Criminal Procedure And Evidence - Punishments (Ss 298-315)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1475

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PART XVIII
Punishments (ss 298-315)

[Ch0802s298]298. Sentence of death upon a woman who is pregnant

(1) Where a woman convicted of an offence

punishable with death alleges that she is pregnant, or where the court before

which a woman who is so convicted thinks fit to order, the question whether or

not the woman is pregnant shall, before sentence is passed on her, be

determined by the court.

(2) The question whether the woman is pregnant or

not shall be determined on such evidence as may be led before the court either

on the part of the woman or on the part of the State, and the court shall find

that the woman is not pregnant unless it is proved affirmatively to its

satisfaction that she is pregnant.

(3) Where in any proceedings under this section

the court finds that the woman in question is not pregnant, the woman may

appeal to the Court of Appeal and the Court of Appeal, if satisfied that for

any reason the finding should be set aside, shall quash the sentence passed on

her and, in lieu thereof pass on her a sentence of imprisonment for life.

[Ch0802s299]299. Manner of carrying out death sentences

(1) No sentence of death shall be carried into

effect except upon the special warrant of the President, to whom a record of

all proceedings in the case shall be forwarded as soon as may be after sentence

together with a report upon the case from the officer presiding at the trial.

(2) Such special warrant shall be issued to the

Sheriff or his deputy who shall, as soon after the receipt of such special

warrant as fitting arrangements for the carrying out of the sentence can be

made, execute such special warrant in the place appointed therein:

Provided that the Sheriff or his deputy shall not

execute the warrant aforesaid if at any time the President by written notice

under his hand to the Sheriff or Deputy-Sheriff intimates that he has decided

to grant a pardon or reprieve to the person so sentenced or otherwise to

exercise the prerogative of mercy with regard to him. Any notice by the

President under this proviso shall be construed for all purposes as a

cancellation of the warrant aforesaid.

[Ch0802s300]300. Cumulative or concurrent sentences

(1) When a person is convicted at one trial of two

or more different offences, or when a person under sentence or undergoing

punishment for one offence is convicted of another offence, the court may

sentence him to such several punishments for such offences or for such last

offence (as the case may be) as the court is competent to impose.

(2) Such punishments, when consisting of

imprisonment, shall commence the one after the expiration, setting aside or

remission of the other, in such order as the court may direct, unless the court

directs that such punishments shall run concurrently.

[Ch0802s301]301. Conviction of other charges pending

Where an accused person is found guilty of an

offence, the court may, in passing sentence, take into consideration any other

charge of a similar offence then pending against the accused if the accused

admits the other charge and desires it to be taken into consideration and if

the prosecutor of the other charge consents.

[Ch0802s302]302. Imprisonment in default of payment of fines

Whenever a court has imposed upon any offender a

sentence of a fine without an alternative sentence of imprisonment, and the

fine has not been paid in full or has not been recovered in full by a levy, the

court which passed sentence on the offender may issue a warrant directing that

he be arrested and brought before the court which may thereupon sentence him to

such term of imprisonment as could have been imposed upon him as an alternative

punishment in terms of section 29 of the Penal Code or other written law.

[Ch0802s303]303. Recovery of fine

(1) Whenever an offender is sentenced to pay a fine,

the court passing the sentence may, in its discretion, issue a warrant

addressed to the Sheriff or messenger of the court authorizing him to levy the

amount by attachment and sale of any movable property belonging to the offender

although the sentence directs that, in default of payment of a fine, the

offender shall be imprisoned. The amount which may be levied shall be

sufficient to cover, in addition to the fine, the costs and expenses of the

warrant and of the attachment, and sale thereunder.

(2) Such warrant when issued by the High Court may

be executed anywhere within Botswana.

(3) Such warrant, if issued by a magistrate's

court, shall authorize the attachment and sale of the movable property within

the local limits of the jurisdiction of such magistrate's court, and also

without such limits when endorsed by the magistrate having jurisdiction in the

place where the property is found.

