Lobatse High Court judge Stephen Gaongalelwe recently said that Hama Mapine who had appealed against a two-year-jail term for having bombed and damaged a Stanbic Bank Automated Teller Machine should consider himself lucky because he was charged with a lesser offence of malicious damage to property, which carries a maximum of five years jail term.
The judge agreed that Mapine was right when, in his appeal, he argued that he was wrongly charged with only having merely damaged the ATM willfully and out of malice when the intention was to rob the bank.
Gaongalelwe said there are other offences, such as those under Section 334 of the penal code or section 7 subsection 4 of the Explosives Act, which could have been preferred against Mapine.
The judge went on to say that, besides that all, it is his view that the evidence still encompassed the elements of the offence of malicious damage to property.
On that point, the judge said that the point does not free him in respect of the offence he is charged with. The end result, he said, was that the evidence proved the offence and proved beyond all reasonable doubt and conviction was upheld.
On sentence, he said that the Magistrate had considered all the relevant factors and imposed a sentence of two-years imprisonment. The factors he had considered in doing so, he said, were his young age and his clean record.
On Mapine’s argument that the Magistrate should have imposed a wholly non-custodial sentence or to have back dated it to the time of his first arrest, the judge said that on account of the nature of the offence and the way it was planned and executed, he found that there would be no basis for imposing a non-custodial sentence.
In assessing the appropriate sentence, the judge said the magistrate had stated that the offence they had actually intended to commit was bank robbery. The state counsel, he said, has supported the submission of Mapine that the magistrate ought to have backdated the sentence and that he had particularly stated this in his head of arguments that the magistrate had erred on this point. In fact, the judge said that this related to the point raised by Mapine himself in attacking the charge that evidence establishes something more than the offence of malicious damage to property.
On the issue of back dating of sentences as was demanded by Mapine, the judge said that while the practice of backdating sentences is no doubt recognized in his jurisdiction, it is trite that the magistrate has a discretion and that the rationale beyond practice is to ensure that accused persons do not suffer undue punishment as a result of long pre-conviction incarceration.
As already pointed out, the judge said that Mapine was lucky not to have been charged with a more serious offence which could have attracted a heavier penalty. The magistrate, he said, was alive to the fact and that is why he said the intention was bank robbery.
The judge also said that, in this case, it cannot be said that Mapine had suffered undue punishment as a result of failure to backdate the sentence for, as stated, he was lucky to have been charged with a lesser offence.
Mpho Mmolainyana represented the state at the appeal stage.