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 21st 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:
Acceptance of the plea by the Public Prosecutor.
Statement, by the Public Prosecutor, of the evidence in his possession which must disclose an offence.
The Judicial Officer must record the statement recited by the Public Prosecutor.
The Judicial Officer, after (b) above, must ask the accused if he accepts the facts as recited by the Public Prosecutor; and
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.
M. HLAJOANE
JUDGE
For Appellant: Mr Tsenoli
For Respondents: Mr Seema
