SENTENCING
SENTENCING
SENTENCING
SENTENCING
INTRODUCTION
• The expression trial may be defined as
• “A formal examination of evidence in a court of law to decide if a
person is guilty of a crime”
• In other words, a trial is a debate between two groups with different
stories or versions of what actually happened.
• Trials end agreements when two groups cannot agree on facts.
• A criminal trial resolves the question of guilt when someone is charged
with committing a criminal offense.
Cont..
• Every criminal defendant is presumed innocent until proven guilty (set out in section
10(2) (a) of the Botswana Constitution.
• The standard of proof is “beyond a reasonable doubt”: a preponderance of the
evidence, as used in civil proceedings, is not sufficient to sustain a criminal conviction.
• The burden of proof is on the public prosecutor.
• Unless the prosecutor establishes every element of the offence beyond a reasonable
doubt, the defendant must be acquitted or may be convicted only of a lesser included
offence.
DOUBLE JEOPARDY/NE BIS IN IDEM
• “A person cannot be punished twice either under the provisions of this Code
or under the provisions of any other law for the same act or omission,
except in the case where the act or omission is such that by means thereof he
causes the death of another person, in which case he may be convicted of
the offence of which he is guilty by reason of causing such death,
notwithstanding that he has already been convicted of some other offence
constituted by the act or omission.”
• Regulated by section 19 of the Botswana Penal Code
Stages of Criminal Proceeding
• The criminal proceeding is divided into two stages: the determination
of the defendant’s guilt or innocence, and the sentencing.
1. Evidence relevant to the defendant’s guilt and evidence
2. Evidence relevant to sentencing will be heard in a separate trial, and a
single judgment setting forth the facts found by the court and specifying
the sentence to be served, or that which acquits the defendant, will be
announced.
Trial proceedings
• In Botswana, the charging power belongs exclusively to the police and public prosecutor, and a
formal charge is presented in the form of a written charging instrument prepared by a
prosecutor.
• The document contains a clear description of the elements of the offence charged, and no
evidentiary material may be attached to it.
• The rights pertaining to a fair trial is set out fully in section 10 (Chapter II) of the Botswana
Constitution under the heading “Provisions to secure protection of law”:
• The basic attributes of the fair trial can be traced from the Universal Declaration of Human
Rights, 1948.
• They are enshrined in Articles 10 and 11 of the Declaration.
• In Botswana, criminal cases are tried by a judge, or
magistrates depending on the nature of the charge.
STAGES OF TRIAL
The trial can be divided into four stages:
• When all the evidence is heard, the prosecution and then the
defence counsel will make their closing arguments.
• Arguments will cover issues of fact, law, and sentencing.
• Prosecutors make sentencing recommendations at the end of
their closing arguments.
Rules of Evidence
• Hearsay rule
• An out-of-court statement not subjected to cross examination.
• Hearsay is inadmissible unless (i) the other party consents to its use; or (ii) it
fits into one of the exceptions provided for in the CP.
Hearsay exceptions-Consent
•
(4.1.1) Constitution of Botswana: The constitution protects a wide range of fundamental
rights and freedoms – specifically in subsections 3-19 of Chapter II;
• (4.1.2) The Botswana Penal Code (Law no 2 of 1964)
• (4.1.3) The Criminal Procedure and Evidence Act (Chapter 9:07)
• (4.1.4) The Children’s Act (08 of 2009)
• (4.1.5) The Botswana Police Force Act.
Adjudication and sentencing
• As stated earlier, a single judgement that sets forth the finding of the court
and specifies the sentence to be served, or that which acquits the defendant,
will be announced at the end of the trial.
• Of interest to scholars
• Acquittal rate in Summary Courts.
• The acquittal rate for contested cases
SENTENCING
Overview
• TYPES OF SENTENCES
• Custodial Sentence
• Noncustodial Sentence
• Pains of punishment
TYPES OF SENTENCES
• There are a number of different types of prison sentence available to a
court.
• Refer to Directed Readings: determinate sentences, intermediate sentences,
extended sentences and life sentences and to find out more.
Custodial Sentence (Imprisonment)
• Imprisonment is the most severe sentence available to the courts.
• Custodial sentences are reserved for the most serious offences and are imposed when the offence committed
is “so serious that neither a fine alone nor a community sentence can be justified for the offence”.
• A custodial sentence may also be imposed where the court believes it is necessary to protect the public.
• The length of the sentence depends on the seriousness of the offence and the maximum penalty for the
crime allowed by law.
• It is opposed to a deterrent sentence, which doesn't impose confinement, but serves as a warning through
alternate punishment, such as community service or a fine.
