, therefore, that the sentence imposed on the appellant is
excessive and that it has no proper regard to her personal circumstances such as the undisputed fact that she had no means of supporting her
other two children aged nine and five years old respectively, let alone the deceased baby. As pointed out above, Mpho denied paternity. To
make matters worse, the appellant's own parents were unemployed and could not offer any financial assistance to her. Indeed it was not
disputed that not E only did the appellant 'struggle' financially but that she was also under a lot of emotional stress.
There is one final point to which I must advert shortly. It is this: is it proper for courts to impose disparate sentences for similarly circumstanced
accused persons? In Moremi v The State (supra) this court made the following remarks concerning sentence:
'Each
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unreliable, particularly when the demands of society may not be the same.'
 make matters worse, the appellant's own parents were unemployed and could not offer any financial assistance to her. Indeed it was not
disputed that not E only did the appellant 'struggle' financially but that she was also under a lot of emotional stress.
There is one final point to which I must advert shortly. It is this: is it proper for courts to impose disparate sentences for similarly circumstanced
accused persons? In Moremi v The State (supra) this court made the following remarks concerning sentence:
F 'Each case however, requires a consideration of its own merits and applying sentences in other cases to the one before the court is therefore frequently
unreliable, particularly when the demands of society may not be the same.'

G I do not understand these remarks as amounting to a proposition that it is permissible for courts to impose disparate sentences for similarly
circumstanced accused persons. Were this to be the case, I have no doubt that there would be uncertainty in our sentencing system and that
our criminal justice system would thereby soon fall into disrepute. It could lose credibility in the minds of right thinking people. What I consider
to be the H correct approach then is that our courts should strive for a measure of uniformity in sentencing whenever this can reasonably and
justly be done. Put differently, it is undesirable for courts to impose disparate sentences for similarly circumstanced accused persons. This is
without derogating from the fact that no two cases can hardly ever be exactly the same and that each case must be treated on its own merits.
In the light of the aforegoing considerations, the court came to the conclusion

2006 (2) BLR p550

RAMODIBEDI JA
that the most appropriate sentence in the peculiar circumstances of this case is that the appellant be sentenced to five years' imprisonment. A

In the result the appeal against sentence is upheld. The sentence of 10 years' imprisonment imposed by the trial court is set aside and replaced
with the following sentence:
'Five (5) years' imprisonment. The sentence is backdated to 11 July 2002 being the date when the appellant was first taken into custody.' B

Tebbutt JP and Kirby AJA concurred.

Appeal upheld and sentence varied. C

2006 (2) BLR p550

D

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 Appeal upheld and sentence varied. C

2006 (2) BLR p550

D

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