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

v
REX 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 suspended
for 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.