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Lejony v The State (Criminal Appeal No. 23 of 2000) [2000] BWCA 20; [2000] 2 B.L.R. 145 (CA) (28 July 2000)
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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 23 of 2000
[High Court Criminal Committal No. F9 of 1999]
In the matter between:
ONTSHABETSE LEJONY
Appellant/Respondent
v.
THE STATE
Respondent/Appellant
P. Kgalemang for the Appellant/Respondent
Mrs L.I. Dambe (with Mr. Busang and Mr. Kaang) for the Respondent/Appellant
JUDGMENT
CORAM: AMISSAH P. AGUDA J.A. STEYN J.A. KORSAH J.A. FRIEDMAN J.A.
AMISSAH P.
Ontshabetse Lejony was tried and convicted of defilement of a female under 16
years of age contrary to section 147(1) of the Penal Code [Cap 08:01], as
amended by section 8 of the Penal Code (Amendment) Act 1998 (Act No. 5 of
1998). The conviction was recorded by the Magistrate's Court at Francistown on
2 August 1999. Under the amended section 147(2) any person convicted of such
offence shall be required to undergo a Human Immune-system Virus (HIV) test.
Where the test is positive, the convicted person is liable, under section 147(3)(a)
2
of the amended Act to a minimum sentence of 15 years imprisonment, with or without corporal punishment, if proved that he was unaware
that he was HIV positive. Lejony tested positive. There was no evidence that he was aware at any time before the test that he was HIV positive. The
Magistrate, whose sentencing power did not extend to imposing a penalty of 15 years imprisonment, committed Lejony to the High Court under section 296 of the Criminal Procedure and Evidence Act [Cap 08:02] for sentence. The case thereupon
came before Mosojane ].
In a considered judgment, Mosojane ] came to the conclusion that he was not
entitled to impose the minimum penalty of 15 years imprisonment. This conclusion
was based in the first place, on the fact that the document certifying that Lejony
was HIV positive, did not state whether Lejony had the HIV syndrome at the time
he committed the offence; and secondly, on the reasoning which was embodied in
two passages of his judgment. It reads as follows:
"It seems to me clear without room for doubt at all that the legislature intended to punish those people who were HIV positive
but were unaware of their status at the time when they committed the offence and not everybody who was found with the disease after conviction regardless of whether or not they carried the disease when they committed the offence. To punish them just because they are found to be HIV positive after conviction would be absurd and the
language of the subsection permits no such construction in my judgment".
That led to the observation he later made that:
"Finally, I wish to remark that the possibility exists in this case, as always it will, that the accused got his HIV status,
if he has it, from
3
his victim. The law does not say that he should be punished for that. He would however be punished if he was HIV positive though unaware of it when he committed the offence. This is what I understand the law to be saying. Therefore, in the view that I have taken, unless a court is satisfied that the convicted person was HIV positive though unaware of it at the time of committing the offence it has no right to punish him under subsection 3[a] of section
147 of the Penal Code/'
Accordingly, the learned Judge imposed the minimum sentence prescribed by section 147[1] of the Penal Code, as amended, for defilement
of a female by a person who did not have the HIV syndrome, that is, 10 years imprisonment.
The State disagrees with this interpretation of section 147[3][a], and has appealed against it to this Court. Lejony, on the other hand, has appealed on the fact found by the trial Magistrate that he, Lejony, had no reasonable cause to believe and did not in fact believe that the victim was under
the age of 16 years of age.
Taking the appeal by the State first, the grounds filed were no less than seven.
They were as follows:
" 1. The High Court judge erred by placing or determining the HIV status of an accused person at the time of the commission of the offence, when the Act refers to the status of the accused after conviction.
2.
The Honourable judge erred when he made an assumption that because the complainant had been sexually active, the possibility of accused person being infected with the HIV virus by complainant could not be ruled out.
3.
The Honourable judge erred in not imposing the minimum sentence prescribed by the Act subsection 3(a) of section 147 of the Penal Code.
2.
4
3.1 Despite agreeing that the language was clear in its intent and that the court was duty bound to impose the minimum sentence, the
court failed to do so.
4.
The Honourable judge erred when he referred to the time when the offence was committed as opposed to the relevant period which is after conviction. The Act does not refer to the time when the offence was committed.
5.
The Honourable court erred in imputing into the language of the Act, that which the Act did not intend i.e. by implying that the Act
did not intend to punish accused persons for being HIV positive after conviction, but intended to punish accused persons for being HIV positive at the time of the commission of the offence.
5.1 Had the legislature intended to punish accused persons for their status at the time of the commission of the offence, it would
have stated that.
6.
The Honourable judge erred in concluding that the material time of awareness is contrary to the stated intention of the legislature.