Indeterminate Sentencing
• Another factor the judge and the law will consider is the nature of the crimes
involves.
• An individual who is convicted of three similar crimes will most likely serve
concurrent sentences. However, if the crimes are unrelated (such as robbery and
murder), the judge is more likely to issue an order for consecutive sentences.
• This is partly because the commission of one crime can lead to several charges.
FACTORS USED TO DETERMINE THE TYPE OF
SENTENCING
• Section 27 of the Penal Code chapter 08:01 deals with Imprisonment, it states;
• (1) Sentence of imprisonment shall not be passed on any person under the age of 14 years.
• (2) A person convicted of an offence punishable with imprisonment for life or any other period may be sentenced for any
shorter term.
• (3) A person convicted of an offence punishable with imprisonment may be sentenced to pay a fine in addition to or
instead of imprisonment.
• (4) Notwithstanding any provision in any enactment which provides for the imposition of a statutory minimum period of
imprisonment upon a person convicted of an offence, a court may, where there are exceptional extenuating circumstances
which would render the imposition of the statutory minimum period of imprisonment totally inappropriate, impose a lesser
and appropriate penalty.
Non-Custodial Sentence
• The judicial officer may give an order for the accused to receive a
specified number of strokes/lashes on the buttocks as punishment.
• The accused is usually tested medically to ascertain that they are in a
fit condition to receive the punishment.
• This punishment is only used for males under 40 years of age. The
accused may not receive more than 12 strokes at a go, in the case of
which they have to be meted out in installments.
Provisions for administration of corporal punishment under the CP&E
i) From time to time, the Minister may approve different types of cane for
different classes of people and the cane use must be of a kind approved by
the Minister
ii) a medical officer must certify the accused fit for receiving the punishment
and the punishment must be done in the presence of a certified medical
officer or a magistrate
iii)where the accused is certified UNFIT to undergo caning, another
punishment must be substituted in lieu of corporal punishment
Cont…
i) The sentence may not be carried out by installments
ii)Where the accused has been sentenced to more than one count of
corporal punishment, the penalties would be combined and treated as
one
iii)The sentence must be administered in private
iv)Where an 18 year old is sentenced to corporal punishment, their
parent or guardian may be present at the administration of the
punishment
Compensation and Restitution
• NB: non-custodial sentences are only used for minor offenses, mainly young
offenders, and first offenders. Where the accused poses danger to their victim or
any member of the public, they may not be given a custodial alternative despite the
less serious offense they may have committed.
PAINS OF IMPRISONMENT
• Gresham Sykes first propounded this theory in 1958 in his work “ Society of Captives: The
study of a maximum security prison”
• Loss of liberty
As a free person in the outside world, every individual has the liberty to do all the things they like as long as they are legal.
o Dress style
o Profession
o Association
o Family
o Hobbies
o And social status
Cont..
• Loss of status
• Loss of heterosexual relationships
• Loss of privacy
• Loss of self-esteem
• Loss of security
Monotony and boredom
Every activity is closely monitored and controlled by a strict time table that is made more for administrative
convenience than for the sake of prisoners
Recreational facilities are not always fully utilized sometimes due to shortage of staff and other reasons
Even the training provided in prison can be boring as it bears no relevance to ones profession and
employment on the outside
• Prisoners escape this monotony in one of several ways
Fantasy
Homosexuality (which increases sexual violence and exploitation)
Drugs
Mental disorder (especially psychosis)
• Physical violence (prison gangs and the subculture of violence)
Violence is countered with more violence to induce fear and establish control over fellow inmates
Concurrent or Consecutive
• Concurrent sentence
• Two separate sentences served at the same time
• Example: 2 years for robbery + 4 years for assault = 4 years to serve
• Consecutive
• Two or more sentences served sequentially
• “You take some of my time, I will take some of yours.”
• Example: 2 years for robbery + 4 years for assault = 6 years to serve
GAREKWE v. THE STATE 1993 BLR 94 (HC)
• The appellant (hereinafter referred to in his judgment as the accused) was, after a trial,
convicted by the senior magistrate, Gaborone of five counts of stealing by servant in
contravention of s. 276 as read with s. 282 (now ss. 271 and 277 Rev. Laws respectively) of
the Penal Code.
• He was sentenced on the counts seriatim to 18 months, 12 months, 18 months, 18 months
and two years' imprisonment.
• All these custodial sentences were ordered to run concurrently and wholly suspended
conditionally for three years. He was also ordered to pay, by way of compensation, the sum
of P49,375,33, representing the amount stolen, to the Botswana Democratic Party his
former employer.
Thinking Question