FRANCISTOWN: Justice Bashi Moesi recently sentenced a 42-year-old man of Makwate village, Joseph Mmoko, to death by hanging over the death of his girlfriend, Badiredi Mmampane Tsiapane.
According to the particulars of the offence, Mmoko murdered Tsiapane on April 9, 2015 at or near Mogothe ward in Shakwe village in the Central District.
Delivering a ruling on extenuation factors and sentence, Justice Moesi said that the deceased died of asphyxia (suffocation) consequent to her nose and mouth being covered until she suffocated.
“This was a horrendous assault committed against a young woman,” Moesi said.
According to the Penal Code, Moesi explained, Section 203 (CAP 08: 01) of the Laws of Botswana, prescribes the punishment as follows: Subject to the provisions of subsection (2), any convicted of murder shall be sentenced to death.
Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any other sentence than death.
In deciding whether or not there are any extenuating circumstances, the court shall take into consideration the standards of behaviour of any ordinary person of the class of the community to which the convicted person belongs.
“I have been urged by the defence counsel to adopt an anxiously enquiring mind in approaching this second phase of the process. The exhortation is well taken and noted of. There is abundant case law in this country developed over the years in this area… In summary, the foregoing cases discuss a whole array of factors such as youthfulness, intoxication, provocation and excess emotional instability due to stress and strain and so on and forth to be taken into consideration in this enquiry,” the judge said.
He added: “The authorities further emphasise that no onus is cast upon the accused to show that such extenuating factors exist and further that the exercise to determine whether or not extenuating factors exist must be approached methodically and with scrupulousness as a matter pre-eminently within the discretion of the trial court.”
With the above principles at the forefront of his mind, Moesi noted, he shall turn to the instant case.
“At the conclusion of the case, there were readily no facts that appeared to me relevant to extenuation. Extensive submissions were made at a subsequent enquiry by the defence counsel in a bid to assist the court to determine the existence or otherwise of such factors… The defence counsel submitted that youthfulness is present as an extenuating factor in this case,” Moesi said.
However, Moesi noted, the convict was nearly aged 38 when he committed the offence.
Moesi added: “The defence counsel submitted that excess emotional instability due to stress and strain on the part of the accused was a relevant extenuating factor. According to the learned counsel’s view, this condition was brought
He further continued: “It was argued that the fight over some debt, which fight between one Lebo and the deceased whilst they were at an entertainment place, to which the accused alluded, was evidence of this situation. I am not persuaded by this argument. My justification for this is that it was also the accused’s testimony that concerning the alleged incident of a fight, he did not know the person Lebo.”
He had, Moesi said, only learnt from the deceased that such was the person’s name.
“If it was the case, I would expect the accused at a minimum and bearing in mind that no onus of proof is cast upon him to prove the truth of this, to have shed some light on what connected the said fight and the financial situation he and the deceased found themselves in,” Moesi said.
“I am of the considered opinion that the accused was a mature person and thus find no merit in the defence’s argument… I rather gained the impression during trial in relation to the accused’s testimony concerning the supposed fight that the accused was endeavouring to create the impression that the alleged debt was news to him and a matter entirely between the said Lebo and the deceased.
“Indeed, the whole story was hollow and possessed all appearances of an implausible construction of convenience, invented with the self-serving motive by the accused to distance himself from the murder and pin the responsibility for it to the said Lebo,” Moesi said.
He went on: “This posture was discernible also with regard to his evidence suggesting that he did not even spend the night with the deceased. All indications are that the murder of the deceased at the hands of the accused was premeditated. His act of removing himself from the scene of murder after the murder and remaining in hiding until he was apprehended after a painstaking day-long manhunt speaks volumes.”
“I thus come to the conclusion,” Moesi said, “that after much excruciating consideration that there were no extenuating factors in this case”.
“Without any extenuating circumstances, there is no doubting that the offence of which the accused has been convicted of is such of a character as would merit the imposition of the death penalty by hanging. The accused is therefore sentenced accordingly. He is advised of his right to appeal to the Court of Appeal within six weeks,” Moesi said.
Neo Machola represented the State while Kagiso Pogiso appeared for the accused.