The court of appeal is on July 29th expected to pass judgement in a case in which a convicted murderer is appealing against a fifteen year jail sentence handed down by High Court Judge David Newman.
Baboni Motlhale was sentenced to fifteen years in prison for murdering Dikgaka Morolong at Letlhakane cattle post after a drinking spree on the night of August 1 2005.
When appealing against the 15-year sentence, attorney Khomo Motse said Justice David Newman did not consider the mitigating factors advanced by the appellant, primarily the fact that he is HIV positive.
However, the three Court of Appeal judges, Justices Stanley Moore, Moses Ramodibedi and Craig Howie, said Justice Newman was at liberty to use his judicial discretion to pass sentence. They added that the onus is upon Motlhale to prove that the judge used improper basis to pass the sentence.
Khumo Motse insisted that the defence attorney had during mitigation implored the judge to be lenient on Motlhale as he is HIV positive.
“The judge failed to expressly consider the fact that the appellant had pneumonia and gastric difficulty when passing judgement,” he said.
Justice Ramodibedi told him that a verbal pronouncement of one’s HIV status, without any substantiated evidence, does not in any way help the accused in mitigation.
“The judge may take such an unsubstantiated pronouncement at face value or disregard it as a self serving statement meant to support mitigation. It is important to support such claims with medical proof, otherwise the judge is at liberty to use his own discretion,” he said.
It, however, later emerged that Justice Newman had indeed taken note of Motlhale’s HIV status, and also considered other social factors that were in favour of Motlhale’s mitigation.
In his judgement, Justice Newman said it was evident that Motlhale and Morolong had been consuming copious amounts of alcohol from morning until evening. The deceased was even worse off, as he eventually passed out. Although the deceased did not initiate altercation at the time of his death, the court found that there was evidence that he had made a nuisance of himself before, which angered the accused.
An irate and heavily intoxicated Motlhale would later lift the comatose Moroplong’s head and thrust his knife 7.5 centimetres into his neck, causing instant death.
Justice Newman ruled that the deliberate manner in which Motlhale killed Morolong rules out any argument that he had no subjective intention to cause death, insisting that death was the intended outcome.
He nevertheless found that Motlhale’s intoxicated state of mind negatively impacted on his reasoning and seriously impaired his judgement.
“It is for this reason that I find the existence of extenuating circumstances warranting the imposition of a sentence other than death” he said.
However, said Justice Newman, intoxication is not a strong enough extenuating factor to warrant exoneration. He cited Justice John Tebutt’s ruling in the case involving Kealotswe Daniel versus the state. In his judgement, Justice Tebbutt said unrestrained debauchery caused by over consumption of alcohol has become a frequent feature of murder.
“The resort to violence by persons affected in this manner needs to be curbed, and the courts can assist by passing sentences of suitable severity” he said. Justice Newman then sentenced Motlhale to 15 years in prison.