CRI/A/36-38/80
IN THE HIGH COURT OF LESOTHO. In the Appeal of :
'MaSEKONYELA SEKONYELA 1st Appellant'MAREFILOE LESIAMO) 2nd Appellant
NTHO CHOBOKOANE 3rd Appellant
vREX Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the 13th day of February, 1981.
The three appellants were charged with the Crime of Theft, it being alleged that each or one or all of them and at Qacha's Nek Post Office, wrongfully, unlawfully and intentionally steal a sum of M2040 the property of Lesotho Government and in the lawful possession of one Kolisang Ramakhula. They all pleaded not guilty. The first appellant ('Masekonyela Sekonyela) was in addition charged with the crime of theft, it being alleged that at Qacha's Nek Post Office she wrongfully, unlawfully and intentionally steal the post office keys, two keys to the strongroom and the doors of the said Post Office. To this charge she also pleaded not guilty.
The first appellant was found guilty "as charged on both counts" and was sentenced to "2 years' imprisonment both counts taken as one for the purposes of sentence." Appellants two and three were found guilty of receiving stolen property knowing it to have been stolen. They were each sentenced to undergo imprisonment for a period of
18 months.
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The first appellant appeals to this court only against her sentence whereas appellants two and three appeal against both such conviction and sentence.
In this judgment I shall simply refer to the first, second and third appellants as accused 1, 2 and 3 respectively.
There is no dispute that a total sum of M2040 mentioned in Count 1 went missing from Qacha's Nek Post Office in August, 1979. The keys mentioned in Count 11 also went missing. A report was made to the police. Investigations followed the upshot of which was that the three accused were arrested. A sum of M920 was produced by accused 3 from a spot, on a hill, where he had burried it.
Accused 1 was well-advised to abandon an appeal against her conviction. In my view there was overwhelming evidence against her on both Counts. In her favour I shall take her word for it that the whole episode began as an exercise to "cause embarassement" to the post-master. However, in the course of this prank temptation stepped in and an intention to steal was formed. She pointed out various types of keys which went missing. For an example, the key she pointed out near the hospital could only have been placed there by herself. The terrain was covered with grass but she was able to pinpoint the exact spot where the key was found.
In his written reply to the grounds of appeal the learned magistrate does not even make mention of the fact that the whole episode began as a prank. In this particular case the carelessness of the post-master is exposed. How such a responsible officer could leave the most sensetive areas of the post-office unlocked is carelessness to the
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extreme. It is beyond me that he only discovered that the keys went missing when he was on his way home for lunch. The temption was therefore extreme. In the decided case referred to by the learned magistrate in his judgment, there the Court was concerned with a case of careful planning, in which registered letters were systematically opened. In the present case there was no premeditation. The absence of premeditation in the commission of an offence is a factor to be taken into consideration when dealing with the question of sentence on a convicted person. This, the learned magistrate did not do as clearly demonstrated by his attitude towards this accused. Apparently it had been said, in mitigation of sentence, that accused will make good the loss
suffered. The learned magistrate replies " her
offering to make good the loss suffered by the post office does not in my view wash away seriousness of the crime she has committed." He then says that she must be punished without mercy. What I believe the appellant meant was really to express her remorse and translate that into concrete terms, We know that in terms of the law a civil judgment, in circumstances such as in this present case, is automatic. What we are concerned with here is the sentence about to be passed. What kind of an individual are we dealing with? Is it an individual still capable of being reformed and not to be broken? The personal circumstances of the accused have been totally ignored and much emphasise is made of meting out merciless punishment against the accused. This is not a correct approach. A sense of balance should prevail. It is characteristic of Courts of law to be merciful in their dealings with individuals who appear before them despite the horrible crimes they have been found to have committed,
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It is not correct that where an accused is charged and found guilty on various counts, that a global sentence should be imposed. Each count is a separate crime for which an appropriate sentence should be passed. The remarks of my brother Rooney, J. in the case of Rex v Lebakae Mohapi & Others, Review order No.1 of 1981 (unreported) when he said:
".... a reading of section 295 (of Criminal Procedure and Evidence Proclamation 59 of 1938) suggests that the proper course when a person is convicted at one trial of two or more different offences is for the Court to sentence him to such several punishments of such offences as it is competent to impose."
are quite apposite in the present case and with respect I entirely agree.
Thereafter, it will be entirely within the judicial officer's discretion whether such sentences shall ran concurrently or consecutively. This has not been done in this particular case. All the record shows is a global sentence of two years "both counts taken as one for the purposes of sentence." It is not stated what the sentence was on each count. It is the sentences that are to run together and not the counts surely*7 The sentence imposed by the learned magistrate is therefore wrong; and taken together with the factors I have mentioned earlier this Court finds itself at large as to the sentence imposed on this accused.