(4) If the proceeds of sale of the movable

property are insufficient to satisfy the amount of the fine and the costs and

expenses aforesaid the High Court may issue a warrant, or in the case of a

sentence by any magistrate's court may authorize such magistrate's court to

issue a warrant, for the levy against the immovable property of the offender of

the amount unpaid.

(5) When an offender has been sentenced to pay a

fine only or, in default of payment of the fine, to imprisonment, and the court

issues a warrant under this section, it may suspend the execution of the

sentence of imprisonment and may release the offender upon his executing a bond

with or without sureties as the court thinks fit, on condition for his

appearance before such court or some other court on the day appointed for the

return to such warrant, such day not being more than 15 days from the time of executing

the bond; and in the event of the amount of the fine not having been recovered,

the sentence of imprisonment shall be carried into execution at once.

(6) In any case in which an order for the payment

of money has been made on non-recovery whereof imprisonment may be awarded and

the money is not paid forthwith, the court may require the person ordered to

make such payment to enter into a bond as prescribed in subsection (5), and in

default of his doing so may at once pass sentence of imprisonment as if the

money had not been recovered.

(7) When an offender has been sentenced to pay a

fine only or, in default of payment of the fine, to a period of imprisonment,

and before the expiry of that period any part of the fine is paid or levied,

the period of imprisonment shall be reduced by a number of days bearing as

nearly as possible the same proportion to the number of days to which such

person is sentenced as the sum so paid and levied bears to the amount of the

fine. An amount which would reduce the imprisonment by a fractional part of a

day shall not be received. No payment of any sum under this section need be

accepted otherwise than during the ordinary office hours.

[Ch0802s304]304. Manner of dealing with convicted juveniles

(1) Any court in which a person under the age of

18 years has been convicted of any offence may, instead of imposing any

punishment upon him for that offence (but subject to the provisions of section

26(2) of the Penal Code) order that he be placed in the custody of any suitable

person designated in the order for a specific period:

Provided that such order may be made in addition

to the imposition of corporal punishment; and provided further than no order

made in terms of this subsection shall direct that the convicted person shall

remain in the custody in which he has been placed after he attains the age of

18 years.

(2) Any person who has been dealt with in terms of

subsection (1) and who absconds from the custody in which he was placed may be

apprehended without warrant by any policeman and shall be brought as soon as

may be before a magistrate of the district in which he was apprehended.

(3) When any person is brought before a magistrate

under the provisions of subsection (2) the magistrate shall, after having

questioned the absconding person as to the reason why he absconded, order-

(a) that he

be returned to the custody from which he absconded;

(b) that he

be placed in the custody of another person for the remaining period of the

original order; or

(c) that he

be committed to prison for the remaining period of the order made under

subsection (1).

[Ch0802s305]305. Corporal punishment

(1) When a person is sentenced to undergo corporal

punishment such sentence shall be a sentence of caning and shall be in

accordance with the following provisions-

(a) the

caning shall be carried out in a manner and with a cane of a type approved by

the Minister, who may approve different types of cane for different classes of

person;

(b) no

caning shall be inflicted on any convicted person until he has been certified

by a medical officer to be fit for such punishment; caning shall only be

inflicted in the presence of a medical officer, or, if one is not available, in

the presence of a magistrate; the medical officer or magistrate shall

immediately stop the infliction of further punishment if he considers that the

convicted person is not in a fit state of health to undergo the remainder

thereof and shall certify the fact in writing;

(c) whenever

under the provisions of paragraph (b) any medical officer or magistrate

has certified that any prisoner sentenced to undergo caning is not in a fit

state of health to undergo the whole or the remainder thereof he shall

immediately transmit his certificate to the court which passed the sentence or

to a court having jurisdiction which may substitute another punishment in lieu

of the sentence of caning; such prisoner may lawfully be kept in custody

pending the decision of the court to which the medical officer or magistrate

has transmitted his certificate as hereinbefore provided;

(d) no

sentence of caning shall be carried out by instalments;

(e) where

at any one sitting of a court more than one sentence of caning is imposed on

any person, the sentences so imposed shall be deemed to be one sentence for the

purposes of subsection (2) of section 28 of the Cap. 08:01 Penal Code.

