SENTENCING

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THE TRIAL CONTINUED

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..

A judicial examination by the law of the land of a cause either


civil or criminal of the issues between parties, whether of law or
fact, before a court that has proper jurisdiction.
Generally, it refers to a judicial proceeding that ends in conviction
or acquittal.
Cont..
• The Director of Public Prosecutions is vested with the right and entrusted
with the duty of prosecuting in the name and on behalf of the State in
respect of any offence committed in Botswana.
• All public prosecutors in any magistrate's court are, as representatives of the
Director of Public Prosecutions and subject to his instructions, charged with
the duty of prosecuting in that court, in the name and on behalf of the State
all offences which that court has jurisdiction to try.
Relevant Provisions-Recap
• Before a regular trial can commence the following pre-trial steps are necessary to be taken.
• The determination of place of trial
• Determination of jurisdiction, juvenility
• Cognizance of offence by the court
• Issue of the process to procure the attendance of the accused persons such as
• Supplying copies (the record is everything to the judicial process).
• The competence of a court that cannot accurately record its proceedings and preserve the
records to guarantee a fair trial is questionable.
• Accused defense
• Trial
Determination of Jurisdiction
• The High Court, as constituted by the Constitution of Botswana, has
jurisdiction in respect of the trial of all persons charged on indictment with
committing any offence within Botswana.
• Magistrates' courts, have jurisdiction in all cases of offences committed
within their several areas of jurisdiction
Issue of Juvenility

• The application from the accused for his claim as juvenile


• Anyone can from the side of the accused raise such a plea (Father, Mother, brother,
advocate, lawyer.
• Inquiry has to be made given the juvenile justice system.
• Initially, the accused produces the documents relating to his/her birth, such as a
birth certificate.
• The birth certificate constitute evidence of its contents unless and until proven to
be fabricated
Determining Juvenility
• For the purpose of inquiry with reference to age of a juvenile, court is
bound to requisition the original record, and summon and examine the
authors and custodians of such record and documents in order to determine
the genuineness of the same.
• Where birth certificates and other documents issued by authorized
institutions giving the date of birth of an accused are available on record
then unless such certificates are held to be fraudulent and/or bogus they are
not to be relied upon.
Estimating age of person
• Sec334.
• If in any criminal proceedings, the age of any person is a relevant fact of which no or
insufficient evidence is available in those proceedings, the court may estimate the age of
such person by his appearance or from any information which may be available, and the age
so estimated shall be deemed to be such person's correct age, unless-
• (a) it is subsequently proved that the said estimate was incorrect; and
• (b) the person accused in those proceedings could not have been lawfully convicted of
the offence with which he was charged if the said person's correct age had been
proved.
Authenticity of documents
• If the authenticity of birth documents is found above and aboard and there
is no serious challenge from the other side, then it is wrong to say that in
every case medical examination is compulsory.
• When a question of the age of an accused person is raised or arises, he/she
must be subject to medical tests unless strong reasons existing could be
offered for not doing so.
• It is necessary when there is no other evidence, or the documents are under
serious challenge.
Issues with Medical Opinion
• Cannot override evidence of birth certificate
• The ossification test give a clue as to the age but cannot be conclusive proof
and this exercise is resorted to only when there is no other proof available
like the school leaving certificate or birth certificate and the court is in a
quandary about the age of an accused.
Cognizance of offence by the court

• All magistrates or any other magistrates specifically empowered by the constitution


and the recommendation of the high court may take cognizance of any offense
• Upon receiving a complaint of facts which constitute such offense
• Upon a report in writing of such facts made by any police officer
• Upon information received from any person other than a police officer, or upon his
knowledge or suspicion.
For what cognizance is to be taken
• Court is to take cognizance of offence
• Court is competent to call/summon any person and to join his co-accused
during trial
Cont..

