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Poloko v The State (Criminal Appeal No. 38 of 1983) [1983] BWCA 18 (15 December 1983)

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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal  No. 38 of 1983
High Court Cr. Trial No. 12/82
In the matter of:
RAMATONKO DEBERE POLOKO  Applicant
vs.
THE STATE        Respondent
               
RULING ON APPLICATION BY TRIAL   JUDGE
O'BRIEN QUINN. CJ:
The Applicant was convicted of murder on 7th May, 1982 at Selebi Phikwe and was sentenced to 7 years' imprisonment.
At the time he was sentenced it was clearly stated by me as follows:-
"I, therefore, pass on you a sentence of seven years to run from today having taken account of the time you have already spent in custody."
Although the Applicant has an automatic right of appeal when convicted of murder he must exercise that right within the prescribed period, namely 6 weeks from the date of the judgment. No appeal was filed within the time prescribed. The Applicant on 30th June, 1983 sent in an application for leave to appeal out of time without giving any reasons for the delay. However, even in the application, no grounds of appeal were given; all that the Applicant has asked for is that the sentence be back-dated to the date upon which he was first taken into

2
custody. In other words, without giving any grounds or reasons, the Applicant has asked that the sentence, instead of being dated from 7th May, 1982, should be dated from 20th December, 1981;
It is the normal practice for Courts in Botswana in passing sentence to take account of the time spent by an accused in custody awaiting trial and it is a salutary one. However, taking the time spent in custody into account does not necessarily mean that any sentence passed must be dated from the date of first arrest. All it means is that in exercising its discretion, a Court should take account of the period in
s
custody and may or may not, depending on its length or on the length of punishment that the Court intends to give, order the sentence to run from that date.
If a Court in passing sentence makes no reference to tht time spent in custody awaiting trial a Court of Appeal could well, and probably would, in a suitable case, back-date the sentence, but where the Court a*quo specifically mentioned that it had taken that time into account a Court of Appeal would normally back-date the sentence only if the time spent in custody were excessively long or if good grounds were shown why it should do so.
In this particular case the time in question is only just over 4 1/2 months which was taken account of and no reasons or grounds, except a plea ad misericordlam. have been advanced as to why leave should be given, over a year after the sentence was passed.

In these circumstances, I must decline to give leave to appeal out of time and I, accordingly, refuse leave.
J. A. O'BRIEN QUINN Chief Justice
GIVEN at the High Court, Lobatse, this 15th day of December, 1983.

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