The appellant was convicted on 21st March 2002 by the Principal Magistrate at Kanye of robbery contrary to Section 291 of the Penal Code and sentenced to the mandatory
minimum sentence provided in Section 292 (2) of the Code of 10 years imprisonment. He had previously – on 16th January 2001 - been convicted of the offence of defilement and had also been given the mandatory minimum sentence for that offence
of 10 years imprisonment. The Principal Magistrate who sentenced the appellant on the robbery count declined to allow the sentence
to run concurrently with the sentence the appellant was serving for the defilement conviction as did Kirby J in an appeal to the
High Court by the appellant against his sentence. Kirby J, however, granted the appellant leave to appeal to this court against his
sentence, hence the present appeal proceedings.
Because the appellant contended that the cumulative effect of the two sentences of 10 years each ie a total of 20 years imprisonment
was grossly excessive and represented inhuman punishment in violation of his rights under Section 7 (1) of the Constitution of Botswana,
when his appeal initially came before this court it was considered that it necessitated a hearing before a Full Bench of five Judges
of the court. It was accordingly heard by a Full Bench but it does in fact, not involve any interpretation of the constitution or
a consideration of any Section of the Penal Code in relation to the Constitution. It could therefore, have been heard by the usual
quorum of three Judges of the Court in appeals of this sort.
Be that as it may, what the court was asked to consider was whether all or any portion of the two sentences should be allowed to run
concurrently.
Unlike the provisions in Section 3(5) of the Stock Theft (Cap 09:01), Section 3 (5) of the Motor Vehicle Theft Act (Cap 09:04) or
Section 142 (5) of the Penal Code that it was obligatory that the mandatory sentences for offences under the first two Acts or for
rape under Section 142 (5) of the Code had to run consecutively, there is no bar to a mandatory minimum sentence, or portion thereof,
for a conviction for defilement or for robbery being allowed in terms of Section 300 (2) of the Criminal Procedure and Evidence Act
(Cap 08:02) to run concurrently with any other sentence. This Court has held that the provisions of the Sections in the two Acts
mentioned above and of Section 142 (5) of the Code are unconstitutional and has struck them down. It is now possible for courts also
in respect of mandatory minimum sentences under those Acts and under Section 142 of the Penal Code in relation to rape offences,
to consider whether they should apply the provisions of Section 300(2) of the Criminal Procedures and Evidence Act and order all
or a portion of such sentences to run concurrently (see Moatshe v The State; Motshwari and others v The State (2004) (BLR 1 (CA); Tlhabiwa and Another v The State (2003) 2 BLR 39 (CA); Bashi Matlho v The State Criminal Appeal 019/2007, delivered on 21st January 2008 and as yet unreported).
Section 300 (2) provides that where several punishments of imprisonment are imposed for different offences, such punishments shall
commence the one after the expiration, setting aside or remission of the other ie shall run consecutively “unless the court
directs that such punishment shall run concurrently”.
In considering whether to apply the provisions of Section 300 (2) the court will obviously have regard to the cumulative effect of
the several punishments and whether that creates a total period of imprisonment which is so grossly excessive as to constitute inhuman
or degrading punishment in violation of Section 7 (1) of the Constitution.
In Moatshe, supra, and Matlho, supra, this court held that lengthy sentences of imprisonment may be regarded as excessive where they are grossly disproportionate
having regard to the offence and the offender. The decision whether a sentence is grossly disproportionate involves the exercise
of a value judgment by the court.
In the present case the conviction on a charge of defilement of the appellant under Section 147 of the Penal Code was because he had
sexual intercourse with a girl aged 14, and thus under the age of 16, as provided in that Section. The facts show that although no
violence was involved in the offence, the appellant, who was 42 years old at the time and thus old enough to be her father, took
advantage of the immature young complainant luring her into his house by having her believe that he was searching for her elder sister
but with the ulterior motive of having sex with her. Defilement is clearly regarded in a serious light by the legislature which in
an endeavor to protect young girls from being forced or persuaded or inveigled into having sexual intercourse, whether with or without
their consent, has imposed severe sentences in respect of it. Section 147 of the Penal Code provides for a minimum sentence of 10
years imprisonment. Enhanced sentences of 15 and 20 years imprisonment must be imposed where the perpetrator is found to be HIV positive.
As pointed out by the court in Matlho supra, the courts must assist the legislature in implementing the protection of women and young girls. There can thus be no quarrel
with the sentence imposed in this case.
In respect of the robbery count the facts are the following;
The appellant and two confreres ganged up against an elderly night watchman at Mafhikana Post Office and severely assaulted him before
breaking into the Post Office and trying to open the safe there. Unable to do so, they robbed him of his torch, his stick and a gold
wall watch valued at P50-00 belonging to the Post Office. All the items were recovered and restored to their owners.
It is accepted that robbery is a serious offence and that it is viewed so by the legislature which, in and endeavour to curb its incidence,
has enacted a maximum sentence of 20 years and a minimum of 10 years imprisonment where violence has been used. In the present case,
severe violence was used by the appellant on his victim, and although all the items stolen were recovered they were found in his
possession. The sentence on the appellant of 10 years may seem to be somewhat on the harsh side but it is the minimum sentence that
the court had to pass and I do not feel that it was unwarranted.
Mr Sikhakhane, who appeared pro-deo at the request of this court for the appellant, submitted, however, that the cumulative effect of the two sentences ie a total of
20 years imprisonment was excessively lengthy and induced a sense of shock.
A sentence of 20 years imprisonment is not necessarily excessive. Such a sentence may be warranted where the particular circumstances
of a case so dictate. That occurred in Matlho supra. However, applying a value judgment to the facts of the present case the court is of the view that the harshness of the consecutive
sentences should to some extent be ameliorated by allowing portion of one of them to run concurrently with the other. It will accordingly
order that 3 years of the sentence of 10 years imprisonment imposed on the appellant in respect of his conviction for robbery is
to run concurrently with the sentence on the charge of defilement.
The court again expresses its thanks to Mr Sikhakhane for willingly acceding to the court’s request to assist the appellant
and for the conscientious manner in which he did so.
The following order is made;
1.
The conviction and sentence of 10 years imprisonment imposed on the appellant on the charge of defilement contrary to section 147
of the Penal Code, which were confirmed by the High Court on an appeal to it, are again confirmed by this court.
2.
The conviction on a charge of robbery contrary to Section 291 of the Penal Code is confirmed.
3.
Three years of the sentence of ten years imprisonment imposed on the appellant in respect of the aforesaid conviction for robbery
are ordered to run concurrently with the sentence of 10 years imprisonment imposed on the appellant in respect of the charge of defilement.
_____________
P H TEBBUTT
JUDGE PRESIDENT
I agree
_______________
F H GROSSKOPF
JUDGE OF APPEAL
I agree
_______________
S A MOORE
JUDGE OF APPEAL
I agree
_______________
N J Mc NALLY
JUDGE OF APPEAL
I agree
______________
DR S TWUM
JUDGE OF APPEAL
DELIVERED IN OPEN COURT AT LOBATSE THIS 21ST DAY JANUARY 2008.
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