HIGH COURT OF LESOTHO
by the Honourable Mrs Acting Justice A.M. Hlajoane on 25th February,
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.
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.
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);
person who contravenes subsection (3) commits and offence and is
liable on conviction -
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."
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.
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
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.
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.
appeal is therefore upheld and the sentence is altered to read, one
thousand maloti (M1000.00) or one (1) year imprisonment.
Appellant: Mr Makotoko
Respondent: Ms Mofilikoane
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