THOMAS E. DOWLING (APPELLANT)
INSPECTOR-GENERAL OF POLICE (RESPONDENT)
(1961) All N.L.R. 811
Division: High Court of Lagos
Date of Judgment: 28th December, 1961
Case Number: Appeal No. LD/51CA/61
Before: De Lestang, C. J.
Appeal against sentence from magistrate's court.
The appellant had committed an unnatural offence with a male person. He was later blackmailed by his accomplice. On advice, he went to the police for protection and made a full and free confession. A trap was laid by the police and the alleged blackmailer was caught.
Both the appellant and the blackmailer were charged separately before two different courts, presumably on different charges; but, before the trial of the case against the blackmailer, the appellant was charged, pleaded guilty, and was sentenced to six month's imprisonment. He appealed against the sentence.
An appellate Court will not interfere with a sentence imposed by a trial court, unless the sentence is manifestly excessive in the circumstances of the case, or wrong in principle.
Where a person who is being blackmailed seeks police protection, the proper course is for the police to investigate the complaint and, if satisfied that there is sufficient evidence, to prosecute the blackmailer.
Only after the trial of the blackmailer should the question of prosecuting the victim be considered, and, in practice, it is only in exceptional cases that it is advisable to do so.
The course adopted in this case was not in accordance with well established practice obtaining in such cases elsewhere.
APPEAL from magistrate's court.
Bentley for the Appellant.
Adedipe, Deputy Director of Public Prosecutions, for the Respondent.
De Lestang, C.J.:-The appellant was convicted of an unnatural offence with a male person contrary to section 214 of the Criminal Code and sentenced to imprisonment for six months.
He appeals against sentence.
The circumstances of the case are somewhat unusual. It would appear that after committing the act of which he was convicted, the appellant was blackmailed by his accomplice. So on advice he went to the police for protection and made a full and free confession. A trap was laid by the police and I am informed that the alleged blackmailer was caught. Both the appellant and the blackmailer were then prosecuted separately into two different courts presumably on different charges. The appellant pleaded guilty and was sentenced, as I have stated above. I am informed that the case of the blackmailer has not yet been tried.
Whether a prosecution should be instituted or not in any given case is of course a matter entirely for the Director of Public Prosecutions and the duty of the courts is solely to try the case in accordance with the Law and impose the appropriate sentence. Nevertheless it may not be out of place to point out here that the course adopted in the present case is not in accordance with well established practice obtaining in such cases elsewhere. When a person goes to the police for protection from a blackmailer the proper course is, in my view, for the police to investigate the complaint and, if satisfied that there is sufficient evidence, take action against the blackmailer. Only then after the trial of the blackmailer should the question of prosecuting the victim of the blackmail be considered. In practice it is only in exceptional cases that it is found advisable to do so because usually the victim is considered to have suffered enough. Another reason for this practice is no doubt the desire to preserve the confidence of the public in the police. This is most important. It is well known that there can be no prosecution for blackmail, which incidentally is one of the most despicable crimes in the criminal law, without information from the victims of the blackmail, and the police rely on these persons coming to them and, I have said, usually afford them protection. Nobody will be stupid enough to go to the police for protection in the future if he runs the risk of being himself indicted on his own confession, and this before the blackmailer has been tried. I hope that these remarks will be useful to the prosecution in future cases.
Be that as it may, I am here solely concerned with the sentence. The appellant is a married man-happily married I am told. He has been in Nigeria for ten years and this is the first time that he has been in trouble. He is a first offender and the offence was committed with a male prostitute. As a result of his conviction he has lost his job and has now been in prison for three weeks. It is said on his behalf that he is a mental wreck and that no good will be served by keeping him in prison for six months. It is also said that such offences are no longer considered serious crimes in many parts of Europe.
The principles on which a Court of Appeal acts in an appeal against sentence are well settled. The court will not interfere with the sentence unless it is manifestly excessive in the circumstances of the case or wrong in principle. Whatever may be the view taken of such offences elsewhere, it is clear that in Nigeria it is still considered grave since the Law prescribes a maximum punishment of fourteen years imprisonment for it. That being so, prima facie a sentence of six months cannot be considered excessive. It would appear moreover that in passing sentence the learned Chief Magistrate took into consideration all the circumstances and did not apply any wrong principle. I can see no good reason, therefore, to interfere with his decision. The appeal against sentence is dismissed.