IN THE HIGH COURT OF LESOTHO
In the matter between -
KHOPOTSO RAKUBA 1st Appellant
KHOTSO MAPHELFBA 2nd Appellant
Delivered by the Honourable Mr. Justice J.L. Kheola on the 7th day of March, 1988.
The appellants were on the 16th September, 1987 charged with the offences of Forgery (1st count) and Uttering (2nd count) before the Maseru subordinate court of the 1st Class. They both pleaded guilty to the charges and after the public prosecutor had given a summary of the facts of the case as disclosed by the evidence in his possession, they were convicted of forgery and not found guilty of Uttering. They were subsequently sentenced to two (2) years' imprisonment each.
The appellant, who was the 1st accused in the court a quo, is appealing against sentence only.
The facts of the case were that at all relevant times the appellant was an employee of Lesotho Bank and was a teller at the inquiries section of the Lesotho Bank branch at the Industrial
Area in Maseru district. Accused 2, who has not appealed, was working at the hair saloon of one 'Malefa Mapheleba who is his sister. On the 11th September, 1987 accused 2 met and agreed with the appellant to steal money from 'Malefa Maphelebo's current account at the branch where the appellant worked. On the following day accused 2 met the appellant at his place of work, the latter gave the former a cheque leave number CH6867 for account number 01800624023 which belonged to Dr. Moorosi and which had been closed for a long time. The appellant showed accused how to fill the cheque. It was an order to pay CASH or Bearer the sum of four thousand maloti and the signature of 'Malefa Maphe'eba was forged.
The appellant and accused 2 were afraid or presenting the cheque for payment themselves and asked one Ralele Sehloho to cash it on their behalf. Ralele duly presented the cheque but the teller referred it to the bank authorities because it involved a fairly large amount. While the cheque was being processed Ralele ran away. The matter was reported to the police and the appellant, accused 2 and Ralele Sehloho were arrested and charged accordingly. Ralele has escaped from custody as is still at large.
The learned magistrate has not filed any reasons why he acquitted the appellant and accused 2 of uttering. Although they did not personally present the forged cheque for payment, they ought to have been found guilty of uttering because they asked Ralele to utter the forged document on their behalf. Nevertheless I shall not alter the acquittal because the Crown has not appealed and also because the sentence seems to be on the harsh side.
The main ground of appeal is that in passing sentence the trial court did not take into account the mitigating factors advanced by the appellant. The record clearly confirms the appellant's contention because immediately after mitigation the court sentenced them to two years' imprisonment. It is an irregular procedure to pass sentence without giving any reasons and without considering mitigating factors advanced by the accused.
Because for this iregularity this Court is at large to consider. what sentence to impose after considering the mitigating factors.
The appellant is first offender and is a very young man of twenty-one years of age. He pleaded guilty and thereby showed remorse. There was no financial loss to the bank because the forgery was discovered before the cheque was cashed. Forgery and uttering are very serious offences especially when committed by person in a position of trust like the appellant in the bank.
Taking into account all the factors I tend to agree with the suggestion that the appellant ought to have been given the option of a fine.
In the result the sentence imposed by the trial court is set aside. I substitute a sentence of M500-00 or 12 months' imprisonment.
7th March, 1988.
For Appellant - Mr. Moiloa
For Crown - Miss Moruthoane.
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