Bogosi v The State (Court of Appeal No. 42 of 1986 ) [1986] BWCA 3; [1986] B.L.R. 461 (CA) (1 January 1986)

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Bogosi v The State (Court of Appeal No. 42 of 1986 ) [1986] BWCA 3; [1986] B.L.R. 461 (CA) (1 January 1986)

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IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL NO. 42 OF 1986 CRIMINAL TRIAL NO. 49 OF 1985
In the matter between:
SETORI BAITSHENYETSI BOGOSI - APPELLANT
and
THE STATE
The Appellant In Person
Miss P. Solomon for the State
JUDGEMENT
CORAM: Mr. Justice I.A. Maisels JP, QC, Mr. A.N.E. Amissah JA, Mr. G. Bizos JA.
A.N.E. AMISSAH
The appellant was charged with three counts before the trial Judge. The first count charged her with doing an act with intent unlawfully to cause the death of another contrary to Section 222 (b) of the Penal Code (Cap. 08.01). For convenience I will describe this charge from now on as one of attempted murder. The second count was laid in the alternative. It charged the appellant with doing grievous bodily harm contrary to Section 235 of the Penal Code. The victim of the offence was the same person as was the subject of the attempted murder charge. The purpose of the charge was to secure a conviction for the lesser offence in case the charge of attempted murder was not

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substantiated. The third count charged the appellant with arson ^;

contrary to Section 330 (a) of the Penal Code. ^!
On proof of the third count there was no difficulty at any stage of the trial, as it was common cause between the prosecution and the '. defence that the appellant set on fire the hut in Molepolole in which Ben Chituka and herself lived together as man and wife. But the appellant disputed the first and second charges.
The facts found by the learned trial Judge with respect to these two disputed charges are that the appellant set the house on fire while Ben Chituka was inside; that she knew that Chituka was there sleeping, but nevertheless locked the door with a padlock, which she had done after taking her own child out; that Chituka suffered severe burns to his body and escaped only by breaking a hole in the roof and pulling himself out with the aid of rescuers. The Judge concluded that on those facts, the appellant had the requisite intention to cause the death of Chituka, found her guilty on the charge of attempted murder, and convicted her.
Having done so, the Judge did not find it necessary to proceed to a conviction on the alternative charge of doing grievous harm to Chituka;.
The appellant makes no complaint as to the convictions for i attempted murder and arson. She comes before us with an appeal to exercise leniency as the sentences imposed on her were, in her circumstances, too severe. The circumstances she gives, two children and an aged mother who depend on her, are not uncommon in cases involving relatively young women, like her. But her appeal raises the issue whether the sentences imposed after conviction should stand.
Pointing out, and we agree with him on this, that what the appellant did was thoroughly wicked, that she had ruined the health of

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Ben Chituka, and that if she had had her way she would have ended Ben Chituka's life through a horrible and painful death, the learned Judge concluded that her conduct merited severe punishment. The Judge then continued:
"The sentence I am about to pass is only partially passed as a deterrent. I can pass a sufficient deterrent sentence by sentencing you to a long term of imprisonment. I however feel that in the circumstances of this case, to do so would not be in your interest. One of my functions is to protect the public and I believe that there is a substantial risk of you reoffending. This is based on your propensity for violence in the past, possible instability in having attempted suicide in June, 1982, and the sheer callousness of your behaviour in relation to the matters for which you are standing trial before me. You are yet very young at 24 and it may well be that maturity will enable you to grow out of what seems to be an uncontrollable temper. It is therefore primarily for the protection of the public rather than to punish you that I pass the sentence that I do on count 1. For this offence you will go to prison for life."
As I said earlier, we share in the learned Judge's abhorrence of the terrible act done by the appellant. But what are these factors on which the learned Judge relied as compelling him to impose the maximum sentence provided by the law for the offence?
The Judge mentions the appellant's propensity for violence. Between 1976 and 1981 the appellant had appeared in the Traditional Courts on no less than six occasions, on five of which she had been charged with assault. The maximum sentence imposed was 6 months imprisonment in 1980 but with the others she was either cautioned and

