HIGH COURT OF LESOTHO
by the Honourable Mrs Acting Justice A.M. Hlajoane on 3rd Day of
Appellant had been tried at the Magistrate's Court Leribe, charged
with three counts of Housebreaking with intent to steal and theft. He
pleaded guilty to the first two counts and not guilty to the third
Public Prosecutor accepted the pleas to the first two counts
outlined the facts. The accused admitted the facts and was found
guilty as charged on both counts. The accused happened to be a first
offender and was thus given chance to put his plea in mitigation of
sentence. A sentence of two years imprisonment for each count was
given and both sentences were to run consecutively. It is against
that sentence that the appeal is lodged.
ground for appeal has been that the Magistrate has failed to give
reasons for the stiff sentence she imposed, thus resulting in a grave
irregularity. Counsel for the Respondent concedes that in fact an
irregularity occurred as Magistrate gave no reasons for her sentence.
question now that has to be asked is whether such irregularity was so
grave as to warrant the acquittal of the appellant? To answer this
question one has to look at the facts of the case and other factors
surrounding the sentences that have been imposed.
Appellant was charged with three counts of housebreaking
intent to steal and theft. He pleaded guilty to the first two and was
convicted and sentenced.
one the following property was stolen after the accused had broken
the door and gained entry;
Litres of Relaxer
that property only the television and watch were recovered. No
explanation was given about the remaining items not recovered.
two , the door and the back window were opened to gain entry and the
following property stolen;
pairs of shoes
pair of trousers
one pair of shoes was recovered as the Appellant was wearing them
when he was arrested and the complainant identified them. Also the
Tempest Radio was found. No explanation was ever given about the
remaining property which has not been recovered. The offences were
committed to two different complainants at different dates and
places. Not all the property has been recovered and Appellant
volunteered no information according to the record, as to what in
fact happened with the other property.
Appellant when so sentenced to two years on each count, and sentences
being made to run consecutively, was aged but 20 years. There are
numerous decisions of this Court which show that, in passing sentence
on a relatively youthful accused, there are factors which have to be
taken into consideration;
sentence is pre-eminently a matter for the trial Court.
an appellate Court should not lightly interfere with the discretion
of the trial Court if judicially exercised.
the youth of an offender is only one of many factors that should be
taken into account in assessing sentence.
a first offender should not expect a guarantee that a custodial
sentence will not be imposed. See Makhetha Mphutlane vs Rex 1980 (2)
to be the practice obtaining at the Magistrate's Courts that where an
accused has pleaded guilty to the charge and accepted an outline of
facts in passing sentence it was not mandatory to give reasons for
sentence. Reasons would only be given where such accused person has
noted an appeal. Even at present, the practice still stands. But in
our present appeal the Magistrate gave no reasons for her sentence
even after the appeal has been noted.
of Matia and Another vs Rex 1979 (1) LLR 139, is for the proposition
that, there is no rule of law that a first offender is entitled as of
right to special privileges. Being his first offence is merely one
factor amongst others that the Court ought to take into account. That
his individual interest must be weighed against for example the
nature of the offence, protection of the public and the prevalence of
the crime of
has been convicted.
already shown that I subscribe to the principle that the question of
sentence is pre-eminently a matter within the.discretion of the trial
Court, but it would be hard to believe that such discretion has been
judicially exercised in the absence of any reasons for the sentence
given. Regard being had to given relevant considerations, the Court
would be in a position to say yes, the discretion has been judicially
exercised, and this must ex facie appear on the record. S. vs
Anderson 1963 (3) S.A. 494
Appellant at the trial stage in his plea in mitigation of sentence
showed that, he was a student at Maputsoe and doing Form C. That both
his parents were still alive but unemployed. He is the eldest and has
three other siblings after him. The one coming after him was the only
one attending school, whilst the other two born 1987 and 1997
respectively have never been to school. His grand mother is the one
paying for his fees. Appellant was 26 years old last year. He had
guilty thus saving the Court's time.
Magistrate never indicated on the record whether she considered the
plea in mitigation by the accused. The Court of Appeal also showed
its displeasure in the case where the trial Judge failed to take into
account some of the relevant considerations in passing sentence. See
Motenatena vs Rex 1995-96 LLR and LB 267. The trial Judge in passing
sentence had only remarked thus "drinking having been found to
contribute extenuating circumstances, the accused is sentenced to 16
been no indication on record that the trial Judge considered some two
relevant considerations of accused in exercising his discretion, that
of being a first offender and also his tender age. The sentence was
altered by suspending six years conditionally.
Crown, being the Respondent conceded that it was irregular for the
Magistrate to have disregarded the plea in mitigation in her
but shows that no miscarriage of justice resulted therefrom. On the
other hand the Respondent submits that the Magistrate took all the
circumstances of the case into consideration, I don't know where the
Respondent gets the idea that there was such a consideration, yet the
record is silent. He is making a naked assumption.
absence of an indication from the record that the trial Magistrate
considered the mitigation by the accused, I am not loathe to say that
there has been a miscarriage of justice. It was the fundamental
entitlement of the appellant to have known why such sentence was
given, and why such sentences were made to run consecutively.
result, the sentences in count 1 and 2 are altered to read;
imprisonment on each count and the sentences to run concurrently.
been one other important aspect of this case. The charges against the
appellant were three and after pleading guilty to the first two and
not guilty to the third, no separation of trials was ordered
pronouncement on that count. The Appellant never raised that on
appeal except by just making a remark in passing through his counsel
without persuing it any further.
mero motu deal with that aspect and remit the case on that count
alone to the trial Court to make a pronouncement on it.
Appellant: Mr Nathane
Respondent: Mr Molokoane
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