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.
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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.
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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.
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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