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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CRI) /04/2024
CRI/T/0046/16
In the matter between
JOBERE KELANE APPELLANT
VS
DIRECTOR OF PUBLIC PROSECUTION RESPONDENT
Quorum: DAMASEB AJA
CHINHENGO AJA
MATHABA AJA
FLYNOTE
Criminal law – Murder – Extenuating circumstances – Appeal against conviction – Sentence enhancement in absence of cross-appeal – Power of appellate court to vary sentence
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proprio motu – Manifestly lenient sentence – Sentencing discretion – Role of deterrence and public abhorrence in punishment.
The appellant was convicted of murder with extenuating circumstances by the High Court and sentenced to 13 years’ imprisonment together with a compensatory order of M10,000.00 to the deceased’s family in line with Sesotho restorative justice customs. He appealed against the conviction alone, raising grounds largely unrelated to the trial court's factual or legal findings, including allegations of a botched investigation and improper exclusion of others allegedly involved in mob justice. The Court of Appeal held that these grounds were improperly framed and did not undermine the trial court’s finding that the appellant alone poured petrol on the deceased and set him alight, causing death.
At the hearing of the appeal, the Court of Appeal, of its own motion, raised the issue of sentence adequacy and invited submissions. Both counsel agreed that the appellate court retained jurisdiction under s 9(4) of the Court of Appeal Act to enhance a sentence even in the absence of a cross-appeal. The Crown argued the sentence was manifestly lenient and undermined public confidence. The appellant's counsel urged judicial restraint, emphasising the payment of compensation and the passage of fifteen years since the offence.
The Court held that the sentence trivialised the gravity of the crime and failed to serve the ends of justice, deterrence, and public abhorrence. It enhanced the sentence to 18 years’ imprisonment, suspending 3 years for five years on condition of good behaviour.
Held –
(1) The grounds of appeal failed to challenge the trial court's core findings and were thus without merit.
(2) The trial court correctly convicted the appellant on both direct and circumstantial evidence.
(3) The Court of Appeal may enhance a sentence even where no appeal or cross-appeal on sentence has been filed, provided it accords procedural fairness.
(4) The original sentence was manifestly lenient in the circumstances and required correction to reflect the seriousness of the offence.
Appeal against conviction dismissed; sentence enhanced.
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JUDGMENT
CHINHENGO AJA: -
Introduction
1.
The appellant was charged with murder and tried in the High Court before Hlaele J. The indictment alleged that the appellant was guilty of murder “in that on or about the 7th day of August 2008, at or near Mazenoid Ha Paki in the District of Maseru [he] did unlawfully and intentionally kill Moeketsi Ntsasa.” He was convicted and sentenced to 13 years’ imprisonment and, as a measure of restorative justice, ordered to pay M10 000.00 as compensation to the deceased’s family. The conviction and sentence were pronounced on 17 August 2023. A reasonable explanation was given for the long delay in finalising the trial, otherwise I would have commented adversely on a fifteen-year long delay in completing the criminal trial. Appellant applied for condonation of late filing of his heads of argument as also did the representative of the Crown. There was no opposition to either application. We granted condonation by consent and proceeded to hear the appeal on the merits.
Notice of appeal
2.
The appellant was dissatisfied with the judgment of the High Court and appealed to this Court against conviction only. There is no cross appeal by the Crown. The appellant’s notice of appeal reads thus:
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“Kindly take notice that the above-mentioned appellant, being dissatisfied with the judgment [of the High Court] delivered by Her Ladyship Hlaele on the 17th of August 2023 hereby appeals to the Court of Appeal on the grounds contained in the Annexure hereto attached.
3.
The notice of appeal is defective in that it does not specify whether the appeal is against the whole judgment or part only of the judgment. From the papers filed it is , however, clear that the appeal is against the conviction only and not the sentence.
4.
The grounds of appeal are set out as follows-
“1. The Crown erred in misdirecting the court by charging one person but presenting evidence about ‘Mob Justice’ yet there was no mob before the trial court.
2.The Crown erred in failing to realise that investigation in this case was botched and therefore could not sustain any conviction.
3. The Honourable Court inadvertently erred in not realizing that the evidence did not support the charge.”
4. Appellant to reserve the right to file further grounds of appeal later.
5.
Rule 4(4) of the Court of Appeal Rules 2006 provides that
“The notice of appeal shall –
(a) state whether the whole or part of the judgment or order is appealed against. If a part only of the judgment or order is appealed against, the notice of appeal shall state which part; and
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(b) set forth concisely and clearly the grounds of objection to the judgment or order and such grounds shall set forth in separate paragraphs the findings of fact and conclusions of law to which the appellant objects and shall also state the particular respects in which the variation of the judgment or order is sought.”
