12.
Section 27 (4) was introduced into the Penal Code
by the Penal Code (Amendment) Act 39 of 2004 which was enacted in December 2004. However, even before that the question of sentencing
of youthful offenders had been the subject of judicial pronouncements. In two cases in 2002 the courts expressed their views in regard
thereto. In the first of these Shimane Moatshe and Another v. The State (2003) 1 BLR 65 (H.C.), Kirby J. had to consider whether, in a conviction for robbery of two offenders, one aged 25 and the other 19, and where the minimum
mandatory sentence was imposed on each of them, the circumstances of the younger of the two rendered that sentence an inhuman and
degrading punishment in contravention of Section 7 (1) of the Constitution of Botswana. In a comprehensive and well-expressed judgment,
he concluded that if, having regard to the circumstances of the offence and of the offender and the relevant issues of public interest,
the statutory minimum sentence was inhuman and degrading because it was so disproportionate that no reasonable person would impose
it, a lesser sentence than the statutory minimum could be imposed. I have a strong feeling that it was this judgment that may have
motivated the legislature to enact Section 27 (4) the next year. Be that as it may, in the course of his judgment Kirby J. said the
following at 90H-91A:
“As regards the correct approach to the sentencing of minors, it is true that the court will generally try to avoid sending young first
offenders to prison, where such restraint is permissible. But, under Botswana’s penal system, the cut-off point at which an
accused person ceases to be regarded as a juvenile and is treated as an adult is 18 years. So, by s 26 (2) of the Penal Code, a person
under 18 years of age convicted of murder is not to be sentenced to death, but is to be detained at the President’s pleasure.
By s 28(2), a person under 18 may receive no more than six strokes of the cane, where a sentence of corporal punishment is imposed.
By s 28(4), where a person under 18 is convicted of an offence punishable by imprisonment, he may be ordered to undergo corporal
punishment in addition to or in substitution for such imprisonment.”
With regard to juveniles who were
18 years of age,
the learned judge at 91C expressed
the following
view:
“At 18 a young man is entitled to vote, enlist in
the armed forces, drive a motor vehicle, and
enter licensed premises. He is in all respects
an adult, albeit a young adult, and must bear the duties and responsibilities of adulthood as well as enjoying the privileges which
accompany this status.”
13.
In the case before him, Kirby J, pointed to a number
of factors making the offence “an aggravated offence of the gravest nature.” Those circumstances were such that despite
the age of the 19-year-old offender, the mandatory minimum sentence was not disproportionate to the offence and was confirmed.
14. Later in the same year Molokomme J., as she then was, had an appeal by two 18-year-olds, who had been convicted of robbery, before
her. Referring extensively to the judgment of Kirby J. in the Shimane Moatshe case, supra and referring to a judgment of this Court in regard to the constitutionality of inhuman and degrading punishments (see Badisa Moatshe v. The State (2004) 1 BLR (CA)) she found that the circumstances of the case which were in no manner aggravating, coupled with the youthfulness of the appellants,
justified her reducing their sentences from the mandatory minimum one of 10 years’ imprisonment. (see Mokone and Another v. The State (2003) 2 BLR 225 (H.C.)) She did not find that their youthfulness alone entitled her to do so but in respect of it she said at 236 E.
“I am even more convinced that the case before me presents exceptional circumstances when the personal situation of the offenders is
looked at. The appellants were both 18 years of age when they were brought before the magistrates’ court.”
15.
In neither Mokone’s case nor in Fu’s case supra
was the mandatory minimum sentence of 10 years’ imprisonment reduced in terms of section 27 (4) simply because of the youthfulness
of the offenders. In Fu’s case the circumstances of the offence were such as to constitute exceptional extenuating circumstances and in Mokone’s case the circumstances of the case, coupled with the youthfulness of the offenders, were the reasons for the court invoking
the provisions of the section.
16.
Furthermore, in neither Seme’s case supra nor in Fu’s case did the learned Judges in those cases refer to what is, in my view, another most important factor contained in the wording of
section 27 (4). It is this. Apart from there having to be exceptional extenuating circumstances (my emphasis) in order to justify its provisions being applied, they must also be such as to render the
statutory minimum sentence totally inappropriate (again emphasis added). The necessity for both provisions having to be considered by the court is manifest. The enactment
by the legislature of the mandatory minimum sentences for robbery and rape was clearly in order to put in place deterrent steps in
order to curb the incidence of such offences and their increase and to protect the interests and rights of law – abiding citizens
(see Moatshe v. State (2004) 1 BLR 1 CA at 9 E-F where at 10F the court stated that the enactment of mandatory minimum sentences is justifiable where the public weal requires
them.) They are not unconstitutional (see Moatshe’s case) and, because of the increasing prevalence of such offences and, particularly because of the violence so often accompanying
their commission, the Government intended to crack down on robbers and rapists in reaction to overwhelming public sentiment in regard
to such crimes. Conscious of, or having been made aware of, the fact that there may, in certain rare cases, be circumstances either
of the offence or the offender which would cause the imposition of a mandatory minimum sentence totally inappropriate in the sense,
as stated by Kirby J., that no reasonable person would have imposed it or that it would amount to inhuman or degrading punishment,
the legislature saw fit to enact section 27 (4) to meet such case
17.
