Coram:
P. H. TEBBUTT, J.P.:
F. H. GROSSKOPF, J.A.:
M. M. RAMODIBEDI, J.A.:
TEBBUTT, J.P.:
1.
The cumulative effect of two sentences of 10 years’ imprisonment on a count of armed
robbery, and one of attempted robbery passed in two separate trials has brought this appeal before this Court, leave having been
given to the Appellant by the Court to appeal against his sentence.
2.
The Appellant, who is a citizen of Zimbabwe, was convicted in the Magistrate’s Court sitting at Broadhurst in Gaborone on 17
June 1999 of armed robbery and sentenced to 10 years’ imprisonment. The offence was committed on 3 May 1998. Following his
conviction on 9 July 1999 in the Gaborone West Magistrate’s Court on a charge of attempted robbery contrary to Section 293(2)
of the Penal Code (Cap 08:01), he was sentenced on 14 July 1999 to the mandatory minimum sentence prescribed for that offence by
the Penal Code of 10 years’ imprisonment. That offence was committed on 21 December 1998. He was on the evidence correctly
convicted and also correctly sentenced by the Magistrate.
3.
Remarking that there was no relation between the offences, they having been committed five months apart from one another, and even
though they were of a kindred nature, the Magistrate declined to order that they should run concurrently but ordered that they run
consecutively.
4.
No fault can be found with the decision of the Magistrate in this regard, nor of the decision of the High Court, to whom the Appellant
appealed in the first instance, which confirmed the sentence.
5.
The Appellant is as a result, however, presently serving an effective sentence of 20 years’ imprisonment and this Court gave
him leave to appeal to it on a question of whether the cumulative sentence of 20 years amounted to inhuman or degrading punishment
in contravention of Section 7(1) of the Constitution of Botswana.
6.
In Moatshe v The State; Motshwari and Another v The State [2004] 1 BLR 1 (CA) this Court had to consider what would amount to inhuman or degrading punishment and held that it is not only
those punishments that are inherently, or by their nature, inhuman or degrading but “inhuman punishments” would also
extend to punishments which by reason of their excessiveness must be held to be inhuman (see Moatshe at 13F-14A).
7.
The Court then laid down the considerations that should guide the Court in deciding whether a punishment is excessive so as to render
it “inhuman” (see Moatshe at 14B-D). I need not again set out these here save to repeat three considerations. They are the following:
8.
(i)
A punishment will be excessive if it is grossly disproportionate to
the severity of the offence.
(ii)
Not every lengthy sentence amounts to “inhuman” punishment. It will only be so if it is so
unfit having regard to the offence and the offender as to be grossly disproportionate.
(iii)
Whether a sentence is grossly disproportionate involves a value judgment by the court which should be based on objective factors,
regard being had to the contemporary norms operating within Botswana.
9.
A sentence of 20 years’ imprisonment is not necessarily excessive where the circumstances of a particular case warrant it. The
courts have frequently imposed it in appropriate cases. There are, however, factors in this case which I feel merit consideration
by the Court as to whether it is excessive.
10.
The Appellant was at the time of the offences in 1998 a young man of 23 years. The offence for which he was convicted on 14 July 1999
was attempted robbery; he did not succeed in stealing anything. The “firearm” he used in attempting to rob a super-market
was a toy gun. More important, however, is the following. He says he suffers from arthritis and is HIV positive. He avers that because
he is a foreigner, viz. a citizen of Zimbabwe, the prison authorities do not afford him treatment for his ailments, particularly
his HIV status. The State has not contested these facts and in his heads of argument, Mr Tladi, for the State, has referred this
Court to the judgment of Nganunu C J in Sikhosini Moyo and Others v The State CLHLB-0000012-06 (unreported) where the learned Chief Justice said thus:
“In the case of the 1st appellant I am thinking that in the circumstances of a 23 year old man who is not a citizen of Botswana and who suffers from a disease
where prison conditions can never be suitable for its treatment even ignoring his assertion that he is not offered the treatment
that citizens get, a 10 year sentence of imprisonment is grossly disproportionate and excessive in the light of the moral standards
to the sanctity of life. I believe that the sentence should be characterized as inhuman or degrading and should be set aside…”
11.
I would wish immediately to say that the fact that an offender is an HIV sufferer would not of itself be an “exceptional extenuating
circumstance” allowing a court to invoke the provisions of Section 27(4) of the Penal Code and to impose a lesser sentence
than a statutory minimum sentence if such sentence because of the “exceptional extenuating circumstances” is “totally
inappropriate”. It would, for instance, conflict with the clear intention of the legislature which enacted the terms of Section
142(4) of the Code which provides for enhanced sentences for rape where the offender is HIV positive. On the other hand, it may be
a factor which the court might – not necessarily should – take into account in its value judgment as to whether, having
regard to the offence and the offender, the sentence is grossly disproportionate or, as Nganunu C.J. stated “in the light of
the moral standards to the sanctity of life”.
12.
In its value judgment of the circumstances of the present case and considering the offender, i.e. the Appellant, the Court is of the
view that five years of the sentence on the attempted robbery count should be allowed to run concurrently with the sentence of ten
years on the armed robbery count thereby reducing the Appellant’s sentence from 20 to 15 years imprisonment.
13.
The Appellant was in custody from when he was arrested on 21 December 1998 until his conviction on the armed robbery charge on 17
June 1999. Having regard to the now well-established practice of taking into account any period spent in custody prior to his conviction
and back-dating a sentence to that extent, the Appellant’s sentence of 10 years on the armed robbery count will be backdated
by the period 21 December 1998 to 17 June 1999.
The following order is therefore made:
1.
The Appellant’s conviction and sentence of 10 years’ imprisonment on 14 July 1999 on the charge of attempted robbery are
confirmed.
2.
Five (5) years of the said sentence of 10 years’ imprisonment are to run concurrently with a sentence of 10 years’ imprisonment
imposed on the Appellant for armed robbery on 17 June 1999; the balance of five years to run consecutively to the sentence of ten
years on the count of armed robbery.
3.
The sentence of 10 years’ imprisonment on the charge of armed robbery is back-dated from 21 December 1998 to 17 June 1999.
DELIVERED IN OPEN COURT AT LOBATSE THIS 28th DAY OF JANUARY 2008.
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P H TEBBUTT
Judge President
I agree
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F H Grosskopf
Judge of Appeal
I agree
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M M Ramodibedi
Judge of Appeal
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