CRI/A/39/80
IN THE HIGH COURT OF LESOTHO In the Appeal of :
MAKHETHA MPHUTLANE Appellant
v REX Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 9th day of September
1980
This convicted accused sought leave to appeal against a sentence of one year imprisonment passed on him (by a magistrate sitting at Maseru) on a charge of theft of a motor vehicle that was parked outside the Hilton Hotel. He did not file his notice of appeal until 9th May 1980 - well out of time - but I was prepared to let the accused argue the merits of his case as if it were on appeal so that if leave is granted his arguments would stand as for the appeal.
I dismissed his application on the 4th September 1980. My reasons follow :-
The accused submitted:
That he had no previous convictions.
That he was the only adult male in his family able to earn a living; his father is old and he has five (5) young sisters to support.
That he was just over 18 when the offence was committed.
That he had married just before the offence was committed and his wife is short of money and in bad health.
That he pleaded guilty and did not waste the Court's time.
That he was simply the "tool" of other older men who encouraged him to steal.
That he was prepared to compensate the owner (in due course) for the damage caused to the
vehicle.
/The accused
-2-
The accused suggested that I impose a fine instead. He admitted, however, that he has no money and payment will have to wait. Incidentally he has served almost 6 months of his sentence and should be released, assuming remission for good conduct,in about 3 months.
I have no doubt that the magistrate was aware of 1, 5, 6 and 7 (for this is clear from the record) and possibly also of the accused's age which is apparent on the face of the charge sheet.
The magistrate wrote:
"The appeal is against a sentence only. I need not quote numerous cases which have come before our Courts, which have not only demonstrated that car thefts were not only on the increase but were rampant in this country. It will suffice to refer to a recent case of Rex v. Tsitso Mohapi CRI/A/83/79 - unreported - where Rooney J not only set aside (on appeal) the option of a fine which accused had been given, but also increased the sentence of R200 or 10 months' imprisonment to 12 months' imprisonment without the option of a fine.
This case illustrate that superior courts take a serious view of car thefts, and their attitude can be inferred from the above case as regards the appropriate sentence. I also subscribe to this view hence the sentence I imposed".
The thing that caused me a little anxiety is the relative youth of the accused and his being a first offender. On maturer reflection however I think Crown Counsel, citing a number of authorities both in our Lesotho Courts and in South Africa put the law on sentencing in the correct perspective viz:-
That sentence is pre-eminently a matter for the trial Court.
That an appellate tribunal should not lightly interfere with the discretion of the trial Court if judicially exercised.
That the youth of an offender is only one of many factors that should be taken into account in assessing sentence.
That a first offender should not expect a guarantee that a custodial sentence will not be imposed.
Taking all factors into consideration the sentence of one year imprisonment on this youth of 18½ has not caused me such a sense of shock that Justifies interference.
/As I
-3-
As I intimated earlier in my Judgment leave to appeal out of time was refused.
CHIEF JUSTICE 9th September, 1980
For Appellant: In Person For Respondent: Mr. Mdhluli
