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Gabatlhojwe v The State (Criminal Appeal No. 23 of 1994) [1994] BWCA 15 (14 July 1994)
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1
IN THE COURT OF APPEAL OF BOTSWANA
CRIMINAL APPEAL NO. 23 OF 1994 In the matter of:
MOSIMANEGAPE GABATLHOJWE
APPELLANT
vs
THE STATE
RESPONDENT
MR. ATTORNEY EDWARD FASHOLE LUKE II FOR THE APPELLANT MISS ATTORNEY MATROOS FOR THE RESPONDENT
JUDGMENT
CORAM:
T.A. AGUDA J.A.
P.H. TEBBUTT J.A. LORD N. WYLIE J.A.
LORD N. WYLIE;
The Appellant was taken into custody on the 2 6th December, 1992 the date of the commission of the crime. He was convicted and sentenced on the 11th March 1994. During the whole of that period of approximately 15 months, facing a charge of murder, he was of course detained in custody. Counsel for the Appellant has submitted that although there is no rule of law to that effect there is undoubtedly in these Courts a practice of back-dating the sentence of imprisonment to take into account the period an Accused has been in detention. The terms of the opinion on sentence, so it was submitted, makes it clear that the trial judge did not avert his mind to this question. Counsel further drew attention to the concluding passage in the judgment, which is in these terms "Because I am not very clear of the circumstances of the death, it is not clear to me whether if the accused were allowed out of jail early he may not necessarily be
2 inclined to commit another crime of such a violent nature".
In these circumstances, the trial Judge imposed a sentence of 12 years imprisonment. Counsel submitted that the passage which I have quoted clearly constitutes a misdirection on the part of
the trial judge. His primary contention however was directed to the fact that in the course of his judgment the trial judge makes no reference whatsoever to the fact that the Accused had been in custody for about 15 months. Although there is no rule of law to the effect that he must back-date the sentence, the sentencing
judge clearly must take that fact into consideration. We are satisfied that there is force in the argument advanced by Counsel for
the Appellant and we will accordingly allow the appeal to the extent of back-dating the sentence of imprisonment to 26th December,
1992. This decision follows the decision of the Court of Appeal in the case of SETHOLE vs THE STATE (1986) BLR 272.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 14TH DAY OF JULY 1994.
LORD N. WYLIE JUDGE OF APPEAL
I AGREE;
T. A. AGUDA JUDGE OF APPEAL
I AGREE;
P. H. TEBBUTT JUDGE OF APPEAL
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