CRI/A/29/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TEBOHO
LESESA APPELLANT

and

REX
RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs Acting Justice A.M. Hlajoane on 25th February,
2002

The
matter came before me on Appeal from a decision of the Magistrate's
Court Mokhotlong. The appeal is on sentence only. The Appellant was
charged with the offence of contravening Section 3(3) read with
Subsection 4(a) of Act 4 of 1999. It being alleged that he was found
in possession of a firearm without holding a firearm certificate in
force at the time.

After the
charge was put to the Accused, he pleaded guilty to the charge and
the Public Prosecutor outlined the facts which did disclose the
offence under which the Accused was charged.

The
section has prescribed the penalty to be imposed for first offender
and also for subsequent offences. The Appellant being a first
offender was sentenced in terms of Subsection (4)(a);

Subsection
(4)(a)

"Any
person who contravenes subsection (3) commits and offence and is
liable on conviction -

1. in
   the case of a first offence to a fine of not less than M5,000.00 or
   to imprisonment for not less than 2 years."

   
   

The
Appellant was accordingly sentenced to five thousand maloti
(M5000.00) or two years imprisonment, and it is against this judgment
that the appeal was noted claiming that sentence was too harsh.

During
argument both counsel were agreed that, though the sentence imposed
is prescribed by law, that still hasn't taken away the discretion by
the Court, Section 302 of Criminal Procedure and Evidence Act 7 of
1981, which shows that the amount and nature of punishment is at
Court's discretion.

2

Considering
the facts of the case, if the penalty prescribed is followed to the
letter and without considering the personal circumstances of the
Accused some grave injustice might result. In this case personal
circumstances of the Appellant have not been considered because the
penalty has been prescribed by statute.

The
Appellant had pleaded guilty to the charge and is also a first
offender. In Motenatena vs Rex 1995-96 LLR &LB 267, the Court of
Appeal held that the Appellant's age and the fact that he was a first
offender were material and relevant factors that the trial Court
should have considered in passing sentence.

The
appeal is therefore upheld and the sentence is altered to read, one
thousand maloti (M1000.00) or one (1) year imprisonment.

1. M.
   HLAJOANE

   
   

ACTING JUDGE

For
Appellant: Mr Makotoko

For
Respondent: Ms Mofilikoane

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