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Kashweka v The State (Criminal Appeal No. 10 of 1984 ) [1984] BWCA 15 (23 May 1984)

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IN THE COUHT OF APPEAL OF BOTSWANA
Criminal Appeal No. 10 of 1984
High Court Criminal Appeal No. 10 of l983
In the matter between:
RICHARD KASAKA KASHWEKA  Appellant
and
THE STATE        Respondent
Appellant in person
Mrs. L. I. Dambe for the State
JUDGMENT
CORAM:
Maisels, JP DENDY YOUNG, JA ISAACS, AJA
ISAACS. AJA
The appellant in this case was charged with the crime, Stealing goods in Transit in contravention of section 280(c) read with 276 of the Penal Code. The particulars of the charge were that he did steal P19 000 the property of Barclays Bank whilst such property was in transit from Volkskas Limited Kempton Park Branch, Johannesburg to Barclays Bank of Botswana Industrial Branch, Gaborone.
The appellant pleaded guilty to the charge and the racts relating to the offence were read by the Prosecutor. The relevant portion of the facts were as follows:-

The appellant had been employed by Air Botswana since July 1981. His duties, inter alia were to receive passengers and sometimes to assist freight officers in receiving cargo from aircrafts. The appellant and his co-workers had an office in which there was a safe in which valuable cargo was kept under lock. All employees of Air Botswana based at Gaborone Airport had access to this safe. On the 9th September 1982 a valuable parcel received from an aircraft was locked into the safe. This was according to the way-bill from the aircraft which showed that the parcel contained Botswana Bank Notes which were being sent by Volkskas Ltd. to a branch of Barclays Bank.
The Barclays Bank officials were informed and were requested to come to the Airport office to collect the parcel the same day. They did not come that day. In the evening of that day the appellant opened the safe and took the parcel to his place, opened it and found it contained P19 000. He kept this money.
On the 13th September 1982 the parcel was noticed to be missing from the safe. The police were informed, and as a result of their enquiries the appellant was arrested. He admitted the offence and took the police to the place of his brother where the money was kept and he handed over to the police P18 075.00 as part of the stolen money. He also handed over to the police certain property bought with the stolen money which which was afterwards sold and realised the sum of P260.81.
This left a shortfall of P664.19 being
money not recovered. The appellant co-operate*
with the police in their investigations.
The appellant agreed that the awve facts were correct.
He was found guilty on his plea and evidence in mitigation was adduced on his behalf.
2

The appellant gave evidence to the effect that he had worked for Air Botswana since 1976. He had been transferred from Maun to Gaborone on 2nd April 1983. He was married with 3 children the eldest being 7 years old. When he first came to Gaborone he was first accommodated at the Holiday Inn. He had stayed there for 1 month and 3 days. This had been arranged by his employer and he was assured that Air Botswana would pay all the expenses. His usual monthly salary was approximately P270 per month. He was asked by his employer to meet part of the accommodation at the Holiday Inn. His salary was deducted to the extent that in May he was left with a balance of P49 in June with a balance of P70 and in July P108.
He was unable to make ends meet. He complained to Air Botswana and threatened to resign. He had to support not only his family but also a sister who had a child and no parents. He himself was not in good health suffering from Pulmonary T.B. He stole the money because his income was not sufficient for his needs. A witness was also called as to the good character of the appellant.
The appellant was not cross-examined on his
evidence so the magistrate must have considered it to be
true. In fact his judgment shows that he considered this.
He however, sentenced the appellant to imprisonment for
6 years of which 3 years were suspended for 3 years.
The appellant appealed to the High Court against the severity of sentence but his appeal was dismissed by the learned Chief Justice.
He applied to this Court for leave to appeal. There was no opposition by State Counsel and leave was granted.
3

The appellant argued his appeal in person, stating the facts as appeared in the trial Court. He asked for a reduction of his sentence*
Mrs. Dambe, Counsel for the State did not oppose reduction, she acted very fairly stating her reasons.
This court after considering the matter came to the conclusion that having regard to all the circumstances of the case the sentence imposed by the magistrate was greater to such an extent than the sentence the members of this Court would have imposed as to give this Court the right and also the relief to interfere with the sentence of the trial Court.
We accordingly set the sentence aside and
substituted a sentence of 3 years' imprisonment of which
1 year was suspended for a period of 3 years on condition
that he is not convicted of any crime involving dishonesty
for which he is sentenced to a period of imprisonment
without the option of a fine committed during the period of
suspension.
prison The'sentence was to begin as from 14th September
1982 on which date the appellant was arrested and has been in
custody since.
For the above reasons we upheld the appeal to the extent set out.
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GIVEN at the Court of Appeal, Lobatse, this 23rd day of May 1984.

I. ISAACS
ACTING JUDGE OF APPEAL

I agree:
I. A. MAISELS JUDGE PRESIDENT



H*'


I agree:
J. R. DENDY YOUNG JUDGE OF APPEAL

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