CRI/A/13/86
IN THE HIGH COURT OF
LESOTHO

In the Appeal of

MATHAOTE POTO Appellant

v REX

JUDGMENT

Delivered
by the Hon. Mr Justice J L Kheola on the 21st day of April, 1986

The appellant was charged before the subordinate court
for the district of Quthing with the offence of contravening section
3(a) of
the Dangerous Medicine Act No.23 of 1973, in that on the 31st
August, 1985 and at or near lele Border Post in the district of
Quthing
the appellant unlawfully and intentionally dealt in dagga
weighing 5 100 kg without a permit. She pleaded guilty to the charge
and
was sentenced to six (6) months' imprisonment without the option
of a fine She is appealing to this court against sentence.

The facts of this case are that on the 31st August,
1985, the appellant was arrested at Tele River when she was about to
cross into
the Republic of South Africa. She was carrying a brown
shopping Dag When asked what the bag contained the appellant told the
police
that it contained dagga which she intended to sell in the
Republic of South Africa The police found out that she had no permit
authorizing
her to deal in dagga

/I confirm

-2-

I confirm the conviction.

The sentence of six (6) months' imprisonment without the
option of a fine has given me some concern. The quantity of dagga
found in
the possession of the appellant was not large enough to
justify a sentence of imprisonment without the option of a fine. In
addition
to that the appellant is a first offender A sentence of
imprisonment without the option of a fine on a first offender should
not
be imposed unless the amount of dagga involved is so large that
it leaves no doubt that the accused person is a big trader in
smuggling
dagga

It has also been pointed out by this court that
magistrates should always bear in mind the uniformity of sentences.
In all cases where
people are convicted of dealing in similar
quantities of dagga the sentences imposed by the courts must show
some degree of uniformity
unless the circumstances of a particular
case require that it should be treated differently, such
circumstances are the age of the
accuded, whether or not he or she
has any relevant previous convictions. In all the cases in which this
court has discouraged magistrates
to give the option of a fine, the
quantity of dagga was usually large and over one hundred kilograms or
several bags of dagga (see
Rex v Sehloho and another,
1981(2) L L.R. 292, R. v. Hlapho, Review Order No 7 of 1979
(unreportedj, R. v James Mafuso, Review Order No 43 of 1979
(unreportea)

The appellate court is always very reluctant to set
aside the sentence of a lower court because sentence is a matter
entirely in the
discretion of the trial court. However such a
discretion must be exercised judicially Where the sentence imposed
by the lower court

/gives a

-3-

gives a sense of shock or is so severe that a reasonable
court would not have imposed it, the appellate court may set it aside
I
am of the opinion that the sentence is too severe when one takes
into account the amount of dagga found in the possession of the
appellant.

The sentence imposed by the court below is quashed I
substitute a sentence of R70.00 or two (2) months' imprisonment

J.L KHEOLA JUDGE

6th May, 1986. For Appellant - Mr Ramodibedi

For
Respondent - Mr. Mokhobo