CRI/T/13/94
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
v
JABULANE DLHAMINI 1ST ACCUSED
TSELISO DLHAMINI 2ND ACCUSED
MAJOOA MOFOKENG 3RD ACCUSED
SENTENCE EXTEMPORE
Delivered by the Honourable Mr. Justice T. MONAPATHI on the 22ND day of March 1999
I have already found that there are extenuating circumstances and I am now to deal with sentence which is not an easy thing under normal circumstances.
I have been told that the accused have no previous convictions. They have been in custody for almost six years. That A1 is a married man with two children and others are unmarried. I have not been told what my
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attitude should be about the deceased Matsie who would not come back having left her children behind. I do not know who is going to support Matsie's children. That gentleman (the visitor) who died could be a married man who has left children. He will also not come back. A2 and A3 are unmarried.
I have also been told to consider that the gentlemen had been cooperative and have not given law enforcers any problems. I believe that it is true that A2 and A3 are sickly people. A2 has tuberculosis. A3 is asthmatic. I know for myself that the gentlemen had always complained that they need medical attention and they told me a number of times that they are worried that there were no people from their families visiting them like other prisoners. This has surprised me and I must confess that I felt unhappy about their situation because to me it seems as if their relatives were already given them some kind of punishment when they needed to be consoled where they are.
I have noted and there is no doubt that extenuating circumstances had been found in favour of the gentlemen. To start with punishment is in the discretion of the Court and we know that in this country a judge or presiding officer is not guided by any grid or some kind of guidelines given for a crime and a punishment or something like a table. So that, one is always guided by the individual circumstances of each case. But then one should look at the crime itself and its seriousness. He should also look at the personal circumstances of an accused person such as I have just addressed.
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And finally it should be the expectations of the community that is the community expect that people who do crimes must be punished. That the crime must fit the punishment and that punishment can only be as lenient or as harsh depending on the seriousness of the crime committed. But the Courts are always warned that they must not appear to be revengeful or full of revenge against people who have been found guilty. At the same time the Courts should not give sentences that are absurd and that make a mockery of justice. That those of the deceased people or their relations or the victims will even feel like taking the law into their own hands. In other words the Courts must give punishments that are realistic.
I have said that one of the things to consider is how the community will view a given sentence. I have also the person of the accused as one of the things to consider. Other things are things that the Court can be made to consider looking at those things themselves such as the fact that if a person has not been an offender the Court must infer that he will most probably be rehabilitated. He is likely to be rehabilitated because he is the kind of person who does not go against the law and this fact that he has committed this offence that has brought him before this Court could have been caused by pressures or certain reasons that caused him to commit the crime. It can be considered that it was "accidental" because he is normally a law abiding citizen.
And then we have to look at the objects of the punishment. This is within the context of the fundamental factor or tenet that punishment is primarily intended for people to respect the law and maintain themselves peacefully in their own communities. Within this context
we can then
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speak of certain objectives or certain purposes to which the Courts may impose punishments.
The first one is that we want to deter people from committing offences or re-offending. They must be frightened not to re-offending so that they may not re-offend. We have to make out sentences that will frighten them. Secondly we want to send a message to people who commit crimes. If they get to know that serious crimes will be harshly punished that in itself is a lesson. The third aspect is that sometimes we come to a decision that society must be protected. We protect the society by removing the offender from the community that is one of the reasons why we have a punishment of sending people to prison. Although sending people to prison has got a primary purpose that is now the most sought after purpose. That people are being sent to prison in order to rehabilitate them.
The fourth aspect is this one of restitution and the society is being compensated and the victim is being compensated because a person who has committed a crime acknowledges that he has done a bad thing. And it is said because people have injured others need or ought to compensate their victims. Or they must bring back something to the community.
We have already spoken about imprisonment and we would agree that there is some debate about the effect of imprisonment. Some people will say that "oh! you send this man to prison he will come back much worse than he was before he got in there". Indeed he meets people who are career criminals and people who have got vast experience of criminal
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behaviour. Or he meets people who are in a position effectively to influence this person to be a different person from what he was. And then when he gets out of prison he is a hardened criminal.
There is another opinion which says when you send this man to prison you are actually labelling him a criminal when otherwise he would not have been labelled as such. There remains however a strong feeling which is supported by public policy and the policy of our Courts that imprisonment is still a punishment that must be maintained. That is so because it has certain eminent benefits that seem to encompass almost everyone of the objectives that we have spoken about.
Having said that I want to conclude immediately that these people have committed very serious crimes that have brought unnecessary waste of life and property. I have asked for a debate from Counsel about that question of aggravation. That seem to have been a long period over which these gentlemen or some of them harboured intentions to do criminal conduct and gave warning and then seemed to be prepared. Then there was this tragedy. I have said despite that I note that the kind of community from which they come I now even announce that I do not think that they deserve a sentence of death by hanging.
I have also considered their personal circumstances. I feel that they deserve long periods of imprisonment and then that will have the necessary effect. I have said in my judgment they have been involved in these three deaths which were unnecessary. That is the death of Sentso, of Matsie and Thuso.
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For each one of these deaths I sentence everyone of you to twelve (12) years imprisonment. For this assault on Mathethuoe I sentence you to eight (8) years imprisonment. For the crimes of arson on the properties of Mzaefane and Matsie I sentence you to four (4) years each and these sentences will be served concurrently. Meaning that the sentences will not be one after the other. This to my mind brings the necessary message that lawlessness in this country should not be tolerated.
T. MONAPATHI
JUDGE