It must, however, be stressed that to enable its provisions to be invoked the extenuating circumstances must be exceptional and beyond
the ordinary well-known extenuating circumstances applied by the courts (such as those referred to in section 230 of the Code) and
it will be only in those rare cases where that criterion is met that section 27 (4) will be applicable.
18.
This Court has previously expressed similar views to those I have just set out. In Stephen Serumola v. Director of Public Prosecutions Crim. App. 059-06 (unreported) the Court also had to consider section 27 (4). In its judgment in that case the Court, too, emphasized the words “exceptional”
and “totally inappropriate” –
“… because it is clear that not any extenuating circumstances will justify a lesser sentence but that such circumstance or circumstances
will be exceptional in order to render the minimum mandatory period ‘totally’ inappropriate.”
The Court went on to say this –
“The Legislature in its bid to curb robberies,
which this Court knows have been increasing at an alarming rate in Botswana, has determined that one of the means of doing so is to
require the imposition of severe sentences. The courts should, therefore, be slow in not imposing them and only do so in those rare
cases where there are factors which could be classified as exceptional in their extenuating effect.”
19.
I am therefore of opinion – and so hold – that
youthfulness per se is not an exceptional
extenuating circumstance and although, as pointed
out
by Molokomme J in Mokone’s case supra 237 B-E,
special provisions exist with respect to the criminal liability and sentencing of persons below 18 years of
age e.g. in the Penal Code, in section 304 of the Criminal Procedure and Evidence Act and in the Children’s Act (Cp. 28:04),
the court is nevertheless obliged in terms of the relevant legislation to impose the statutory minimum sentence for robbery or rape
even on a juvenile offender unless it would be totally inappropriate to do so.
20.
I am also of the view that although Kirby J. opined,
as set out above, that 18 years may be the cut-off point in an assessment of juvenility,
such a criterion cannot be set in stone. It may well be that a youth below the age of 18, say 17 years, is by his background, lifestyle,
upbringing or education as mature as a man of 19 years or even older. On the other hand, a person who is over 18 years, say e.g.
19 or even more years, may for similar reasons, be a most immature, callow and childlike individual.
21.
I, therefore, conclude that it is only in those
exceptional instances where it would be totally
inappropriate to impose the statutory minimum sentences on a person who is of tender age, that youthfulness would warrant the invoking
of the provisions of section 27 (4) of the Penal Code.
22.
I come then to deal with the individual cases of the
two appellants.
KEBOSEKE:
23.
This applicant, a first offender, was, according to
his evidence 20 years of age when he was tried. He tells this Court that he was 19
years of age when he committed the offence but whether he was 19 (which I will accept) or 20, he was at the time no callow youth
but already a man of maturity. He was apparently running a barber’s shop which he said, when pleading in mitigation before
the magistrate, he relied upon to pay school fees and buy food for his siblings for whom he was caring. The evidence of the complainant,
whom the magistrate found to be a credible witness, was that the appellant had hit and throttled her with a chain, that he had forcibly
pulled her into the house in which he, against her will and with force, had intercourse with her, boasting that he was “a bull
with spotty testicles”. As submitted by Ms. Matlhodi for the State he was fortunate to have been charged with defilement and
not rape, this Court having held that where a man has sexual intercourse with a girl under the age of 16 years without her consent,
he is guilty of rape (see Christopher Ketlwaeletswe v. The State Crim. Appeal 066-06 C.A. (unreported). There were, in my view, no exceptional extenuating circumstances whatsoever requiring the court to invoke the provisions
of section 27 (4) and the mandatory sentence of 10 years’ imprisonment therefore must remain undisturbed.
24.
The appellant requested the Court, should it confirm the sentence, to backdate it to run from the date of his arrest and not the date
of his conviction, viz. 6 June 2002, as ordered by the magistrate. The appellant was, however, on bail during this period. He submits, nevertheless that the
period should be taken into account in computing the time from which his sentence should run as he had to travel a considerable distance
from his home to the police station where he had regularly to report and, in fact, in order to do so, he had had to rent a house
nearer to the police station in question. Similar arguments have previously been advanced in this Court and rejected. Moreover, this
Court has, in regard to such arguments, said the following:
“A sentence of imprisonment does not have to be backdated. It lies in the discretion of the sentencing court as to whether to do so
or not. But if it is backdated the purpose is to provide that a person who receives a sentence of imprisonment in an appropriate
case should not have that period artificially increased by the time spent in custody prior to his being sentenced. Where, however,
he is on bail, he is not in custody and although there may be conditions such as his having to report periodically to the police
or not being allowed to leave the court’s jurisdiction, they do not amount to a deprivation of freedom. Bail is not penal in
nature. To suggest therefore that a period when an accused is out on bail should be taken into account when backdating a sentence
is totally untenable. Future submissions of this sort will not merit serious consideration.”