• Before I discuss the basics of the trial I want to emphasize that


….The constitution of Botswana guarantees the right to protection
of the law regardless of race, place of origin, political opinion, color
creed or sex as well as the right to protection from cruel and
inhuman punishment (Section 3 and Section 7 Constitution of
Botswana)
RECAP-Pre-trial Processes
• Before the commencing of the trial, the investigation is done by the police.
• Refer to on the Criminal Justice Process as it pertains to the police previous
lecturers (including recommended readings)
TRIAL PROCESS
SOME BASIC PRINCIPLES AND CHARACTERISTICS

• 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:

1. The opening proceedings,


2. Examination of evidence,
3. Questioning of the defendant,
4. The closing arguments.
THE OPENING PROCEEDINGS
• Opening of a trial- The court address the defendant and ask that he or she identify
him or herself.
• Charge will be read by the prosecutor attending the trial.
• The court will advise the defendant of his or her rights and give the defendant and
defence counsel an opportunity to make statements.
• The defendant has the right to remain silent and is not required to make any
statement.
• In practice, most defendants make a statement and admit their guilt
EXAMINATION OF EVIDENCE
• Begins with the prosecutor’s opening statement, which outlines the facts he or she intends to prove at trial.
• Next, the prosecutor’s evidence will be introduced.
• Real evidence will be displayed, testimony of witnesses will be heard, and documentary evidence will be read
in full or be summarized.
• Admissibility of documentary evidence is limited. For more information, see criminal procedure and
evidence on the hearsay rule (Sec225).
• Following the prosecutor’s case in chief, the defence counsel will present its evidence in rebuttal.
• As regards the testimony of witnesses, the party calling the witness will first question the witness, and the
other party will cross-examine.
• The party calling the witness is entitled to ask follow-up questions, and at the end, the court will ask
supplementary questions if necessary.
QUESTIONING OF THE DEFENDANT

• The defendant will be placed under questioning:


• First by the defence counsel, then by the prosecutor, and finally by the court.
• Defendants are not questioned as witnesses.
• They are not placed under oath, and they may refuse to answer any questions
at any time.
• Despite their right to remain silent, most defendants voluntarily answer
questions.
The Closing Arguments

• 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

• Consent is essentially a waiver of the right to confront and cross-examine witnesses.


• When these rights are waived, there is no further need to exclude the hearsay in question.
• In practice, consent is very widely used.
• As most defendants do not contest their guilt and their only interest is in sentencing,
documentary evidence offered by the prosecutor, such as police reports, written statements
of witnesses, and the defendant’s confessions outside trial, are admitted with the defendant’s
consent.
• This practice enables speedy disposition of uncontested cases.
Confessions
• Confessions are inadmissible unless voluntarily made.
• The objectives of the voluntariness requirements are generally understood as
follows:
• (i) to exclude false confessions;
• (ii) to protect the rights of the accused, especially the right to remain silent;
• (iii) to exclude illegally obtained confessions.
Exclusionary Rule
• A legal rule that bars unlawfully obtained evidence from being used in court
proceedings.
• According to Court precedents, serious violations of procedural rules can
result in the inadmissibility of illegally obtained evidence.
• The application of the exclusionary rule is decided on a case-by-case basis,
and factors taken into consideration include: the situation under which the
illegality occurred; the seriousness of the violation of the law; the intention
of the investigating officers, and the need to prevent future illegality.
USEFUL REFERENCES