(2) Every sentence of corporal punishment shall be

carried out privately in a prison:

Provided that in the case of a person under 18

years of age the court before which such person is convicted may direct that

the punishment be administered by such person and in such place as it may

specify and in such case the parent or guardian of such first mentioned person

shall have the right to be present.

(3) The Minister may by statutory instrument make

an order specifying such places as he may consider proper for administering

corporal punishment in traditional manner with traditional instruments.

[Ch0802s306]306. Recognizances to keep the peace and be of good behaviour

If the conditions upon which any recognizance or

security under section 31 of the Penal Code was given are not observed by the

person who gave it, the court may declare the recognizance or security to be

forfeited and any such declaration or forfeiture shall have the effect of a

judgment in a civil action in that court.

[Ch0802s307]307. Payment of fine without appearance in court

(1) When any person has been summoned or warned to

appear in a magistrate's court or has been arrested or has been informed by a

peace officer that it is intended to institute criminal proceedings against him

for any offence, and an officer holding a rank or post to be designated by the

Minister from time to time for the purposes of this section by order published

in the Gazette, has reasonable grounds for believing that the court

which will try the said person for such offence will, on convicting such person

of such offence, not impose a sentence of imprisonment or corporal punishment

or a fine exceeding P200, such person may sign and deliver to such officer a

document admitting that he is guilty of the said offence; and-

(a) deposit

with such officer such sum of money as the latter may fix; or

(b) furnish

to such officer such security as the latter deems sufficient, for the payment

of any fine which the court trying the case in question may lawfully impose

therefor, not exceeding P200 or the maximum of the fine with which such offence

is punishable, whichever amount is the lesser,

and such person shall, subject to the provisions of subsection (8),

thereupon not be required to appear in court to answer a charge of having

committed the said offence.

(2) Such person may at any time before sentence is

passed upon him in terms of subsection (5) submit to any person in charge of

the aforesaid document an affidavit setting forth any facts which he desires to

bring to the notice of the court in mitigation of the punishment to be imposed

for the said offence, and such affidavit shall be submitted together with the

said document to the court which is to pass the sentence.

(3) An officer designated as aforesaid, if he is

not the public prosecutor attached to the court in which the offence in

question is triable, shall, as soon as practicable after receiving a document

referred to in subsection (1), transmit it to such public prosecutor.

(4) Whenever such public prosecutor has received

any such document he shall transmit it to the clerk of the said court:

Provided that before doing so he may report the

matter to the Director of Public Prosecutions and ask him for his directions

thereon.

(5) After receiving such document the clerk of

such court shall cause it to be numbered and filed consecutively in the records

of that court in a file to be known as the criminal record (admission of guilt)

file, which file shall for the purposes of any written law be deemed to be a

criminal record book of that court and the person in question shall, subject to

the provisions of subsection (8), thereupon be deemed to have been convicted by

such court of the said offence, and such court shall pass sentence upon such

person in accordance with law:

Provided that such court may decline to pass

sentence upon him and may direct that he be prosecuted in the ordinary course,

and in that case, if the said person has been summoned or warned in terms of

subsection (1), he shall be summoned afresh to answer such charge as the public

prosecutor may prefer against him.

(6) If the court imposes a fine on such person

such fine shall be paid out of any sum deposited in terms of paragraph (a)

of subsection (1), or if security has been given in terms of paragraph (b)

of subsection (1) and the fine has not been paid in accordance with the terms

of the security, the latter, if corporeal property, may be sold by public

auction and the fine paid out of the proceeds of the sale:

Provided that if the whereabouts of such person

are known, written notice of the intended sale and of the time and place

thereof shall be given to him not less than three days before the sale takes

place.