6.
The notice of appeal and the grounds of appeal are improperly framed if not invalid. The notice of appeal creates the impression that the appeal is against the whole judgment or order of the High Court when the appeal is against conviction only. It therefore does not comply with Rule 4(4) of this Court’s rules. The first two grounds of appeal do not address issues that were placed before the judge, nor do they challenge the findings of the judge a quo. They address issues that the appellant believes the Crown should have attended to.
Appellant’s complaints/submissions
7.
Appellant has complained against the handling of the matter by the Crown. The first is a complaint that the Crown did not charge other persons who were or may have been involved in different degrees in the assault or killing of the deceased. The second is also a complaint against the Crown for what appellant describes as “a botched investigation.”
8.
These complaints, styled grounds of appeal, are improperly formulated and unusual. They are unusual in that they do not challenge the findings of the court a quo. They deal with extraneous issues which are not in the record of proceedings
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although they may be inferred therefrom. Every court tries accused persons who charged before it and deals with issues that arise from the charges. The fact that the appellant was the only person charged with the offence of murder where other persons may have been charged as well but were not, does not assist the appellant in dislodging the charge against him. Equally, the complaint that the investigation was botched does not necessarily assist the appellant in answering the charge of murder levelled against him. To this extent, unless the appellant can show how the failure to charge other persons with the same offence or how the ‘botched investigation’ impacts on his case or situation, then the two purported grounds are of no significance to his defence.
9.
In advancing the first ground of appeal, the appellant, at paragraph 2 of his heads of argument, states:
“It is the defence submission that the [appellant] was used as an escape goat and the real culprits were not brought before court. The allegation was that the deceased had broken into the appellant’s business and had stolen some stock.”
10.
At paragraph 7 of the heads of argument, he states-
“The policeman became a witness. Appellant was charged alone for murder. All people who planned the murder of the deceased were not before the court.1”
11.
In respect of the second ground of appeal, appellant states-
1 See paras 2 and 7 of appellant’s heads f argument
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“[8] The investigation was carried out in such a way that it should point at the appellant alone or at least his family since we assume that whatever happened at that place was because of theft at the appellant’s place. The peace officers were not charged, the ‘mob’ was not charged but Her Ladyship in her judgment sent a strong warning in to the mob without punishing the culprits. We submit that the Crown has misdirected the court by charging the appellant and led evidence that it was not the appellant who alone committed the offence.
[10] The defence standpoint is that it was not the appellant who committed the murder. The investigation was botched cup.
[11] Any [botched] investigation can make a person who is not guilty of an offence pay for the rest of his life and the bleak side of the coin being, one who did an act against the spirit of the law, is freed. It is said the law should not sit simply, while those who defy it go free and those who seek its protection lose hope fabricating the evidence fall under the purview of corruption ….”.
12.
The third ground of appeal is also not one that informs the Crown or the court what exactly the challenge to the decision of the judge a quo is. In his submissions counsel for the appellant concentrates on the first two issues and does not develop his argument to cover the third issue. In respect of the third issue, he has only this to say:
“[22] The truth is that the accused was called to join the killers, but the prosecution has dismally failed to prove common purpose in this case. The question is (common purpose with who?)”
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13.
There is no doubt, going by the record of proceedings, that other persons were involved in the assault of the deceased. The accused’s wife is said to have sat on the deceased after he had been tied up. The accused’s father and brother also assaulted the deceased. These people and anyone else who assisted in tying up the deceased could have been charged with some offence, for example assault or murder based on common purpose. They were not so charged. The Crown chose to deal with the appellant only and proved the case against him beyond a reasonable doubt, as found by the trial judge.
Crown’s submissions
14.
Crown counsel opened his submissions with a statement indicating or confessing that he did not fully understand or appreciate what the appellant’s concern was in this appeal. He said –
“[1.4] Looking at the above grounds of appeal, in the absence of the appellant’s submissions, it is very difficult or near impossible for the respondent to comprehend what entails issues for determination and factors or legal issues to be addressed. It feels like being on a voyage without a compass. What complicates matters even further is the fact that there is a high likelihood that the first two grounds have never been adjudicated on in our jurisdiction. Nonetheless, the respondent shall make all endeavours to make a meaningful contribution to the case and wish to pray for the Court’s indulgence if it may sound like we are all over the place.”
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15.
Crown counsel identified the issues before the Court as they appear to be from appellant’s point of view, being “whether a reasonable doubt has been created on the part of the accused” and whether the Crown has proved its case beyond a reasonable doubt. Counsel dealt with whether there was any misconduct on the part of the prosecution by, for instance, failing to disclose exculpatory evidence, or putting up an improper argument such as misrepresenting the facts or misinterpreting the law, or improperly using the media by giving too much information to it thereby potentially subjecting the accused person to trial by the media or, finally by introducing false evidence.
