FRANCISTOWN: The appeal against conviction and sentence by two robbers who put chillies into the eyes of a Chinese businesswoman before robbing her was dismissed by the High court on Monday.
Ngwenya was also sentenced to one year in jail for entering Botswana illegally at or near Matsiloje village in 2017 during a date that is unknown to the prosecution.
Ngwenya’s 10 year robbery sentenced was ordered to run concurrently with the one year sentence of entering Botswana illegally.
The trial court in Letlhakane said it considered the seriousness of the offence when sentencing the appellants.
Ngwenya’s grounds of appeal were that the magistrate was biased when convicting him of the offence. He said the Magistrate erred by relying on the evidence of the cellphone that he and Macheng left at the scene of crime and that the Magistrate erred by not allowing him to call his witness to come and testify in court.
Ngwenya opted to remain silent during trial while Macheng gave sworn evidence.
On the other hand, Macheng’s ground of appeal was that the trial court erred by holding that the complainant was credible. He said the trial court was biased and convicted him on baseless grounds and also erred by relying on the evidence of the cellphone that he and Ngwenya forgot at the scene of crime.
Wu told the court that the appellants came to her house in Letlhakane claiming that they had been sent by the church to do some maintenance works inside her house.
“The complainant was at first reluctant to open the door for the two appellants to enter her house. She said she later relented and opened the door. Upon entering the house, the complainant said that the appellants tied her arms and legs and then put chillies into her eyes. They then demanded money from the complainant,” said Justice Matlhogonolo Phuthego, adding that the appellants were later arrested within an hour after robbing Wu.
“It is not in dispute that the complainant was disposed of her property that is listed in the charge sheet and that those who robbed her of her property tied her hands and legs and thereafter put chillies in her eyes. The only issue in dispute was to identify the assailants. The evidence adduced in court by the State was circumstantial and direct. It was direct in the sense that the assailants were arrested shortly after they committed the offence in broad daylight hence the complainant was able to identify them,” said Phuthego.
Phuthego added: “The complainant managed to identify the suspects. It is worth noting that that large sums of money was recovered from the appellants who failed to give a reasonable explanation of how they came to possess that money. Other stolen items that the complainant listed as her stolen property were also retrieved from the appellants.”
Macheng, Phuthego went on, pleaded alibi saying that on the day the offence was committed he was with his cousin who had visited him from Jwaneng.
“Macheng also said that he was implicated in the commission of the offence simply because he was with Ngwenya when they were arrested. He said he left his cousin at his place of residence when he went to buy meat and test drive the car he was fixing. I am of the view that there was ample time for him to commit the offence when he left his place to buy meat and test drive the car he was fixing unbeknown to his cousin. Moreover, the money that was recovered from both appellants tallies with the money that the complainant said was stolen from her. This cannot be a coincidence and the defence of Macheng is therefore, rejected as false as stated by the Magistrate in her judgment,” Phuthego stated.
The Magistrate, Phuthego added, cannot be faulted for its judgment which tallies with the evidence that was adduced by other State witnesses in court.
“The record reflects that on July 2 in 2019 Ngwenya wanted to call his witness to come and testify on his behalf and the witness indeed came to court. After the witness came to court, Ngwenya said he no longer wanted her to testify on his behalf. Therefore, his assertion that he was not allowed to call his witness is rejected. In April, Ngwenya filed additional grounds of appeal contending that the 23 months and 20 days that he spent in jail before he was tried should have been factored into his sentence. The Magistrate did not explain why she did not factor that period when sentencing the appellants,” said Phuthego.
Phuthego added: “The Magistrate should have factored the time the appellants spent in custody before they were sentenced. On the basis of the aforegoing, the appeal against conviction and sentence against both the appellants is dismissed. Their appeal only succeeds to the extent that their sentences should have factored the appellants’ pre-trial incarceration. Any aggrieved party in this matter should appeal this judgment at the Court of Appeal (CoA) six weeks from today with leave of this court.”