7.
The Honourable judge erred in concluding that where the accused got the HIV virus from the victim (complainant) then minimum sentence cannot be imposed."
They all revolve round the single issue arising from the interpretation placed by
Mosojane ]. on the amendment to section 147 of the Penal Code, in so far as he
concluded that the accused must be shown to have had the HIV syndrome at the
time of the offence, and not merely at the time of test after conviction.
The arguments canvassed on this question were exactly the same as this Court considered in Dijaje Makuto v State [Criminal Appeal No 31 of 1999] in
which judgment was given today. In that case, Counsel for the appellant relied on
5
the decision of Mosojane J. in this case. We expressly approved of the reasoning of Mosojane J. In this case, I think we should apply
the reasoning of this Court in the Dijaje case. I think on that account that the submission of the State that this Court should adopt the broad interpretation which makes the
person convicted for the offence liable of rape or defilement to the enhanced punishment of 15 years, whether he had the HIV syndrome
at the time of the offence or not, must be rejected. The decision of Mosojane ] in this case was right and I would as a result, dismiss the appeal of the State.
That leaves us with Lejony's cross-appeal. That was against both conviction and sentence. The arguments advanced with respect to the appeal on conviction centred round the age of the victim. The offence charged
is one which is committed only where the female victim is under the age of 16 years. It was the case of Lejony that he had reason
to believe that the girl was above the prohibited age limit. Counsel for Lejony submitted that the doctor's examination showed that
she was sexually experienced; that the girl had been frequenting bars and was well aware of the life which that kind of conduct led to; that the association between the Lejony and herself was not a one-off attack by Lejony on her, but that the two of them had been living together over a period of time;
and that their living together was not objected to by the girl's parents, at least, not until it appeared that she was pregnant. Besides, argued Counsel, the prosecution witnesses' evidence on the age of the girl varied between 14 and 15, and that these
ages were not far off the age
6
limit of 16 years. Lejony, it was submitted, had thought that although the girl was small in size, she was a grown up woman.
It has always been a defence, and this defence is repeated in subsection (5) of the
amended section 147 of the Penal Code, that:
"(5) It shall be a sufficient defence to any charge under this section if it appears to the court before whom the change is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age of 16 years or was such charged person's spouse/'
Although the submission was made that Lejony had been living together for some time with the victim, it was at no time suggested that
the victim was his wife. And although the evidence of the prosecution as to the victim's age may have varied, none of its witnesses stated her age to be 16 years or above. It was noticeable that Counsel for Lejony was careful to avoid fixing an age to the victim, proffering the expressions that to Lejony the victim appeared "grown up" or "mature", whatever the exact meaning of those expressions. In the end result, it was to the court which tried the charge that the statute conferred the duty of finding whether the person charged had reasonable cause to believe and did in fact believe that the victim was of or above 16 years. The fact that the couple had been living together over a period of time or that the victim consented to the act charged, was really irrelevant. The law was enacted to protect girls below the age of 16 years, whether they consented to sexual intercourse or not. The Magistrate's Court found, judging from the evidence and the looks of the victim, that Lejony could neither have had that
7
belief, nor did he in fact believe that the victim was 16 years or above. I have no reason to disagree with that finding. Accordingly,
the appeal against conviction on this ground is dismissed.
The appeal against sentence was basically on two grounds. The first was on the stock ground that the sentence was so severe as to induce a sense of shock. But we are now dealing with a minimum sentence imposed by the legislature. However much we, as judges, may dislike the imposition of minimum sentences by statute, they have been used by the legislature as a tool for the fight against the incidence of serious crime. And for as long as they remain on the statute book, judges have to apply them. The second ground on which the appeal against sentence was argued was the constitutional validity of the amendment of section 147[1] of the Penal Code, as it took away the discretion of judges in sentencing. This argument was not seriously pursued. The position that Counsel for Lejony eventually adopted on the constitutional issue was no different from that which had been adopted by Counsel for the appellant in Dijaje Makuto v. The State. I have had occasion to refer to that judgment with approval earlier on in this case when dealing with the appeal of the State. As I then said, Mosojane ]'s approach is the correct one. The appeal against sentence is, accordingly, also dismissed.
In the event, both the appeal by the State, and the cross-appeal by Lejony against his conviction and sentence, are dismissed.
Delivered In open court at Lobatse on 28th July 2000.
A.N.E. AMISSAH [PRESIDENT]
I agree:
I agree:
I agree:
I agree:
T.A. AGUDA [JUDGE OF APPEAL]
J. H. STEYN [JUDGE OF APPEAL]
K.R.A. KORSAH [JUDGE OF APPEAL]
G. FRIEDMAN [JUDGE OF APPEAL
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