(7) If any balance remains of any such deposit or

of the proceeds of any such sale, after payment of such fine, such balance

shall be paid over to the person who made such deposit or gave such security

and if such deposit or such security is insufficient to pay the fine imposed,

the balance remaining due shall be recovered from the person upon whom the fine

was imposed in the manner provided in this Act.

(8) At any time before sentence has been passed

upon the person in question under subsection (5), the Director of Public

Prosecutions may direct that no action be taken in the matter under subsections

(5), (6) and (7), but that such person be brought to trial in the ordinary

manner:

Provided that in that case, if such person has

been summoned or warned in terms of subsection (1), he shall be summoned afresh

to answer such charge as the Director of Public Prosecutions may direct.

(9) If at the conclusion of the trial referred to

in subsection (8) the person tried is sentenced to pay a fine, the provisions of

subsections (6) and (7) shall apply.

(10) If at the conclusion of any proceedings

against any person under this section, no fine is imposed upon him, the money

or security deposited by or on behalf of such person shall be returned to the

person who made the deposit.

[Ch0802s308]308. Powers as to postponement and suspension of sentences

(1) Whenever a person is convicted before the High

Court or any magistrate's court of any offence other than an offence specified

in the Second Schedule, the court may in its discretion postpone for a period

not exceeding three years the passing of sentence and release the offender on

one or more conditions (whether as to compensation to be made by the offender

for damage or pecuniary loss, good conduct or otherwise) as the court may order

to be inserted in recognizances to appear at the expiration of that period, and

if at the end of such period the offender has observed all the conditions of

the recognizances, the court may discharge the offender without passing any

sentence.

(2) Whenever a person is convicted before the High

Court or any magistrate's court of any offence other than an offence specified

in the Second Schedule, the court may in its discretion pass sentence, but

order that the operation of the whole or any part of the sentence be suspended

for a period not exceeding three years, which period of suspension, in the

absence of any order to the contrary, shall be computed in accordance with the

provisions respectively of subsections (3) and (4). Such order shall be subject

to such conditions (whether as to compensation to be made by the offender for

damage or pecuniary loss, good conduct or otherwise) as the court may specify

therein.

(3) The period during which any order for the

suspension of a part of a sentence, made under subsection (2) and affecting a

sentence of imprisonment shall run, shall commence on the date upon which the

person convicted was lawfully discharged from prison in respect of the

unsuspended portion of such sentence, or if not then discharged because such

person has to undergo any other sentence of imprisonment, such period shall

commence upon the date upon which such person was lawfully discharged from

prison in respect of such other sentence. If any portion of such other sentence

is itself suspended, the periods of suspension of all such sentences shall, in

the absence of any order to the contrary, run consecutively in the same order

as the sentences.

(4) The period during which any order for the

suspension of the whole of a sentence of imprisonment shall run, shall

commence-

(a) where

the convicted person is not serving another sentence, from the date from which

the sentence wholly suspended was expressed as taking effect, or took effect;

and

(b) where

the convicted person is serving another sentence, from the date of expiration

of that sentence including any period thereof which may be subject to an order

of suspension.

(5) If during the period of suspension of the

whole of a sentence the convicted person is sentenced to imprisonment the

portion then remaining of the sentence wholly suspended shall be deemed to be

consecutive to the sentence of imprisonment subsequently awarded.

(6) If the offender has, during the period of

suspension of any sentence under this section, observed all the conditions

specified in the order, the suspended sentence shall not be enforced.

[Ch0802s309]309. Commencement of sentences

Subject to the provisions of section 308, a

sentence of imprisonment shall take effect from and include the whole of the

day on which it is pronounced unless the court, on the same day that sentence

is passed, expressly orders that it shall take effect from some day prior to

that on which it is pronounced.

