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Gare v The State (Criminal Appeal No. 9 of 1982 ) [1982] BWCA 7 (6 December 1982)

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authority, or for the purposes of any airport or air service or any supply of water or electricity to any person or community or person, or in the performance of any other service essential to the life of the community, is guilty of an offence and -
(a)      if the offence is committed with intent to endanger life or with the knowledge that it is likely to endanger life, is liable to imprisonment for life; arid
(b)      in any other case, is liable to imprisonment for ten years.
The side note to Section 3^1 reads compendiously: "Sabotage",
Appellant was convicted and sentenced to two and a half years imprisonment.
An appeal against conviction and sentence to the High Court failed. Appellant was out of time granted leave to appeal to this Court against sentence only.
The facts are shortly that in the early hours of the morning of the 6th of November, 1981 the appellant, a Botswana Power Corporation employee at the Selebi Phikwe Power Station, without authority operated the emergency trip button on each of three turbines, thereby cutting off the supply of electricity to Selebi Phikwe and Francistown.
It will be seen that the intei. . charged was to impede
the working of property used     for the purpose of supply
ing electricity to Selebi Phikwe town.
The effect of the evidence is thus summarised by Hannah,J. in the appeal to the High Court. "That the appellant did in fact impede the working of the turbines by operating the trip buttons is beyond doubt. In my view there is equally no doubt n the evidence that in operating the trip buttons the appellant must have had the intention to impede their work.

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It is unnecessary to look further than his own evidence. He repeated time and again that what he was trying to do was, 'to put lights out - that he wanted to put the lights out¹. At the time he was doubtless under great strain and emotional stress having received information, false as it turned out, that his parents had died in an accident and in consequence had drunk a substantial amount of alcoholic liquor. It may be that he had no clear reason in his mind for what he was doing and had no clear idea of the enormity of the consequences of his actions. But despite all this the evidence more than justified a finding that he was aware of his actions, was not suffering from automatism, was capable of forming an Intent despite the consumption of alcohol, and indeed that he did intend to interfere with the workings of the turbines."
In my view the learned Judge's approach was right. This was an absolute offence for which the only mens rea required was the prohibited physical act controlled by a mind that was conscious of what appellant was doing. It was not necessary to prove that appellant was aware of the possible consequences.
On sentence the learned Judge .did:
"As to sentence, the appellant clearly presented the Magistrate with some difficulties. He was a young man of twenty-five years who had impressed his employers as an excellent workman, was due for promotion and had an excellent character. Faced with a crisis in his personal life he was however, unable to cope. He committed an act which caused enormous inconvenience to the general public and very substantial economic loss to the mine at Selebi Phlkwe. In doing so he also put an end to his promising career with the power corporation. The learned Magistrate considered all these matters when passing sentence. An immediate custodial sentence was undoubtedly called for. It must be realised that if any one is minded to disrupt supplies such as electricity or water, punishment of a sub-

k
stantial kind must inevitable follow. A term of two and a half years in my view Is neither unreasonable or wrong in principle. I have considered whether it would be appropriate to suspend part of the sentence imposed but can find no Justification for doing so. The main purpose of suspending a sentence or part of a sentence is to deter the offender from committing offences in the future. He is put on notice that should he offend again within a certain period of time he would go to prison. In my view such method of sentencing would serve no usual purpose in the case of this appellant. If he were to commit a similar offence the probabilities are that this would be a result of yet another emotional crisis and I do not think that having a suspended sentence hanging over his head would act in any way as a deterrent. So far as I can see normally he is a law abiding citizen. In these circumstances I confirm the sentence and dismiss the appeal."
However, the doctrine of mens rea implies that punish -ment should so far as possible take account of and fit the wickedness of the wrong-doer's mind, rather than the consequences of his act; although the consequences cannot be ignored. It was not shown that the serious human and economic consequences, potential and actual, were present to the mind of the appellait. It is probable that all the appellant had in mind was to plunge the township into darkness. He probably intended to vent his own distress of mind upon others by inconveniencing them. As the learned judge pointed out, appellant was faced with a crisis in his personal life with which he was unable to cope. Moreover he was already in liquor.

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I agree:
I.A. MAISELS
Judge President

I agree:
J. A. O'BRIEN QUINN Chief Justice

LOBATSI 6.12.82

IN THE COURT OF APPEAL OF THE
REPUBLIC OF BOTSWANA

The appellant's wife,with whom he had had five children,left the matrimonial home with a view to divorcing the appellant,apparently on account of his assaults on her, about a week before the incidents leading to her death* The appellant visited her at her parents* home with a view towards persuading her to return and rohabit with him in the matrimonial home , but she refused. Again the appellant went in search of his wife but>after a long discussion ,she still refused. The appellant, in his confessional statement, said that he had followed her into her parents* hut seeking to have sexual intercourse with her but that she had refused and he had followed her out again_fstill begging but she still refused. He followed her in again and she still refused and when he tried to kiss her she also refused and he stabbed her with a knife once and on her running from the hut he stabbed her again*
The learned former Chief Justice, in passing sentence said:
"Your Counsel has made strong submissions that in committing the murder you were under considerable strain andtthatcthis provides extenuating circumstances. He has asked that you should not be sentenced to death. I accept these submissions and I refrain from imposing the death sentence. I sentence you to a term of 15 years* imprisonment."'
?

In so saying, he gave no reasons for the passing of a sentence of 15 years* imprisonment. He only gave reasons for not passing the death sentence* It could be said, also, that he took account of the considerable strain under which the appellant found himself. However, a trial judge in passing sentence, particularly in a capital case, should give his reasons for not passing the death sentence and, in addition, should give the reasons for passing any custodial sentence other than the death sentence.
In this Instant case, the learned former Chief Justice did not give his reasons for passing the sentence of 15 years* imprisonment and thus, I am of the opinion, it can be said, that, following the words of Van Winsen A.J.A. in S v Fazzle and Others 1964 (4) S.A. 673 (A.D.) at page 684 where he said:
Where, however, the dictates of Justice are such as clearly to make it appear to this Court that the trial Court ought to have had regard to certain factors and that it failed to do so, dr that it ought to have assessed the value of these factors differently from what it did, then such action by the trial Court will be regarded as a misdirection on its part entitling this Court to consider the sentence afresh.",
this Court is entitled to consider the whole question of the length of the custodial sentence afresh.
*

Thus, having taken all the factors. Including the wife's attitude to the appellant, her refusal to cohabit, or have sexujtl relations, with hlo, his age, of 52 years, and the fact that the stab wounds were inflicted in the heat of passion engendered by the wife's attitude, I consider that the proper sentence should be 10 years' imprisonment to run from the date of conviction, namely 7th February, 1979
The appeal against sentence is, therefore, allowed and the sentence reduced from 15 years' to 10 years' imprisonment to run from 7th February, 1979.
GIVEN at the Court of Appeal, Lobatse, this 6th day of December, 1982.
J. A. O'BRIEN QUINN Chief Justice
I agree  ....
I. A. MAISELS Judge President

I agreei        
J. R. DENDY YOUNG
Judge of Appeal

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