discharged or fined various sums ranging from 5 to 100 pula. They could not have been serious cases of assault. They do show that the appellant is short-tempered. And though one can describe any assault as an act of violence, it seems to me that there is a vast difference between common assaults of the kind indicated in the appellant's previous record, and acts done deliberately with intent to kill. To say, therefore, in a case of attempted murder that there is a substantial risk of the appellant re-offending because of her proven propensity of assaulting others, especially when the last known signification of such proof was several years before, and therefore the public needs protection from her, is unduly severe, I think taking such matters as the substance of the previous convictions into account when the learned Judge himself had opened his decision on sentence with the words:
"The first thing I would like to say is that the sentence I shall pass on you is not passed because of the offences committed in the past, the last of which was five years ago."
was wrong.
In taking this view, I am not unaware of the position in
English law as indicated in Archbold, Criminal Pleadings, Evidence and
Practice 41st Edition, paragraph 5-31 that a sentence of life
imprisonment may be imposed if there is clear evidence of mental
instability which indicates that the person is likely to be a danger
to the public. So in the case mentioned in Archbold, that is,
Rv. Pither (1979) 1 Cr. App. R. (S) 209, the Court emphasized that
in order to justify a life sentence in cases other than homicide
there must be exceptional circumstances, and one of the most usual js

the existence of a marked degree of instability which may or may not amount to mental disorder under their Mental Health Act, 1959.
But there was no such evidence of mental disorder in this case. Practically at the end of the case the proceedings were adjourned and the question of the appellant's mental health referred to a medical officer. When the medical officer was recalled, the Judge made it plain that he wanted the medical officer's assistance because he was concerned about the risk of the appellant's behaviour being repeated. The doctor was firm in his view that although he had interviewed her several times he had found no abnormalities in her. The point was highlighted by this exchange between Judge and doctor:

Judge: So the answer is you are confident in your diagnosis that there is no underlying psychiatric disease?

Doctor: No there is no underlying psychiatric disease my lord.
With that, the basis of imposing an indeterminate life sentence on the
ground of mental instability and the risk of repetition of the type of
crime charged which made it necessary to protect the public, disappeared.
As I have said before I am unable to accept that a series of minor
assaults in the past is necessarily evidence of a propensity to repeat
acts of arson, or any other acts, with intent to kill.
Apart from the gravity of the offences committed by the appellant,
her callousness, and the need to protect the public from a person with
the appellant's violent propensities, one other consideration which the
Judge took into account in imposing the life sentence, was the
appellant's possible mental instability displayed by her having attempted
suicide in 1982. But that does not seem to me to be a proper reason for

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the imposition of a life sentence for the type of offence committed by the appellant. For one thing, the medical officer's evidence really disposes of this point. But otherwise, what, in my view, the appellant needs in case of instability which does not pose a danger to the public is treatment not imprisonment. And for all we know, if there is, indeed, this instability, an indeterminable sentence may aggravate rather than alleviate the condition.
It would appear that the learned Judge had imposed the life sentence in the full expectation that the appellant would not have to serve anything near it. Because after pronouncing the sentence, he proceeded thus:
"What this means is that your behaviour in prison will be periodically reviewed with a view to assessing an appropriate time to release you. In reaching a decision as to when you will be released, regard will be had to what I said in my judgement convicting you, what I am saying now and reports will be made upon you by the prison service during the course of your incarceration. It may be that in the not too distant future a decision to release you on licence can be reached."
I think it would be far better for a Judge seized with a case to
pronounce what sentence he thinks the case deserves. To take into
account considerations like what remission the convicted person would
earn in a determinate sentence leads to the imposition of some sentence
other than what the judge thinks proper for the particular case, in other
cases such as the one before us, it would appear as if the Judge is
abandoning his sentencing discretion to the prison authorities.
As Goddard, L.C.J, said in the case of Maquire and Enos (1956) 40
Cr.App.R.92 at page 94:

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"A prisoner has/ prospect and a hope     ^]
of remission, but the question of remission
is not to be taken into account when     '[
sentence is being imposed
As a general rule, courts, should not take that matter into account, but should give the sentence which they think the gravity of the offence deserves."
In my opinion, even in the most serious cases, where a
penalty of life imprisonment is possible, the Judge should impose
such a sentence only if he thinks the offence merits such
and not base the punishment punishment/on the consideration that the person might not serve
any substantial length of imprisonment at all, if only he or she
were to impress the prison authorities with good conduct.
On the offence of arson the learned Judge passed a concurrent sentence of 7 years imprisonment. A concurrent sentence in a case like this where the two charges arise from the same act or transaction cannot really be objected to. The rule against double jeopardy, as I understand it, is not that a person should not be charged with two or more offences, if those offences arise from the same act or transaction, but that he should not be punished twice for the same offence. When the one act gives rise to more than one offence, the alternative open to the prosecution is to charge the most serious offence and leave the others, and this is usually done when the prosecution is confident of its case on that one count, or to charge the various offences disclosed by the act as separate counts. But in the latter case only one sentence needs be imposed as the offences arise from the same transaction, or if separate sentences are imposed, they must be made concurrent.
What may be objected to in this particular case is that the arson, which was really the means of commission of the attempted

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murder had a separate sentence, in itself of considerable severity, imposed and made to regulate the length of the expected sentence to be served for the more serious offence. To explain further, this is how the learned Judge put it:
in relation to Count 3, the arson
count, I shall pass a convenient sentence that reflects my view as to the absolute minimum term of imprisonment which you should serve on Count 1. Only when you have served that sentence, I hope, after remission for good conduct has been taken into account can the question of releasing you on licence be considered. On Count 3 you must go to prison for 7 years."
It seems to have escaped the notice of the learned Judge that if he
were taking remisssions into account, and I have already stated that
as a general rule this is undesirable, that this 7 years imprisonment
may also be subject to remission for good conduct. But that is
not the real point I am making. Compared with the attempted murder,
the arson was only the means, and in any case was much less serious.
In the circumstances, the penalty of 7 years was disproportionate and
manifestly excessive and should not have been used as the learned
Judge's measure of the sentence which the appellant should serve on
the conviction for attempted murder.
In my opinion, for the raaoaBO, above reasons, I would set aside
the sentences. What should we substitute? This is not an easy case.
As indicated above, we share the learned Judge's view that the
appellant's act was thoroughly wicked and designed to cause a
horrible and painful death. But we have also noted the Judge's view
that it was an act decided upon on the spur of the moment in a
moment of blind rage. I think in the circumstances of this case the
sentence called for is a determinable sentence. I am of the view

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that the appropriate sentence should be ten years imprisonment for the attempted murder and two years imprisonment for the arson, both sentences to run concurrently.
One last point: it will be recalled that the appellant was indicted on three counts, one of the counts being laid admittedly as an alternative to the count on attempted murder. The learned Judge in his judgement said he need not return a verdict on that count. We agree. In passing sentence, he said he passed no sentence on that count because he had ordered that it should lie on the file. He could not have passed sentence on the count anyway because there was no conviction on it. But the more important point is that ordering that a charge should lie on the file is an English practice which is not found in Botswana. We do not think that Botswana should begin to develop that practice and we would accordingly say that it should not be followed. The appropriate order to make upon the conviction on the charge attempted murder is to dismiss its admitted alternative. We so dismiss it.

JUDGE OF APPEAL

I agree
I agree
I.A. Maisels JUDGE PRESIDENT

G. Bizos
/J JUDGE OF APPEAL

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