[Ch0802s310]310. Payment of fines by instalments

Whenever a person is convicted before the High

Court or any magistrate's court of any offence other than an offence specified

in the Second Schedule, the court may in its discretion order that any fine

imposed on such person be paid in instalments or otherwise on such dates, and

during such period not exceeding 12 months from the date of such order, as the

court may fix therein. If on such date or dates the offender has made all

payments in accordance with the order of the court, no warrant shall be issued

committing the offender to prison to undergo any alternative imprisonment

prescribed in the sentence in default of payment of the fine.

[Ch0802s311]311. Consequences of failure to comply with conditions of postponement

or suspension of sentence

(1) If the conditions of any order made, or

recognizance entered into, under the provisions of section 308 or section 310

are alleged not to have been fulfilled, the local public prosecutor may,

without notice to the offender, apply to any magistrate's court within the

local limits of whose jurisdiction the offender is known or suspected to be,

for a warrant for the arrest of the offender for the purpose of bringing him

before the court to show cause why such offender shall not undergo the sentence

which has been, or may be, lawfully imposed.

(2) Any application made under subsection (1)

shall be supported by evidence in the form of an affidavit or on oath, that the

order or recognizance is still binding upon the offender and that such offender

has failed, in a manner to be specified, to observe the conditions thereof.

(3) The court to which application is made under

subsection (1) may, if it is satisfied that the offender ought to be called

upon to show cause why he shall not undergo the sentence which has been, or may

be, imposed, grant a warrant for the arrest of such offender for the purpose of

bringing him to court to show cause as aforesaid.

(4) The court, before which any offender appears

in consequence of an application under subsection (1), shall read, or cause to

be read, to the offender, such application and the evidence given in support

thereof, and shall thereupon call upon the offender to say whether he opposes

such application.

(5) If such offender does not oppose the

application and admits that he has not fulfilled the conditions of the order

made, or recognizance entered into, the court may order that the offender shall

undergo the sentence which was, or is then, imposed upon him or may make an

order under section 312 if the original order was made under section 308(2) or

under section 310.

(6) If the offender denies the allegations and

opposes the application, the court shall proceed to hear the matter in

accordance with the principles generally applicable to criminal trials under

this Act, and if it finds that the offender has not fulfilled the conditions of

any order made, or recognizance entered into, the court may thereupon order

that the offender shall undergo the sentence which was, or is then, imposed

upon him, or may make an order under section 312 if the original order was made

under subsection (2) of section 308 or under section 310.

[Ch0802s312]312. Further postponement or deferment of sentence

The court before which an offender appears may, if

the original order related to the suspension of a sentence under section

308(2), or to the payment of a fine by instalments or otherwise under section

310, and if the offender proves to the court's satisfaction that he has been

unable through circumstances beyond his control to fulfil the conditions of

such order, in its discretion grant an order further suspending the operation

of the sentence or further deferring payment of the fine, subject to such conditions

as might have been imposed at the time the original order was made.

[Ch0802s313]313. Magistrates' courts not to impose sentences of less than four days

No person shall be sentenced by a magistrate's

court to imprisonment for a period of less than four days, unless the sentence

is that the offender be detained until the rising of the court.

[Ch0802s314]314. Discharge with caution or reprimand

Whenever a person is convicted before the High

Court or any magistrate's court of any offence other than an offence specified

in the Second Schedule, the court may in its discretion discharge the offender

with a caution or reprimand, and such discharge shall have the effect of an

acquittal, except for the purpose of proving and recording previous

convictions.

[Ch0802s315]315. Regulations

The President may make regulations, not

inconsistent with this Act, as to all or any of the following matters, namely,

the appointment, powers and duties of persons (to be known as probation

officers) to whom may be entrusted the care or supervision of offenders whose

sentences of imprisonment have been suspended under this Act, the circumstances

under which courts of law may entrust such care or supervision to probation officers,

the conditions which shall be observed by such offenders while on probation and

the varying of such conditions, and generally for the better carrying out of

the objects and purposes of this Part.