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Oatlhotse v The State (Criminal Appeal No. 1 of 1988 ) [1988] BWCA 14; [1988] B.L.R. 232 (CA) (4 July 1988)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 1 of 1988 High Court CT 25 of 1987
In the matter of:
ELIZABETH THEGIRL OATLHOTSE
Appellant
vs
THE STATE
Respondent
Mr. E. L. Segaetsho for the Appellant Mr. S. A. Afful for the State
JUDGMENT
Coram: A.N.E. Amissah, JP. B.A. Doyle, JA. G. Bizos, JA.
BIZOS, JA.
The appellant was convicted of infanticide contrary to the provisions of section 312 of the Penal Code and sentenced to 4 years'
imprisonment of which 2 years was suspended for a period of 3 years on certain conditions. She was in custody from the 14th April,
1987 to the time the appeal on sentence was argued. As the court was of the view that the whole of the period of any sentence imposed
on her should have been suspended an order reducing her sentence to 2 years' imprisonment the whole of which was suspended on the
same conditions was made at the end of the argument on appeal. These are the reasons for that order.
The appellant, a twenty-four year old typist and mother or three children was the main breadwinner of an extended family of 10, seven
of whom were young children. Her father was
2
unemployed, her mother was an invalid and the father of her three children had deserted her. He was not contributing to their maintenance. During the latter half of 1986 she formed an amourous association with another man. To her horror she became aware
that she was pregnant. The father of what would have been her fourth child was not interested. He went out of her life as soon as he was told of the pregnancy. In her evidence she admitted that she did not want a fourth child as she was hardly able to keep the three she already had. She went as far as to say that she wished it would not be born alive. She did not disclose the pregnancy to anyone in her family. Although no direct statement is to be found in the record she probably did not tell her employer. The reason cannot be difficult to infer. The possible loss of employment and parental disapproval of the pregnancy must have weighed heavily in her mind.
On 13th April, 1987 a male foetus weighing between one and one-point-one kilograms and an estimated gestational age of twenty-four weeks was found in a pit latrine at the appellant's home by her cousin who caused the matter to be referred to the police. They removed the foetus to the hospital where an experienced nurse cleaned it and administered medication prescribed by the medical officer telephonically. The condition of the foetus was critical. He was gasping for breath. The infant remained alive for about three hours. Being kept in an incubator and oxygen having been administered could not save him.
3
The doctors and nurse who gave evidence were agreed that the prospects of survival were very remote. One of the doctors said that when such a birth takes places away from a well-equipped hospital the chances of survival are nil. Even when born in a very well-equipped hospital (the hospital the infant was taken
to was not one of them) the prospects are remote.
The cause of death was determined as respiratory failure. The abandonment of the infant in the pit latrine was at least a contributory cause of death. The inevitablility of death was not relevant on the merits. There was no appeal before us against the conviction. The evidence as a whole supports that finding. The evidence of the appellant that she did not know that she had given birth to an infant was in my view correctly rejected by Barrington-Jones A.C.J.
The learned Judge a quo was not unsympathetic to the plight
of the young woman. The mitigating factors enumerated by her
Counsel must have been present in his mind even though he did
not enumerate them in his judgment on sentence. The only
reasons enunciated by him are:
"You have been convicted of the unlawful killing of your infant child and I should tell you that the maximm sentence for infanticide
is life imprisonment. The law protects the sanctity of human life, irrespective of the age of any person, so that to kill a child is no less a matter in the eyes of the law than to kill an adult.
In considering sentence in your case, I find that the most aggravating factor is that upon your return from a visit to the shops when
you saw the police and people at your home, you ignored them, and went to your room - well knowing that your baby was about to be discovered in the pit latrine. That, to my mind, shows your callous disregard for the
4
fate of this unfortunate child.
In taking account that you have been in custody since the 14th April, 1987, I sentence you to four years' imprisonment, of which two
years will be suspended for a period of three yars on condition that you are not convicted of the offence of infanticide, concealment of birth, or any offence which involves a breach of duty towards a child."
No exception can be taken to the two general statements in the first paragraph. On the facts of this case however the second paragraph constitutes a misdirection which in my view entitled the Court of Appeal to set aside the sentence imposed by him
and substitute the sentence imposed by us at the end of the hearing.
