CRI/A/19/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RAMAEEO
TS'OKELI Appellant

And

REX
Respondent

Judgment

Delivered
by the Hon. Mrs Justice A.M. Hlajoane on 21^st December,
2005.

This is
an appeal from the Mafeteng Magistrate's Court. The Appellant was
charged with housebreaking with intent to steal and theft.
He was
unrepresented at the trial. When the charge was put to him he pleaded
guilty and after an outline of facts by the Public
Prosecutor, he
admitted the facts. He was thus found guilty as charged and sentenced
to a term of 15 years no fine. He has appealed
against both the
conviction and sentence.

The
Appellant is saying that the facts as outlined by the Public
Prosecutor did not disclose an offence, or prove the

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commission
of the offence of housebreaking with intent to steal and theft. To
support his argument he has cited R v Solomon Monyane
& Others
1980 (2) LLR 309.

The case
cited has laid out five essential elements that must be present
before a verdict of guilty can be returned where accused
had pleaded
guilty in terms of now Section 240 (1) (b) of the Criminal Procedure
and Evidence Act of 1981. They are:

1. Acceptance
   of the plea by the Public Prosecutor.

   
   

2. Statement,
   by the Public Prosecutor, of the evidence in his possession which
   must disclose an offence.

   
   

3. The
   Judicial Officer must record the statement recited by the Public
   Prosecutor.

   
   

4. The
   Judicial Officer, after (b) above, must ask the accused if he
   accepts the facts as recited by the Public Prosecutor; and

   
   

5. If
   the accused admits the facts contained in (b) above only then can
   the Court bring a verdict without hearing any evidence.

   
   

In this
appeal all the above essential elements were satisfied. As correctly
submitted by the Crown there was therefore no need
to prove the
actual breaking in because the

possession
and that the Appellant never challenged the charge is evidence enough
to prove the crime of house breaking.

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Besides,
the outline of facts which the Appellant admitted clearly indicated
that the complainant found her house broken into and
found her
property missing. Complainant was going to show that she never
authorized anybody to enter her house and take her property.

Furthermore
the Appellant in admitting facts as true added by showing that some
pair of shoes and cassette was not part of the stolen
property but
that he bought such property with the money he stole from
complainant's house.

The
Respondent in support of his argument cited the case of R v Gentleman
1919 CPD 245 at 247, where the Court in a similar case
as the
present, showed that, .... "if being in possession of the stolen
property is evidence of theft, it must also be regarded
as evidence
showing that he is the person who broke into the house with intent to
steal." Kotze J in that case went further
to show that

"If he be found guilty of theft, however, he cannot also be
found guilty of housebreaking with intent as a separate offence

because in a case of that kind the housebreaking is not a substantive
offence but is merely matter of aggravation."

The fact
that the Appellant was found in possession of the stolen property
from complaint's house is enough evidence to

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show that
the Appellant is the person who broke into that house. Otherwise
there would be no convictions in cases where there are
no eye
witnesses.

The other
ground for review is that the trial Court did not give reasons for
conviction but the Respondent is saying the reasons
formed part of
the reasons for judgment, and besides, this being a procedural
irregularity ought to have been a ground for review
not appeal. I
would not agree with him more.

hich by
law is being regarded as pre-eminently a matter for the Court's
discretion, the Crown conceded that the sentence was exercise
in the
circumstances; Mojela v R 1977 LLR 321 at 324, and proposed a term of
10 years as opposed to 15 years. But as already stated
the question
of sentence is for the trial Court to decide not the Court on Appeal
merely due to the fact that Appellant was a first
offender. The Court
on appeal can still interfere where it feels that under the
circumstances of the case the sentence was not
proportionate.

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I quite
appreciate the reasons by the magistrate in passing sentence but the
Court feels that in balancing the mitigating factors
with the
sentence imposed, the 15 years has been on the harsh side.

The Court
on appeal confirms the conviction but alters the sentence to three
years imprisonment, half of which is suspended for
a period of three
years on condition that the appellant is not during that period of
suspension found guilty of a similar offence.
This is to be
communicated to Appellant immediately where he is serving his
sentence.

1. M.
   HLAJOANE

   
   

JUDGE

For
Appellant: Mr Tsenoli

For
Respondents: Mr Seema