16.
Crown counsel also addressed that complaint that the investigation was botched by for example failing to properly preserve the evidence or using unreliable or biased witnesses or failing to investigate all relevant facts or police misconduct such as entails illegal searches, improper arrests or use of excessive force.
17.
Crown counsel submitted that the complaints made by the appellant have no basis in fact and did not take place. There is, to the contrary, ample evidence that the appellant himself was content with the investigations. The reports of the investigating officers were admitted into evidence with the consent of the appellant. The complaints alleged were not raised during the trial, which they would, had there been any veracity to them.
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18.
The Crown made submissions on the questions whether the evidence before the court supported the charge and whether it proved beyond a reasonable doubt that the appellant committed the offence charged. This counsel did by showing how it went about regarding the third ground of appeal.
19.
The Crown led evidence from 5 witnesses. The learned judge was satisfied that those witnesses were “unmoved or unshaken in their testimonies”.
20.
The evidence of the 5 Crown witnesses established that the deceased left his home to the appellant’s premises in order to discuss rumours going around in the community that the deceased was in the habit of stealing goods from appellant’s shop. When he reached the appellant’s shop he was tied up and ill-treated. After apprehending the deceased, the appellant’s wife was heard to call someone to bring petrol. From other evidence the person called to bring petrol was the accused. He arrived carrying a 5-litre plastic container full of petrol. One of the persons who had gathered at appellant’ premises advised appellant not to take the law into his own hands, but appellant did not heed the advice. He poured petrol on the deceased whose hands [and legs it appears] were tied up and set him ablaze. The deceased died from the severe burns he sustained from this attack. This is the conclusion reached by the pathologist who examined the deceased’s remains.
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21.
The Crown, as found by the judge a quo, submitted that there was ample evidence that the appellant was the one who brought the petrol, poured it on the deceased and set him alight. Regarding the sufficiency of evidence, Crown counsel referred to S v Mlambo2 in which the court said that where the Crown produces evidence of such high degree of probability that the ordinary reasonable man, after mature reflection, comes to the conclusion that there exists no reasonable doubt that accused has committed the crime charged, then it has discharged the burden of proof that the law thrusts upon the Crown.
22.
Counsel also referred to R v Senyane3 where Ramodibeli JA (as he then was) said that a judicial officer must undertake a thorough, detailed and critical examination of each component in the body of evidence and then step back and consider the ‘mosaic as a whole’. Crown counsel be-cried or lamented the appellant’s focus on the assertion that the Crown misled the court a quo by charging one person and then presenting evidence that tended to show that the event was an instance of mob justice, and yet not a single member of the mob was arraigned before court on any offence. Crown counsel submitted that the Court had to be alive to the fact that the issues raised by the appellant, particularly the first, two were raised for the first time on appeal.
Judgment of court a quo
2 1957(4) SA 727 at 738
3 ([C of A (CRI) 8 of 1 ) [2007 LSCA 11 (4 April 2007)
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23.
The judge a quo made a very thorough analysis of the evidence of all the witnesses who testified before her and came to the conclusion that it was the appellant who brought 5 litres of petrol, poured the petrol all over deceased’s body and set him on fire. She properly rejected the appellant’s assertion that it could have been appellant’s father, or another person called Phakiso, who ignited the fire that burnt the deceased to death. The learned judge correctly applied the principles of law in determining whether the Crown had proved its case beyond a reasonable doubt as set out in such cases as R v Difford4; Lehloka v S5; Moshephi and Others v R 6 She relied on direct and circumstantial evidence to reach the conclusion that the perpetrator of the offence was none other than the appellant. After convicting the appellant, she found that extenuating circumstance existed. She considered mitigating and aggravating factors placed the before her. She sentenced the appellant to 13 years’ imprisonment, and, in addition, she ordered that the appellant should pay M10000.00 to the deceased’s family in line with Sesotho custom and the principle of restorative justice.
24.
The conviction is, in all respects, correct. There was irrefutable evidence that the appellant committed the offence charged. He may have been assisted by other members of his family and one or more strangers to tie up the deceased.
4 1937 AD 370 at 373
5 (A213/21) ZAWCHC 34 (16 March 2022)
6 LAC (1980-1984) 57 at 59F
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However, the critical act of pouring petrol over the deceased’s body and igniting the flames that burnt the deceased to death were, as proven by the evidence, singularly his own act. The learned judge cannot be faulted in any way regarding the conviction.
Ad Sentence
25.
