Review
Case 311/2006 CR no.202/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX CROWN

V

MOKOTO
NTLOANA ACCUSED 1

LITLHONG
MOTHONYANA ACCUSED 2

Review
Order no.25/2006_____________In Maseru District

REVIEW
ORDER NO. 25/2006

The two
youthful accused were sentenced to differing periods of three (3)
years for Accused 1 and two (2) years eleven months -
Accused 2.

Accused
were convicted of Housebreaking with intent to steal and theft
involving a lot of multiple items listed

2

under
eight heads, as Exhibit "A". The property is also listed
under Annexure "A" to the Charge Sheet and exhibit
"A"
is shown in document/form LMPS 12 such property was found by police
recovered and attached. It was a lot of property.
I presumed (in the
absence of a specific order) that the property was returned to the
complainant . If not, I would safely order
that the property be
returned to the complainant, as a competent order. The offence
committed was therefore serious.

The
Accused are aged 21 years and 18 years of age respectively as shown
in the Charge Sheet. They are young people. This is not
shown to have
impressed the court in its sentence. May be it did but since there
are no reasons for sentence, this is not demonstrated.
I however,
presumed that the age and youth of the Accused did influence the
court.

3

It is
desirable that a judicial officer should give reasons for sentence.
If not, it may suggest that the court has not considered
the relevant
factors and could have adopted a passive role. In addition all except
the presiding officers may be in the dark as
to how the sentence was
arrived at. There is no reason why an accused person should not know
the reasons for the sentence that
he has received. See Mofokeng j in
MATHABO MOJELA v REX 1977 LLR 321 as quoted in CRIMINAL LAW AND
PROCEDURE THROUGH CASES, 1985
at page 256.

In the
circumstances such as the present an appeal or review court is at
large to interfere with the sentence on good grounds. Such

circumstances, where reasons for sentence are absent, may suggestion
that the court has not exercised its discretion judicially
in that it
may have ignored certain relevant considerations.

4

This
court grants that the crime committed by the Accused is a serious
one. Perhaps the court a quo's perception may have been that
the
crime is prevalent. But it has not said so. The principle is that
every consideration must be based on proved facts unless
the court
take judicious notice of a particular piece of evidence. If so it
must say so.

The
problem with this state of affairs is that the Accused are young. In
addition, they are first offenders and thirdly they have
not been
given an option of a fine. In particular it should have been stated
why they were not given an option of a fine when the
sentence is on
the side of being heavy.

5

In our
law every sentence that is beyond eighteen (18) months is not a petty
sentence but a heavy sentence. Furthermore, the property
stolen
appears to have been recovered when one looks at the contents of the
Annexure "A". If not this should have been
stated.

I
consider that in the above circumstances this court should intervene.
While generally accepting the sentences, an option of fine
should
however be imposed as follows:

Accused 1
Three (3) years or M3,600.00 Accused 2 Two (2) years Eleven (11)
Months or M3,500.00.

This
should meet the real and substantial justice of the sentences.

T.MONAPATHI

JUDGE

Copy: The
Chief Magistrates

The
Magistrate - Thaba-Tseka

O/C
Police - Thaba-Tseka

O/C
Central Prison

Director
of Prisons

O/C
Prisons Maseru

O/C
Police Maseru

Director
of Public Prosecutions