As was pointed out by the Judge a quo that even though the appellant at times during her pregnancy harboured thoughts of doing away with the foetus he was not able to find that she held that settled intention at the moment of the sudden delivery of her premature baby. The appellant was correctly found to be an unsatisfactory witness but there are certain facts she deposed which are corroborated by other evidence. Pains come on which she originally mistook for stomach cramps. She started bleeding from the vagina when she was on the pit latrine, she lost a considerable amount of blood and went to the latrine a number of times. She became weak and confused. There was no suggestion that she is anyway attempted to induce an abortion on herself. She did not infere the foetus in anyway. There is no evidence that the foetus cried immediately after birth. Despite her denial she
knew that she had given birth. She is the only one
5
who could have cut the ambilical cord and removed the placenta. She went to the shops to buy pads to control the bleeding. On her return the police had arrived.
The Court a quo considered her ignoring of the police and others as "a most aggravating factor." The appellant's conduct at this stage is consistent with her earlier conduct. In her confused mind she probably considered that she had undergone an uninduced abortion of so premature a child that it had no prospect of survival. In my view the Court a quo misdirected itself in holding that it showed "callous disregard or the fate of this unfortunate child."
In my view therefore this Court was at large to impose the sentence which in its view was appropriate.
The crime of infanticide contrary to the provisions of section 213 of the Penal Code is punishable as if the mother of the infant is guilty of manslaughter which in terms of section 206 of the Penal Code provides for imprisonment for life. It is a serious offence for which a lengthy term of imprisonment may be called for depending upon various circumstances. Neither Counsel for the state nor the appellant referred us to any case in which the prevalance or otherwise of the offence or any general sentencing policy were discussed.
Various reasons have been expressed for sentencing those guilty of infanticide from those convicted of murder of manslaughter. There
may be debate about the correctness of them. See Smith and Hogan "Criminal Law" 14th Ed. (1978) p. 338. There is, however, unanimity that the responsibility o
6
the mother is reduced by the disturbance of her mind caused by
the stress of the birth.
Rooney J. in the case of State v Collet Mothibi 1974-75
B.L.R. 21 at 28 is reported to have said:
"The law protects the sanctity of human life, irrespective of the age of any living person. To kill a child but a few minutes old is no less a matter in the eyes of the law than to kill an adult. I am aware that during past
years, a number of cases of this nature have been brought before the Subordinate Courts. There has been a tendency on the part of some magistrates to deal leniently with offenders.
My assessors assure me that many cases involving the death of children go undetected. For this reason, we have resolved upon a sentence which shall bring home to the accused the enormity of her offence and may underline that in future people who are found guilty of child murder (because that is all it is in plain language) should not expect to receive sympathy from this Court."
Beadle, CJ in S v Rufaro 1975 (2) 387 (R, AD) sets out the at 387 G - 388 H factors which ought to be taken into consideration.
It would appear that sentences in infanticide cases like manslaughter cases may vary from a wholly suspended sentence to imprisonment of up to as much as ten years.
In quoting the above cases I do not want to be understood that the factors mentioned are considered as exhaustive. Although they may serve as a useful guide it should always be rembered that each case must be judged on its own merits.
In the present case these are the following factors whih influenced us not to confirm the custodial portion of the
sentence:
7
(a)
Although this was not the appellant's first child she is comparatively young.
(b)
The father of the child she was bearing disappeared and could not be looked to for the maintenance of the child.
(c)
The poor circumstances of her extended family would have become much worse particularly to the disadvantage of her own children as she would probably have lost her work as a typist.
(d)
She had not the trust or confidence of an older more experienced woman to whom one could turn for advice, understanding and comfort when she became aware of the unwanted pregnancy.
(e)
The premature birth which was probably by her as an non-induced abortion rather than the birth of a child.
(f)
The foetus' prospects of survival were probably assessed by her as very slight having regard to the short period of gestation and its minimal size.
(g)
Her mental state induced by the shock of the premature birth, the loss of blood and other depressing factors present.
Taken together these circumstances persuaded us that we
would not have imposed a custodial sentence and that is why we
made an order which had the effect of her immediate release from
custody at the end of the hearing of the appeal. One of the
conditions imposed by the court a quo was that she should not
during the period of suspension commit "any offence which
involves a breach of duty towards a child. I am of the view
that the condition is too wide. A slap on the face of any child
may lead to a conviction of assault. I do not think a suspended
sentence of two years should come into operation in those or
similar circumstances.
8
The sentence imposed is set aside and the following
sentence is substituted:
Imprisonment for a period of two years' suspended for a period of three years on condition that she is not convicted of infanticide, concealment of birth or any other offence against any child where a custodial sentence of more than 3 months is imposed.
G. BIZOS
Judge of Appeal
I agree
-ftrNTET^MIS^H^T Judge President
I agree
B.A. DOYLE Judge of Appeal
GIVEN at Lobatse this 4th
day of July, 1988.
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