CRI/S/6/04

CRl1481/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

V

MOKEBE
SELLO

MASERU

SENTENCE

DELIVERED
BY THE HONOURABLE MRS JUSTICE K.J. GUNI 2nd MAY 2007

This
matter was placed before me for sentence. The accused was tried and
convicted by the Magistrate's court sitting at MASERU.
The accused
was charged and convicted of contravention of Section 8 (1) SEXUAL
OFFECES ACT 3 of 2003. The accused had pleaded guilty
to the charge.
After the facts of the case had been outlined and accepted by the
accused before court, he was accordingly found
guilty as pleaded.

The
accused, is a Mosotho Male adult of forty-six (46) years of age. The
complainant is a girl child of (15) fifteen years of age.
On the 5th
July 2004, there was a sale of local brewed beer at her home. There
were many people who had come there to buy and drink
their beer. When
it was late and time to retire to bed, the beer drinkers were asked
or ordered by the owner of the home to leave.
The drinkers left
except one - this accused. He refused to go away. He remained seated
on the chair.

The
complainant - Rethabile and her two brothers slept in that same room
with accused sleeping on the chair. The two boys slept
on the bed.
Their sister - this complainant, slept on the floor.

Early in
the morning, at about 05.00 hours the complainant was awakened by the
presence of someone on top of her body. This person
had inserted his
penis in the complainant's vagina and was forcing her to have sexual
intercourse with her. The complainant did
not feel or see the accused
come on top of her. She did not see or feel him take off her clothes
she just became aware of the presence
of the person on top of her, at
the time that person was forcing her to have sexual intercourse with
him. The complainant noticed
and recognized the person on top of her
as that person who refused to go away last time before they went to
bed. This was one

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of those
people who were drinking the locally brewed beer at her home. She
noticed him to be that man who slept on the chair he
was sitting on
in the room she and her brothers slept in.

The
complainant screamed, for help from her two brothers. She. also
appealed to the accused to stop committing that sexual act upon
her.
He stopped. He got up and ran away. The two brothers also got up and
gave chase after the accused. The report was made to
the chief. The
members of the public searched for and found the accused. They
escorted him to the chief's place. From there he
was taken to the
police.

At the
police station the accused was asked to explain his alleged actions.
His explanation was not satisfactory. He was therefore
arrested and
charged with the crime of contravening Section 8 (1) SEXUAL OFFENCES
ACT 3 OF 2004.

After the
conviction, the accused and the record of the proceedings were
forwarded to this court for sentence in terms of Section
31 (2)
SEXUAL OFFENCES ACT.

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In
mitigation of sentence the accused pleaded that he was acting under
the influence of alcohol. In other words, he said he was
drunk. He
added that he had been possessed by an evil spirit. This was the
first time he committed such an act.

Having
consumed alcohol does not per se make the person drunk. The accused
person's plea of drunkenness is not consistent with his
action.

First of
all, he surreptitiously undressed the sleeping girl so that she did
not feel or hear the movements of the process of undressing
her. The
accused must have been extremely carefully to go on top of that
sleeping girl child before she could wake up and see him.
It is not a
small fit to prepare and place the girl child's body in such a way
that the girl child became aware of the presence
on top of her of the
accused only at the time the accused was forcing her to perform a
sexual act with him. To accomplish this
trick the accused must have
been in full control of his own faculties. He therefore was full
aware of what he was doing. He knew
fully well what he was doing.

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The
parliament as set out the law and the appropriate penalties for those
who broke that. The learned Magistrate found out that
the full force
of the law must brought to bear upon this accused. If I may add, he
was right. The type of sentence which is stipulated
by the law for
contravention of this section under which this accused was found
guilty; far exceed the jurisdiction of the trial
Magistrate. As set
out in the Act under which the accused was convicted, he was
forwarded to this court for sentence.

SENTENCE:

The
accused is sentenced to ten years imprisonment without an option of a
fine.

Sentence
to run from the date of his conviction.

K J GUNI

JUDGE

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