At the commencement of the hearing of this appeal, we brought to the attention of counsel our concern that upon reading the record of proceedings and the heads of argument, the sentence imposed for the offence committed by the appellant appeared to us to be unacceptably on the low side. The appellant brought petrol to the crime scene when he was advised that the deceased had been apprehended and tied up. He took the law into his own hands and set the deceased on fire rather than report the matter to the police. The deceased had on his own volition left his home to the appellant’s premises to settle differences between them arising allegations that deceased was habitually stealing from appellant’s shop. He suffered an unexpected and cruel death at the hands of the appellant. The brazenness of appellant of killing the deceased when members of his community were watching is astounding to say the least. I consider that a sentence in the region of fifteen to twenty years is appropriate. In this case I take into account that the appellant has paid the sum of M10 000.00 to the deceased’s family as directed by the judge. Nonetheless the sentence must, in my view, reflect society’s abhorrence of such criminal conduct. It
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must fit the offence and set down a precedent in sentencing in such cases.
26.
The Court called on the parties’ legal representatives to file submissions on whether this Court is empowered to increase or reduce a sentence without such sentence having been subject of appeal or cross-appeal. Counsel for the appellant was positive that this Court has such power based on R v Sopeng7 and Phaloane v Rex 8 which clarify the position ,not only that the court can do so but also that it can do so without giving the parties any advance warning. In this case the Court gave notice at the commencement of the hearing and thereafter gave the parties time within which to make written submissions on the issue.
27.
Appellant’s counsel, with reference to Motsa v Rex9, emphasised the principle that sentencing is primarily a matter in the discretion of the trial judge and interference by the appellate court is justified only if there is a clear misdirection, irregularity and striking disparity in the sentence. Counsel also emphasised the point that the appellant has paid M10 000.00 to the deceased’s family as indicative of contrition on his part. He submitted that appellant did not abscond on any single occasion over the fifteen years that it took his case to be finalised. He urged the court to be especially careful in interfering with the sentence where, as in this case, the sentence
7 (CRI/APN/58/83 [1983] LSCA 120
8 [1981] LLR 246 (CA)
9 (37of 2010) [2012] SZSC 6 (31 May 2012)
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was not raised by any of the parties as an issue for consideration in the appeal. He submitted that the sentence “does not meet the threshold for being manifestly lenient” considering also that the appellant has paid the compensation as ordered by the High Court. He pleaded with the Court not to increase the sentence.
28.
Crown counsel confirmed the position that there is no law impeding this Court from enhancing or reducing a sentence if in its opinion the sentence does not meet the three important requirement: that it should fit the crime as well as the accused, and that it must meet society’s expectation. He cited several cases which espouse the principle that sentencing is a matter that lies within the trial court’s discretion10, but this Court has the power in terms of s 9(4) of the Court of Appeal Act to interfere with a sentence passed by a lower court and substitute it with a proper sentence warranted by law. His position was finally that the Court should not only uphold the conviction but must also enhance the sentence “to serve the triad consisting of the offender, the crime and the interests of society”.
29.
From the submissions of both the Crown and the defence, the position is clear that this Court has the power to reduce or enhance a sentence if in its opinion the sentence is manifestly severe or manifestly lenient. A sentence of 13 years’ imprisonment for the dastardly offence committed by the appellant in the full glare of the public is, in my view, manifestly
10 R v Thejane (C of A (CRI) 4 of 8 [2008] LSCA 31 (17 October 2017; Ramaema v R 2000-2004 LAC 710 at 713 and Molikeng Ranthithi & Ors v Rex C of A (CRI) No 12/07
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lenient. It trivialises the very serious offence of murder committed by the appellant and needlessly perpetrated in circumstances where the deceased had approached the appellant for a possible amicable resolution of their differences. Deterrence must also play a part in sentences imposed for crimes of this kind. I have considered the fact that appellant has paid compensation to the deceased’s family. Nonetheless I consider that a sentence of 18 years’ imprisonment with a portion suspended on condition of good behaviour is a condign punishment.
30.
In the result, the order of this Court –
(1)
The appeal against conviction is dismissed.
(2)
The sentence imposed by the trial judge is altered only to the extent that the sentence of 13 years’ imprisonment imposed by the learned Judge is set aside and replaced by the following-
“The accused is sentenced to 18 years imprisonment, of which 3 years imprisonment is suspended for 5 years on condition that the accused does not commit any offence occasioning grievous bodily harm to the person of another.”
________________________________
MH CHINHENGO
ACTING JUSTICE OF APPEAL
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I agree
________________________________
PT DAMASEB
ACTING JUSTICE OF APPEAL
I agree
_________________________
R MATHABA
ACTING JUSTICE OF APPEAL
FOR APPELLANT: Adv NK Lesuthu
FOR RESPONDENT: Adv. M Letsie