(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

• Indeterminate sentencing: A prison sentence consisting of a


range of years to be determined by the individual’s behavior,
rather than one
• Philosophy: Focus on the person convicted of the crime
• Medical model: Seek to “cure: the person convicted a crime
Indeterminate Sentencing
Range: 5 – 20 years
• Example: Defendant will be imprisoned for not less than 5 years to a
maximum of 20 years.
• The sentence is not determined.
Determinate Sentencing
• A determinate prison sentence is where the court sets a fixed length for the
prison sentence.
• Whatever the sentence, the individual is aware of his or her sentencing
structure and the amount of time to be served.
• Example: 15 years
• Maximum amount of time for burglary might be 15 years
• Person with a first-time offense may receive 5 years; repeat “offender” 15 years
• The sentence is determined
Mandatory Sentencing
• A penalty determined by legislation that must be imposed by a judge on an
offender convicted of a particular offence regardless of the offender’s personal
circumstances.
• Mandatory minimum sentencing laws set minimum sentences for certain crimes
that judges cannot lower, even for extenuating circumstances.
• In the most severe category, the sentence is fixed and the judicial officer has no
discretion to deviate from the penalty.
• An example of such a sentence is the mandatory death sentence in Botswana that
applies to any conviction for murder without extenuating circumstances.
Cont..
• Other most common of these laws deal with stock theft. For example, in
Botswana a first conviction for stock theft will carry a penalty of a minimum
of 5 years and a maximum of 10 years while a second conviction will attract
a minimum of 7 years and a maximum of 14 years.
• Typically, people convicted of certain crimes must be punished with at least a
minimum number of years in prison.
• Require judges to sentence people convicted of a crime to a specified
minimum prison term for a specific crime.
Mandatory

• Some of the problems:


• Ineffective in addressing drugs and stock theft crimes due
to supply and demand
FACTORS USED TO DETERMINE THE TYPE OF
SENTENCING

• Past criminal history.


• An individual who is committing his or her first offense is more likely
to inspire leniency and compassion in the judge and to receive a
concurrent sentence.
• An individual, on the other hand, who has been convicted before
(especially of a similar crime) will probably receive a consecutive
sentence.
FACTORS USED TO DETERMINE THE TYPE OF 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

• The judge will also consider mitigating factors.


• Unfortunately, the law is not black and white and neither are the crimes that are committed.
• The defense attorney will bring to light mitigating or extenuating factors that might inspire
the judge to be lenient.
• For example, an eighteen-year-old boy who was raised in an abusive home and assaulted his
father may receive a concurrent sentence on the basis that he was provoked his entire life.
• Although some judges are more inclined to consider these types of mitigating factors than
others, concurrent sentences are handed down most the time.
Section 27 of the Penal Code chapter 08:01

• 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

• These are sentences meted out in a court of law that requires


supervision of those sentences outside of prison.
• They serve as diversion measures away from the prison
• Thus, it is punishment other than imprisonment
Measures
Fine
• Those convicted of an offense are ordered to pay a stipulated amount of
money depending upon their ability to pay and the seriousness of the
offense the have committed.
• The judges usually pronounce that if the offender fails to pay the fine within
the stipulated period; then they will be sent to prison for the duration
determined by the amount of the fine and gravity of the offense they are
convicted of.
Community service order/supervision or Residential Community
Correction

• The accused is closely monitored and supervised within the


community and away from the prison.
• In this case, the accused is ordered to render their service or labor
for free to a public agency for the duration stipulated by the
courts.
• The accused does not get paid for the work they do for the public
agency.
Discharge

• Based on the age, health, mental condition, gravity of the


offense, and criminal history of the accused, the judicial
officer may decide to let the accused free with caution or
reprimand.
• This is called a conditional discharge.
Suspended Sentence

• The accused may be given a prison sentence of say


2 years wholly suspended for 1 year.
• If, during the suspension, the accused commits a
similar offense or a different one, then the
suspension will be lifted and replaced by the prison
term.
Corporal Punishment

• 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

• The accused may be ordered to return stolen property to


the rightful owner or to financially compensate them.
ADVANTAGES OF NON CUSTODIAL MEASURES

 Minimize the harmful effects of imprisonment especially on young and first


time offenders
 Reduce the costs of imprisonment and other forms of punishment
 Help address prison crisis and all the problems afflicting the prison such as
overcrowding and associated problems.
 Some non-custodial measures are re-integrative i.e. they allow the offender to
re-settle smoothly into the community and reduce the stigma attached to
imprisonment
DISDVANTAGES OF NON CUSTODIAL SENTENCES

 The community may be placed at risk by allowing potentially dangerous criminals to


remain in their midst
 The community may lose confidence in the protective role and effectiveness of the
criminal justice system

• 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

• What do the public really feel about


non-custodial penalties?

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