CRI/A/30/98 IN THE HIGH COURT OF LESOTHO
In the matter between:
Delivered by the Honourable Mrs. Justice K.J. Guni on
the 29th day of March 1999
The accused in this case was charged and convicted of
the crime of Housebreaking with intent to Steal and Theft. The facts
admitted by the accused, showed the court that this
accused effected entry into the cooperative union store by removing
part of the
corrugated roofing. Once inside the store he took and
removed from there (3) three saddles which were in the lawful
the complainant. The total value of the property stolen
is (M4200-00) Four thousand and two hundred Maloti.
The breaking into the store and theft must have happened
during the night of the 6th January 1998, because on that date
closed and locked the door of the store. It was the next
day when he found that the corrugated roofing of the store had been
and entry into the store effected.
The circumstances of the case, more particularly the
removal of the roof by the accused for the purpose of gaining entry
store show the determination on the part of the accused. It
was not just juvenile delinquency. The accused was sentenced to a
of M5000, or 5 years imprisonment. It is against this sentence
that this appeal was noted on the ground that the learned magistrate
erred in law by failing to take relevant factors into account in
mitigation of sentence.
On appeal the court is not entitled to interfere with
sentence passed by a trial court. Sentencing is preeminently the
within the discretion of the trial court. S. Juta 1988 (3) SA
235 (T). The trial court has had the opportunity of observing the
and the witnesses. Their demeanour as witnesses makes an
impression which influences the court when assessing an appropriate
On appeal the court does not have this advantage of making
its own observations of the demeanour of witnesses hence the
to interfere with the sentence passed.
The interference with sentence on appeal is
permissible on occasions when the court is satisfied that the
discretion was not
exercised judicially. MOREKE LEBITSA & ANOTHER
v R 1980 (2) LLR 404 S v IVANISEVIC & ANOTHER 1967 (4)
The discretion is not exercised judicially if the trial
court failed to take into consideration those factors which it was
to consider. S v WHITEHEAD & ANOTHER 1971 (4) SA 613.
Sentencing is perhaps the most difficult part of the
work of the trial court. Great care must be taken by that court in
of the interest of the accused person on the one hand
and those of the public on the other hand. The court may err if it
much attention to protection of interest of the public
at large at the expense of the accused person or vice versa. The
endeavour to place sufficient weight on all relevant
factors. WHITEHEAD & ANOTHER 1971 (4) SA 613. Failure to do so
in the unjustifiable exercise of judicial discretion. S v
Fazzie and Others 1964 (4) SA 673 (AD) at 684. It is in this
where the trial court is found to have misdirected
itself in the exercise of its discretion, that the court on appeal
with the sentence imposed by the trial court.
In our present case, the trial court has failed to give
reasons for judgment. The accused person is entitled to know why he
treated in that fashion by the court. By giving no reasons
the trial court denied the accused person an opportunity to know and
the significance of his sentence. In many occasions this
court has emphasised the necessity to give reasons for sentence.
v REX CRI/A/17/94.
Having given no reasons for sentence the question of
the trial court: having exercised its discretion
improperly arises. The answer to the question whether the sentence
appears to this
court to be startlingly inappropriate, must be in the
affirmative where there are no reasons given for sentence. That being
appeal, the court is at large as far as sentence is concerned.
The accused pleaded guilty to the charge. Depending on
the circumstances of the case, the trial court ought to have taken
into consideration when assessing an appropriate
sentence. A plea of guilty does not at all times indicate contrition.
At times an
accused pleads guilty because he was caught red handed.
At times an accused person pleads guilty genuinely showing remorse
he did. The trial court must establish the attitude of the
accused as regards the commission of the offence in order to make
assessment of sentence. It is argued by counsel for appellant;
Mr. Mathafeng that this factor was totally ignored by the trial court
since there are no reasons given for sentence. Counsel is justified
in this criticism.
The accused is the first: offender. There are few and
rare instances where even first offenders find themselves in
This is not one of those instances. MAKHETHA MPHUTLANE v
R (2) LLR 338. Generally great care is taken to avoid sending
offenders to prison where they may be influenced by hardened
criminals whom they are likely to meet there. First offenders must be
given an opportunity to correct their mistakes.
The accused in our case is (19 years) nineteen years
old. He is a young offender. Emphasis must be placed on his
correction rather than punishment. It is generally
assumed that a young person is amenable to change. There is still an
to teach him respect of other people and their rights in
their property. It is only in extreme cases that a young person
punished by incarceration.
S v DINGISWAYO AND ANOTHER 1985 (3) SA 175 at 178.
KABETSE KATSE v REX CRI/A/32/92
The learned magistrate having given no reasons for
sentence it is safe to presume that this is not one of
those extremely bad cases otherwise the magistrate should have
special circumstances which make this case one of the
extremely bad ones.
The young offenders, particularly if at the same time
they are first offenders, must be encouraged to turn over a new leaf.
considered in their favour that they have fallen from grace and
are still amenable to correction and rehabilitation. Part of their
sentence must be suspended on an appropriate conditions so that they
are constantly reminded that they must remain clean least they
down upon themselves further punishment which has been suspended.
This is another way of keeping them as law abiding citizens.
The learned magistrate sentenced this accused to a fine.
Once the consideration is made by the court to impose a fine, it is
that that court does not wish to incarcerate the accused. That
being the case, that option to pay a fine must be real. It must be
amount which is within the reach of the accused
person. Otherwise if the fine is clearly an amount which
is well beyond the means of the accused person he has no choice but
to jail. In this case the accused pointed out to the court in
mitigation of sentence that he is 19 years of age and unemployed. The
accused lived with his unemployed mother. The father has deserted
them. It must have immediately crossed the mind of the learned
magistrate that there is no way this accused can pay M5000-00. He was
therefore bound to serve the alternative period of imprisonment.
option of a fine was in this case merely academic and served no
meaningful purpose. All these factors had been totally ignored
trial court. This leaves the matter of sentence wholly open for the
court on appeal to interfere with.
The sentence is altered to read:
Sentenced to 2 years imprisonment, one year of which is
suspended for a period of 5 years on condition that the accused does
that period commit any offences involving theft. Since the
accused has already served one year imprisonment he must be released
K.J. GUNI JUDGE
29th March 1999
For Appellant : Mr. Mathafeng For Respondent: Ms
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