SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1986 >> [1986] BWCA 8

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Sethulu v The State (Criminal Appeal No. 33 of 1986 ) [1986] BWCA 8; [1986] B.L.R. 272 (CA) (1 January 1986)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL
OF BOTSWANA
Criminal Appeal No. 33 of 1986 High Court Case No. CT 40 of 1980)
In the matter between:
SEKHUKHU SETHULU APPELLANT
VS.
THE STATE
CORAM: T. A. Aguda, JA. ,
A.       N. E. Amissah, JA.,
B.       A. Doyle, JA. ,
Appellant in person
Mr. P. T. C. Skelemani for the State
JUDGMENT
AGUDA, J.A.:
On December 16, 1985 the appellant wrote from the Central Prison, Gaborone a letter addressed to the Registrar of this court which he headed "Re Application of condonment for leave to appeal out of time". In the letter the appellant stated that all he wanted was for the Court of Appeal to make an order that his .prison sentence should be made to take effect from the date he was arrested and kept in custody. Apparently the Registrar brought this to the attention of the Chief Justice who then treated it as an application for leave to appeal out of time. Sitting as a single member of this court, the learned Chief Justice granted the leave sought.
At the High Court in 1980, the appellant was charged with the murder he was alleged to have committed on November 11, 1979, and with some other offences. It is unnecessary to give the

details of these offences save to say that at the end of a trial the appellant was, on June 21, 1981 found guilty on the count of murder and also on two counts of causing grievous harm and convicted accordingly. In view of the finding of extenuating circumstances by the trial Judge, the appellant was sentenced to a term of imprisonment of 12 years. He was sentenced to a term of three years imprisonment in respect of each of the other two offences, but all the sentences were made to run concurrently. They were to take effect from that date, June 21, 1981.
As the learned Chief Justice who granted leave in this case has rightly pointed out it has become the practice of trial courts to back-date a sentence of imprisonment passed on accused person to the date he had been remanded in prison custody. However, I have not discovered any statutory provision compelling the courts to do this. The practice has developed no doubt out of the anxiety of trial courts to ensure that accused persons do not suffer undue punishment as a result of long delays which sometimes occur between the apprehension of an accused person and the completion of the trial in the case. This practice I am not prepared to hold that it has now become a rule of law. A trial judge must continue to have a discretion in the matter. In exercising that discretion he will no doubt bear in mind all the circumstances of the case particularly what he considers the appropriate sentence in the case should be and the length of period the accused has been in custody. It must also be shown on the record that he has adverted his mind to these matters.

In this particular case we have allowed this appeal because (1) the appellant had been in custody for about 19 months before the sentence was passed on him; and (2) because the learned trial judge did not advert his mind to this point when he passed the effective sentence of 12 years imprisonment It is now not clear that if he had adverted his mind to the 19 months period in which the appellant had been in custody he would nevertheless have imposed the same sentence.
It is for all above reasons that we allowed the appeal and ordered that the sentence imposed in this case be made to commence from November 11, 1979.



T. A. AGUDA JUDGE OF APPEAL

I agree




A. N. E.AMISSAH JUDGE OF APPEAL


I agree
B. A. DOYLE JUDGE OF APPEAL



SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1986/8.html