The correct approach in the circumstances of this case is to remit the matter back to the trial court. However, there are various telling reasons why that course will not be followed. The accused made their first appearance in Court on the 14th September, 1979 and, for various reasons, the trial was not completed until 6th June 1980. Then after conviction an appeal was noted and again, for various
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reasons, the appeal is on]y being finally disposed of to-day. It is a long time to await the outcome of a case. When a Criminal Trial drags on for such an inordinate length of time that is bound to affect the sentence finally to be imposed on an accused person, for waiting for such a long time, in itself, a form of punishment. This factor must be taken Into consideration in assessing sentence. In the case of Sankatana Masupha v Regina,1963-66 H.C.T.L.R. 102 at p. 104 Watkin Williams, C.J. put the same concept neatly thus:
"....More important still, persons accused of crime are not always guilty of it and deprivation of liberty pending and during trial is a serious interference with the liberty of the subject which unfortunately cannot be avoided. It must, however, be kept down to a minimum. Furthermore, whether a person is guilty or not guilty, the period awaiting trial and its outcome is often one of anxiety and strain and is punishment in itself additional to that which may be passed by way of sentence. This, of course, can and should be taken into account when the accused is sentenced ......but if delays are great the merited punishment may be less than that which has already been suffered."
With respect, I entirely agree.
The learned magistrate who presided at the trial has since acquired a new status and in his new position does not deal with Criminal trials anymore. His Court now deals almost exclusively with Civil appeal from Local Courts. Moreover, it is a long time since he dealt with the facts of this particular case. It will thus be a strain to require him to pass sentence afresh especially, as I have pointed out already, with his approach towards the passing of sentence on the appellants in this particular case.
Taking into consideration all the factors I have indicated above and also that there is an automatic civil judgment where government has suffered loss, as it has in this case, I would pass a sentence of enough seriousness in the circumstances of this case bearing in mind particularly
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the time it has taken to reach a finality, which lapse of time has had a neutralising effect on any salutary sentence which might have been passed. On Count one I would impose a sentence of M200 or 12 months' imprisonment half the said sentence be suspendedfor a period of 2 years on condition that during the period of the said suspension accused is not convicted of any crime of which theft is an element. On Count two I would impose a sentence of six months' imprisonment the whole of which is suspended for a period of 2 years on condition that during the said period of suspension accused is not convicted of a crime of which theft is an element.
The sentence imposed by the learned magistrate is, accordingly, set aside and the sentences as recommended above substituted.
The evidence against accused No.2 is most unsatisfactory. Firstly, as to an amount of M40 found in her possession. She is alleged to have confessed to two policemen that she received it from accused No. 1 . If this evidence was to be admissible the correct procedure would have been for that evidence to have been repeated before a judicial officer. Surely it is now well-known that a confession made before a policeman is not admissible. Secondly, she is alleged to have confessed before a certain Mr. Phoofolo, a senior staff member of the post-office, from Maseru. Apparently Mr. Phoofolo was seated in a room which he says it is "one portion of the charge office." To explain how this accused got to him, he says that the door to that room was left opened. Then accused No.2 got into his office, carrying a baby and gave him a smile. The time when this accused was having a chat with him "could be midnight or towards dawn." It is not explained why this accused was up and about at that
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time of the night; where was she going to or from when she passed an opened door and saw this gentleman? That is not explained. It is moreover, not explained why Mr. Phoofelo was allowed excess to persons who were under police custody. Thirdly, there were admissions made by accused No.1 implicating accused No.2 in the latter's absence. Then there were confrontations between the accused as to what the one said in the absence of the other. It is not permissible that having taken a statement from one man then you confront another man with it and attempt to turn it into evidence. This is precisely what happened here and on such evidence accused No.2 was convicted. The evidence against accused No.2 is suspect and in my view a reasonable Court ought not to have based a conviction against accused No.2 upon it. A reasonable Court ought to have found that the Crown had not only failed to prove its case against accused No.2 but that her explanation could reasonably, in the circumstances, be true and have, therefore acquitted her.
In my view, the appeal by accused No.2 ought to succeed and it is accordingly so ordered.
Accused No.3, in my view, was correctly found guilty of the lesser offence of receiving stolen property knowing it to have been stolen. He was called by accused No.1 and asked to bury some herbs for her. He was not to let accused No.2 know about them as this would cause friction between accused No.1 and accused No.2. However when he is asked about the money and instead of saying he knew nothing about the money but that he was given herbs, he actually said he would point out where the money was and he did. It was a spot on "top of St. Joseph R.C. Mission." Accused No.3 dug the ground ana took out a parcel which contained M930. In my view,
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accused No.3 knew full well that what he burned was money.
What I have said in respect of the sentence in respect of accused No.1 applies equally to accused No.3. He is, in addition, a comparatively youngman. It is true to say that the crime of receiving stolen property knowing it to be stolen is serious because without "receivers" the thiefs would hesitate because they would find difficulty in disposing of their loot. But in the circumstances of this case, particularly the duration it has taken to reach finality, this court finds itself at large as to sentence. I would impose a sentence of 9 months' imprisonment the whole of which be suspended for a period of 3 years on condition that during the said period of suspension accused is not found guilty of a crime of which theft is an element. It is accordingly so ordered.
Since the appellants have wholly or partially been successful in their appeals it is hereby ordered that they be refunded their appeal deposits.
JUDGE.
For 1st Appellant : Mr. K. Sello
For 2nd Appellant )
For 3rd Appellant ): Mr. Jobadwana.