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S v Dusani (CLCLB 05107) [2008] BWCA 6 (11 January 2008)

.RTF of original document

IN THE COURT OF APPEAL OF THE REPUBLIC OF
BOTSWANA HELD AT LOBATSE

                                                                                 CLCLB 051-07

In the matter of:

OBUILE DUSANI                                                          Appellant

vs.

THE STATE                                                                       Respondent

Mr. T. Tshekiso for the Appellant
Mr. T. Silitshena for the Respondent



J U D G M E N T



 P. H. Tebbutt, J.P.:
Lord Coulsfield, J.A.:
Dr. Seth Twum, J.A.:
TEBBUTT, J.P.:


The Appellant was found guilty in the High Court of murder with extenuating circumstances and sentenced to 13 years imprisonment. He appealed to this Court against his sentence. At the hearing of his appeal, only one point was advanced for consideration by this Court. It was that the Appellant had spent 8 months and 5 days in custody before being admitted to bail for his offence and that the trial court should have reduced his sentence by that period. He requested this Court to correct the sentence imposed of 13 years by reducing it by 8 months. The State did not oppose this request.
For his request the Appellant referred the Court to an earlier judgment by it in which an Appellant, who was sentenced to 10 years imprisonment for rape, had his sentence reduced by 72 days, the period he had spent in custody prior to being admitted to bail. (See OBUSITSWE SELEKANYO vs. STATE CA APP 019-05)
The decision in that case to reduce the sentence turned on its own particular facts. Similarly, the decision in the present case depends on its own facts. It must not be thought that periods spent in custody by accused persons prior their being admitted to bail will result automatically in a reduction of their sentences by such periods or that this Court, by that case and the present one, is intending to establish any sort of practice in this regard. Moreover, it is only lengthy periods so spent in custody that will merit any consideration. If a person has spent a substantial period or periods in custody before trial, that is, no doubt, a factor which should be taken into account in assessing the proper sentence, but it does not follow that a specific reduction should be made equal to the periods spent in custody. Any case in which such a situation arises will depend on its own facts and circumstances.
In the present case, the Court confirmed the conviction of the Appellant but set
aside the sentence of 13 years imprisonment and substituted therefor a sentence of 12 years and 4 months imprisonment.

The Court stated that it would give its reasons for its order in due course. These are the reasons.

Delivered in open Court at Lobatse this 11th day of January 2008.

----------------------
P. H. TEBBUTT
Judge President
----------------------
I agree           LORD COULSFIELD
Judge of Appeal
----------------------
I agree           DR. S. TWUM
Judge of Appeal

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