HIGH COURT OF LESOTHO
by the Honourable Mr Justice T Monapathi On the 9th (day of May,
about mitigation of sentence. I have recorded that the Accused has
admitted guilt to Culpable Homicide. Reference is also
section 240(1)(a) of the Criminal Procedure and Evidence Act of 1981
(CP & E). And the person killed by the Accused,
the victim, is
his own father. His own blood.
I may as
well mention that the Accused has committed a serious crime, and even
the assault itself is of a violent and heinous kind
as the doctor's
of by noting that the reason for this killing is a very infinitesimal
and trivial dispute. It was as to who next was to
buy supply of
mealie-meal for the family. But that does not make the crime less
serious than it really is.
about mitigation of sentence. To start with I have noted that when
speaking about whether the Accused can effect reconciliation
very impressed with his attitude. It is that he is prepared to say
that he is sorry to his siblings. And to say he is sorry
mother. I thought it was genuine and that he will do so given the
opportunity. That he has spoken to some of his relatives
believed him. Indeed this would be consistent with or approximating
the Restorative Justice principle which modern sentencing
accepted that Accused is a first offender, meaning that he has not
before come before courts and the probability is that he is
not a man
who has brushes against the law.
also noted that he pleaded guilty and I have already spoken about the
nature of the cause of this fight or the assault. Significantly
was not premeditated. In addition he seems to have reported the
killing or the assault himself, if I have understood the outline
the Crown and the defence's submissions well.
that at 39 years of age Accused is still very young, and he stands a
chance of going straight after this case and after
He is a
married man although his wife has deserted him. I understood that he
has no child now. He has a dependant if I take his
mother to be his
dependant and then it seems that he would have a duty to support his
assault or the killing when it occurred, it was sometime ago, in
1998, I accept and I agreed with Mr. Mokoko that the whole
have been hanging over Accused's head, because killing a father is
traumatic enough. It eats one from inside and it
eats one from
outside. It is because one would certainly recognize in the
circumstance of the Accused, the changed attitude of
the community in
which he lives where he has done an illegal and unpleasant tiling of
killing his father as the Accused has done.
All of us are socialized
to accept that killing is a wrong, and killing a father or relative
is even more serious on one's conscience.
Therefore there has been a
punishment of some kind on him already.
other hand I repeat that Accused has done is a serious thing. He had
done harm to the community. And has transgressed the
law of the land
for which he must be punished. That is what the courts are for. The
courts are custodians of the morals of the
society. The court
administers the law on behalf of the society.
punish offenders because their duty is to protect the community. In
doing so they must do it properly.
the court must punish properly it means that they must take into
account the interest of the Accused as a person. And the
the community must be protected. Thirdly, the seriousness of the
offence, one of the aspects that the courts will always
be keen to
look at. But in punishing accused people there has to be a balance.
courts are warned not to be angry or overzealous to punish, because
primarily an offender is there to be rehabilitated even
when he has
done a serious thing. Legislation or the CP& E or other laws of
the lands prescribe certain kinds of punishment
for serious offences.
That is to say serious crimes deserve serious or much more severe
indication of that kind of attitude or of the seriousness of the
crime courts will resort to imprisonment because in certain
circumstances incarceration or deprivation of one's liberty is the
right kind of punishment in fitting circumstances.
As I have
said the society must be protected. In punishing offenders courts
also have a duty protect their own reputation, which
is that they be
effective and able to punish offenders, taking into account the
nature of their offences.
courts take proper recognition of the offences and the offenders who
are brought them, as I have alluded, the courts are warned
not to be
too harsh and on the other hand they should not be too lenient,
because doing justice is about bringing a balance when
offenders to prison still remains within the laws of this country.
But attitudes do change from time to time. It is to say
days Accused are sent to prison to be rehabilitated. And even the
attitude of the people who keep prisons has changed. It
is to strive
to rehabilitate inmates. The reason is not hard to find. It is being
said prisoners still belong to the community
and they will eventually
come back to the community. When they come back to the community,
they must come back having been reformed,
having been corrected. That
is why we use the word rehabilitation.
rewards in prison if an accused person appears to have been reformed.
But this is in accordance with the prison rules.
For us as courts it
is to mete out and impose sentences as they are prescribed by the
CP&E, which is our main guide and authority.
case and in these circumstances, this accused deserves punishment for
a term of imprisonment. I should be however as merciful
because it is a good punishment which is blended with mercy. This is
moreso because in the context of sentencing mercy
is an integral part
of justice. That is why we have
consider these many factors which Mr. Mokoko for defence has
addressed us about which I have taken note of. That is why I have
also looked into the circumstances of what has happened as reflected
in the proceedings or facts as outlined by Ms. Maholela for
as favouring the Accused.
other hand I am also reminded of what Mr. Seema Crown counsel has
said, about the interest of the community and about the
of the crime. Speaking for myself I have already referred to the
reputation of the courts, the integrity of the courts
should not pass nonsensical sentences. The courts should also take
all tilings into consideration bearing in mind
the standard of
community from which the Accused comes. He comes from a rural setting
where illiteracy or lack of sophistication
is often the norm. But
this should not be a complete excuse.
following approach and principles have been culled from various
authorities and South African cases.
been held that a sentencing court should consider the crime, the
offence and the interests of the society. See S VZinn 1969
(2) SA 537
(A) at 540 G.
the determination or assessment of an appropriate sentence, the court
is required to have due regard to the main purpose
namely, the deterrent, preventive reformative and retributive aspects
thereof. See S V Khuwalo 1984 (3) SP 327,(A)330D.
also been held that to these elements must be added the quality of
mercy, as distinct from mere sympathy for the offender.
See S VRabie
1975 (4) SA 855 (A). Other authorities have been of opinion that
mercy is in fact an aspect of justice. I agreed with
understanding was also that words are not always able to convey
concepts accurately but can be mere estimate of
That why it is difficult not to conclude that mercy is inextricably
linked with the concept of justice itself.
has been reiterated that sentence imposed should be in proportion to
the gravity of the offences. However, proportionality
is not meant to be an "eye for an eye" The latter
overemphasizes the retributive aspect of a sentence.
That is not
right. Proportionality does not however "imply that punishment
be equal in kind to the harm that the offender
has caused." See
S VMafh 1992(2)SACR495(A)at 497d
considered all the above I am persuaded that a sentence of five (5)
years imprisonment is a proper sentence for you Accused
circumstances of this case. I repeat that you will be sent for five
(5) years imprisonment without an option of a hue.
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