HIGH COURT OF LESOTHO
PALI 1st Appellant
PPPULE 2nd Appellant1
TOOTSE 3rd Appellant
Appellants : Mr. Molefi
Respondent : Mr. Mokuku
by the Honourable Mr. Justice T. Monapathi on the 2nd day of December
give my reasons for my ruling of the 26th November 2002.
Appellants, (Accused) were found guilty by the learned magistrate of
Leribe for unlawful possession of dagga in July 2002. They were
convicted on their own pleas.
were charged with having contravened section 3(c) of Dangerous
Medicines Act 21/1973 having dealt with 735 kilograms of dagga
permit. This offence attracts a maximum sentence of three years and a
fine not exiting one Thousand Maluti.
Accused were sentenced in the following manner. Accused No.l to three
(3) years imprisonment, Accused No.2 to two (2) years and Accused
No.3 to three (3) years (imprisonment). All without an option of a
mitigation the 1st Accused prayed the Court to be lenient. He was
trying to make ends meet and to pay for the coffin of his death
sister. Both his parents were late. He was not employed and was
sincerely sorry for what he had done. He added that the dagga was his
and not that of his assistants, the Co-Accused. He was married with
two children. His wife was unemployed.
prayed for leniency because he was unemployed and he struggled to
support his children and parents.
asked that it be noted that he was sincerely remorseful. He was
trying to make ends meet. He was "unaware" that he was
committing a criminal offence.
learned magistrate then sentenced the three Accused as aforesaid
giving any reasons therefor. Not speaking for the magistrate's
profession this is becoming a rarity. If the magistrate had not given
his reason at the time of sentence he could still have indulgently
done that before the appeal papers were remitted to the High Court.
the learned magistrate could have still been blamed for not having
informed the Accused what the reasons were for these sentences, at
the time of delivering the sentences there were several advantages,
some of which are demonstrable, if reasons for sentence were given.
the learned magistrate would have removed the perception that he
acted arbitrarily and his decision was not supported by reasons.
he could have been able to justify his conclusion that the Appellants
ought not to have been sentenced differently and unequally. For
example the Accused could have participated differently in the
offence. So would the moral guilt and involvement be viewed
differently. If it was so the learned magistrate should have pointed
this out in his reasons for sentence. His impartiality and fairness
would not be questioned as suggesting discrimination.
he could have explained why there was no need to suspend the
or impose a sentence or option of a fine. It could be that this
offence is rampant in the learned magistrate's area of jurisdiction
(by way of judicial notice) or some other aggravating factors. That
he should have spelt out. I demurred when Mr. Mokuku, Crown Counsel,
ventured to suggest that there were special circumstances. I thought
that a major principle was involved namely that the magistrate must
himself spell out what the circumstances were which influenced him.
it may perhaps be that in the mind of the learned magistrate the
offence was so serious judging by quantity of the substance or the
innate seriousness of the use of the drug that even first offenders
"with no previous convictions" ought to be sentenced to
prison to protect the society and serve as clear deterrence. But this
the learned magistrate did not say.
it may be that the learned magistrate noted but did not consider that
the youth of some of the Accused, the personal circumstances and the
remorse shown by some of the Accused. That this aspects did not or
ought not to influence his sentence. But his he did not mention.
it could be that inasmuch as the learned magistrate was aware that
Accused were first offenders they could not in the circumstances
sentence or option of a fine solely because they are first offenders.
Mojela v Rex 1977 LLR 321 at 324. But he did not advise that this
crossed his mind. May be it did not.
outlined above I concluded therefore on the above grounds that I had
to intervene as an appellate court. In varying the above sentences as
I will I noted that decisions of this Court have observed that the
people who are arrested are almost always fronts for big moneyed
sponsors who will be in the background to promote and finance the
dealings with the bad drug. That would be a ground for not imposing
an option of a fine in proper cases. If this was not a proper case
for giving such an option the learned magistrate should have
Court noted that it is trite law that an appellate court will not
readily interfere with punishment imposed by a lower Court in the
exercise of its discretion because the responsibility of determining
lies squarely on the shoulders of a trial judge or magistrate as the
case may be. I was referred to S v Anderson 1964(3) SA 694 at 695.
That decision ought to say also that once no reasons have been
furnished for a sentence it cannot be said that the Court a quo
exercised its discretion judicially.
reasons are given by a trial Court it will have acted unreasonably
and therefore improperly. It cannot be said that that Court, in the
circumstances, the Court a quo carefully considered after relevant
circumstances as to the nature of the offence and the personal at
circumstances of the Accused. See S v Anderson (supra), R v S 1958(3)
SA 102 at 104, S v Redy 1975(3) SA 757 (AD). There are other reasons
why an Appellate Court will intervene.
appellate Court will also intervene with the trial Court's punishment
whether a striking between the sentences which an appeal court would
have imposed had it sat as a trial Court. See Masehloho Kao v Rex
1993-94 LLR LB 486, 485, S v Whitebread and Another 1971(4) SA 613
(AD) at 622. In the latter case the Court had to say:
"The question which it is it is the duty of this Court to
consider is whether having regard to all the circumstances, there
exists a "striking disparity" between the sentences which
this Court would in the circumstances have imposed are "strictly"
imposition of a maximum fine can be startlingly inappropriate where
the reasons for it are not spelt out. It is the nature of the Court
viewing the offences with outrange or the offence being serious in
the extreme when a maximum sentence is imposed. The Court will not
without any explanation therefore impose such a sentence.
an even clearer indication as to the proper attitude of the Court is
given in Masehloho Kao v Rex (supra) where Mahomed JP when referring
to circumstances where in the appellate court can interfered with
sentence imposed by the lower court, held as follows:
"There is a striking disparity between the sentence which was
imposed by the trial Court and the sentence which this Court would
have imposed if it has set as a Court of first instance. This Court
is therefore entitled to interfere with the sentence of the Court a
quo and to impose a sentence that would give expression both to the
objected seriousness of the offence as well as the special personal
circumstances of the appellant and the reasons which influenced her
conduct." (My emphasis)
therefore the learned magistrate gave no expression that he
considered other circumstances a clear case is therefore made for the
Court's intervention. See also Semano Monyane v Rex CRI/A/20/2000 per
Guni J 28 December 2000.
things such as gross severity of sentence, unreasonableness including
misdirection are universally regarded as giving the Court on appeal
leave to intervene (Moroke Letsitsa and Another v Rex 1980 (2) LLR
804) the absence of reasons for sentence can even be more serious.
I did not
therefore see why the Court a quo leaned towards a harsher sentence
taking into account the personal circumstances of all the Accused.
considered the prejudice of sending back the matter in order for the
learned magistrate to give his reasons. There would be unnecessary
delay. This included, as I was informed by Counsel, that the Accused
had already spent about six (6) months in prison.
I varied the sentence by ordering as follows:
(3) years imprisonment or Ml,000.00
(2) years imprisonment or Ml,000.00
(2) years imprisonment or Ml,000.00.
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