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