CRI/S/18/87 IN THE HIGH COURT OF LESOTHO
In the matter of:
PULE BOY TSOAELI
Delivered by the Honourable The Chief Justice Mr.
Justice B.P. Cullinan on the 11th day of June, 1987
The accused persons were convicted by the Subordinate
Court for the Maseru district on three counts of hosebreaking with
steal and theft. They both pleaded guilty and agreed with a
statement of facts. Both of them had previous convictions. The
trial magistrate committed both of them to the High Court for
The first accused had one previous conviction for the
same offence. The second accused had two convictions for common
theft; the last
of those convictions, however, took place in 1979.
The learned trial magistrate, in an admirable
exposition of the authorities in the matter, gave full reasons for
committing the accused persons to the High Court. She
has referred in
particular to the authorities of Rex v Thabo Mafaesa CRI/S/4/82,Rex v Letsapo, CRI/S/6/80, and Rex v Matloko &, Anor.
Review Order 21/80, the latter before Cotran C.J. In that case the
learned Chief Justice agreed with the observation of the late
Mofokehg J. in Rex v Letsapo that magistrates with limited
jurisdiction should not be permitted by the senior magistrate in the
district to try serious offences,as
otherwise the work of the High
Court would be greatly increased by magistrates lacking the necessary
powers of punishment.
In the present case the learned trial magistrate noted
that section 301(2) of the Criminal Procedure & Evidence Act 1981
that "sentences of imprisonment on different offences
in one trial are automatically consecutive". She observed that
maximum power of punishment was a sentence of two years'
imprisonment and, as she said, "if I had passed two years'
on each accused it would bring the total sentence to be
undergone by each accused to four years." It would seem
the learned trial magistrate had in mind to impose a
sentence of two years' imprisonment on each count, to be served
Section 301(2) of the Criminal Procedure and Evidence
Act reads as follows however:
"(2) The punishment(s) under this section, when
consisting of imprisonment shall commence the one after the
aside or remission of the other, in such order as
the court may direct unless the court directs that such punishments
shall run concurrently."
The learned Crown Counsel Mr. Seholoholo agrees with me
that from the record it would appear that the learned trial
not consider the question of her discretion under
section 301(2), as she made no reference to such discretion. As I see
this Court is at large in the matter of such
I have heard both accused persons in mitigation. I
observe that they pleaded guilty. In this respect they are entitled
to some leniency.
I take into account the fact that both offences,
while not committed in the course of the same transaction, were
within a period of less, than two weeks, and
could therefore be regarded as forming part of a course of conduct. I
also take into
account the fact that the stolen property was
recovered in both cases. I consider a sentence of two years'
imprisonment, on each
count, to be entirely appropriate. Nonetheless,
in the exercise of my discretion, I consider also that under the
sentences should be served concurrently. I
sentence the accused persons as follows:
Accused No.1 - Count 1 : 2 years' imprisonment Count 2 :
2 years' imprisonment
Both sentences to be served concurrently.
Accused No.2 - Count 1 : 2 years' imprisonment Count 2 :
2 years' imprisonment
B.P. CULLINAN CHIEF JUSTICE
11th June, 1987.
For the Crown: Mr. T. Seholoholo For the Accused:
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