(see Obusitswe Selekanyo v. The State Crim.
Appeal 019-06 C.A. (unreported). The appellant’s
request is refused.
SELEKA
25.
This appellant has advanced a number of
factors which he submits constitute exceptional extenuating circumstances. Firstly, his age. He was 18 years of age at the time the
offence was committed and a student at New Era Secondary School. He submits that he wishes to continue to pursue his studies so as
to become an educated and responsible law abiding citizen and that the effect of the mandatory minimum sentence of 10 years would
be to break him and not to allow him the “opportunity to learn from his mistake and turn a new leaf”, as expressed by
Phumaphi J in Seme’s case supra. He has also referred to certain decisions where courts have expressed the undesirability of sending youthful offenders to prison.
Some of these cases are old ones e.g. in 1964, 1972 and 1975 and deal with offences other than robbery, such as sexual offences before
the enactment of the statutory minimum sentences in respect of sexual offences in 1998 and at least one deals with defilement, which
is an offence even where there is consensual sex between young teenagers and where in such instances different considerations may
well prevail. I express no view thereon here. They are all distinguishable from the present case where the appellant has been convicted
of robbery, contrary to section 291 (1) read with section 292 (2) of the Penal Code, thus bringing into operation the mandatory minimum
sentence enacted by the legislature as to the need whereof and the rationale behind them I have set out above. The appellant submits
further, in response to what Kirby J. said in the Moatshe case, supra, about 18 year-olds, that within Botswana society a youth of 18, particularly one who is a student at school, is regarded by parents
and other older relatives as still a child and not an adult and is treated as such and that the criteria mentioned by Kirby J. would
not apply to him, the appellant. However, although 18 years of age, he was apparently consorting with older men and on the fateful
evening his companion, Accused No. 2, was a mature man 24 years of age. Together they engaged, according to the appellant, in a drinking
spree which started in one bar and which was to continue into the early hours of the morning in a night club in Gaborone West –
hardly the behaviour of a callow youth who, he said, was usually treated as a child. It is also noteworthy that he was mature enough
after his arrest to leave school and open and operate a cash loan business – also evidencing a considerable measure of maturity.
26.
The second point raised by the appellant is that
the robbery was not premeditated or pre-planned. While it may be so that there is
no evidence that the appellant and Accused No. 2 sat down some time before to plan the robbery, they must have had a plan in operation
when, after dropping the other two passengers, accused No. 2 threatened the taxi driver with a gun albeit a toy one, and the appellant immediately began rifling the driver’s pockets and dispossessing him of such cash as he had on
him, his cell phone and his wallet. I cannot accept, as appellant would have this Court believe, that he had acted spontaneously
and on the spur of the moment when he saw that Accused No. 2 had intimidated the driver with the gun.
27.
His third submission was that most of the driver’s
possessions were recovered and that he had
suffered little loss. The driver’s fortune cannot redound to the benefit of the appellant. He and his confrere were arrested
so soon after the event and I have no doubt that they would have used the money and profitably disposed of the cell phone taken from
the complainant, if they had not been so.
28.
Finally, the appellant submits that the complainant
taxi-driver suffered no injury and that no violence was used by either him or Accused
No. 2 towards the complainant. Section 291 of the Penal Code, however, provides that where violence is threatened at the time of
stealing anything the offence of robbery is committed and section 292 (2) brings the mandatory minimum sentence of 10 years’
imprisonment into operation where the offender is in company with one or more person or persons. Pointing a firearm, even though
in this case it was a toy gun (which the victim, seeing the gun, could not have known), amounts to a threat of violence and although
it was Accused No. 2 who had the gun and not the appellant, they operated in concert in effecting the robbery of which they were
convicted.
29.
The appellant submits that any of the above factors
or one or more of them cumulatively constitute exceptional extenuating circumstances.
In the Serumola case cited above this Court had similar factors advanced before it as constituting exceptional extenuating circumstances. In regard
to them the Court said the following:
“In summary, these were (a)
his youth at the
time he committed the offence. He was 19 years of age then; (b) that all the property stolen was recovered and thus he did not benefit
from the crime; (c) that the injuries sustained by the night watchman at the scene of the crime who was attacked during the course
of the robbery were not very serious or life threatening; and (d) that he had a bad back for which he requires proper medical treatment.
The last of these is not, in my view, an extenuating circumstance at all, and while the others may be said to be factors which may
be considered as mitigatory when deciding on an appropriate sentence, they are not, either singly or cumulatively, so exceptional
as to render the minimum statutory sentence totally inappropriate.”
.RTF of original document