Matere v The State (Criminal Appeal No. 37 of 1995 ) [1996] BWCA 32 (1 July 1996)

2 he did not commit the same offence during that period. He was also ordered to pay compensation to the complainant of P3, 294.00 which was the value of the property destroyed.

The Particulars of the Offence allege that the appellant, on 11 September, 1994, at Male settlement in the Kgalagadi District, wilfully and unlawfully damaged some clothes and household items valued at P2394 and the sum of P900 (being the property of Gaolatlhe Baumake), by setting them on fire.

The appellant had an amorous relationship with the complainant. On the night of 11 th September, 1994 he was visiting the complainant's house who was a married woman. He found her absent and waited for her in the house which he had found unlocked. When she returned later that evening she arrived in a motor car driven by another man. The appellant strongly suspected that she had another but discreet relationship with this

3 other man. The appellant then threatened to teach the complainant a lesson she would never forget for the rest of her life. He took the household items, listed in the charge sheet, outside the house and set them on fire thus destroying them. They consisted of a large number of domestic and personal items, including curtains from windows, plastic chairs, dishes and personal clothing, all belonging to the complainant. In his judgment on sentence the magistrate said the appellant burnt most of the complainant's household items and left her almost destitute.

In addressing us on sentence, counsel for the appellant submitted in the first place that the magistrate should have allowed an attempt at reconciliation, in terms of section 321 of the Criminal Procedure and Evidence Act [Cap. 08:02] when an adjournment for that purpose was requested by defence counsel at the start of the trial proceedings. However, when this court pointed out to him that the magistrate had no option but to refuse the request, as the prosecutor had not consented to such procedure as required by the clear terms of that section and had in fact opposed it, counsel for the appellant accepted this interpretation and abandoned this line of argument. In the second place he also abandoned another line of argument to the effect that the

4 magistrate had exceeded his powers in imposing a compensation order of P3 294.00 when his jurisdiction was limited at the most to P2 000 in terms of section 17 of the Magistrates' Courts Act (Cap. 04:04). The court drew his attention to the fact that this Section related to civil and not criminal proceedings in the court a quo.

The counsel for the appellant then developed his main line of argument as to why the sentence was excessive. He explained that, as bail had been refused pending the decision in this appeal, the appellant had already served his sentence of six months' imprisonment. However, the effect of the imposition of such a custodial sentence had had, according to counsel, a severe effect on the appellant's public life. He was a well respected citizen who greatly participated in the development of his own village. He was chairman, for example, of the Kang Brigades development Trust which is responsible for the 20-year development for Kang Village. We were given a copy of the trust Deed for this organisation which, at page 8 thereof, contains a Clause 8.4 which appears to indicate that conviction of a crime or misdeed punishable by imprisonment without the option of a fine, would disbar such a person from being

5 a Trustee for a period of 5 years. (I note the word "now" in that sub-clause is probably a misprint for "not"). The appellant is also a member of various other committees as listed in the magistrate's judgment at page 5. In these circumstances, counsel said if a fine were now substituted for the custodial sentence the appellant would be able to resume his public life, albeit he had already served his sentence.

Counsel for the appellant also submitted that the magistrate had misdirected himself by not taking into account that the appellant had attempted a reconciliation. There is no substance in this submission. The magistrate was fully aware of this factor, having dealt pertinently with it. I find that the magistrate had not misdirected himself in this regard.

Furthermore, counsel for the appellant urged upon us that the appellant had showed remorse by indicating his willingness to proceed to reconciliation at the beginning of the trial. In the special circumstances of this case he asked us to recall the imposition of a prison sentence on the appellant and impose a fine, of say PI 000, which would be payable in addition to the compensation order of P3 294. The appellant was self-employed as a farmer.

I have carefully considered the appellant's counsel's plea in mitigation which is in similar terms to that submitted to the magistrate. It is clear from the magistrate's judgment on sentence that he took into account all the personal circumstances of the appellant. He knew the appellant was then a 31-year old first offender who lived with his disabled mother who could not fend for herself. He was well aware of the appellant's public duties. It is quite clear that he took all the relevant factors into account in selecting an appropriate sentence and anxiously considered the matter. He noted, as he was entitled to do, the prevalence of such offences in his own locality and considered that deterrence of some sort was necessary. I would add that if persons wish to play a commendable and active part in local community life they should be careful to set a good example to other fellow citizens. This is one of the responsibilities of those who engage in public life.

I have not been persuaded that this case is one where the Court of Appeal should interfere with the sentence passed by the magistrate. The matter of sentence lies in the discretion of the trial court and this court will interfere with that discretion only if the trial court has misdirected itself or if as stated in the leading case of Lennox Malixole Maeubane v. The State Criminal Appeal

4/1992. by Amissah, J.P. at page 8, the sentence imposed by the trial court is so disproportionate when compared with the offence committed that "it induces a sense of shock in the court". I am quite satisfied that the facts in this case do not establish any misdirection on the part of the magistrate nor do they create a sense of shock.

Botswana: Court of Appeal

Matere v The State (Criminal Appeal No. 37 of 1995 ) [1996] BWCA 32 (1 July 1996)