CRI/A/22/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

THABISO
SHALE Appellant

And

REX_
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice Monapathi On the 20th day of June, 2007

The
outline of the offence is to be found in the statement of the public
prosecutor. Again the Appellant (Accused) confirms the
correctness of
the statement. Having been charged, he admitted guilt. The learned
Magistrate convicted him of the robbery with
which he was charged. He
was sentenced to a term of imprisonment for four (4) years.

The
background of this appeal is that the Appellant had applied for
review of the proceedings of the Magistrate Court of

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Maseru.
The learned Judge of the High Court, having received the review
proceedings, was of the opinion that, properly this was
a matter for
appeal. This Appellant who I will also call the Accused should be
thankful that the learned Judge decided that the
matter be dealt with
as an appeal.

I believe
that the learned Judge had also been observant and was much aware
that a practice has crept in whereby practitioners either
by design
or intention or naivete now deal with matters which are properly
appeals as if are matters for review. This practice
is wrong because
matters of appeal will clearly be matters of appeal. It is not in
every matter where a presiding officer who commits
an error of
judgments commits an irregularity which is a gross irregularity. The
procedure for review is prescribed for cases in
which a gross
irregularity has occurred. And, of course, decided cases and text
book writers speak of situation of mistake of law
as one of the
exceptions.

In the
instant case, the learned Judge was correctly of the view that the
matter was for appeal. When I was seized of

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the
matter I directed that proper appeal procedure be followed. This
means that grounds for appeal be drawn and filed, proper appeal
fee
be paid, and then the matter be registered as an appeal in the high
court. Mr Molemane for the Applicant said he complied,
and this was
confirmed by Ms Kanono by Crown, who assured me that this was so.

I am now
in procession of a notice of appeal with only one ground, a sketchy
ground of appeal. It is sketchy in that, when it is
said there were
mitigating factors, they were not outlined. I would complain that
such is not a proper way of going about illustrating,
reflecting,
stating a ground of appeal because there is no sufficient statement
of the issues that the other side must meet.

It is
common cause that Appellant is a first offender. In this regard the
law on sentencing is clear that where an option of a fine
is imposed
it does not necessarily mean that the sentence is more lenient. It is
just that a court may say in the circumstances
of a case that option
of a fine is proper and

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fitting.
At the same time our procedural law is that when an accused is a
first offender the court must consider whether a non-custodrial

sentence is also an option. If it is so it must be imposed unless
there are compelling reasons.

Here I
agree that the offence was a serious one but the Accused is a youth.
Secondly the Accused is a first offender. And thirdly
he admitted
guilt. In my view the items robbed were not substantial except that
the value of the key and of the watch is not stated.
I have
considered these in varying the sentence as I will. I have discussed
the issue of paying the M140 to the complainant with
accused. He made
an undertaking but I will not bind him.

I have
also noted that Accused has already served part of the time in
prison. This should also be considered. I underline that the
crime
committed by Accused is still of a serious kind. This will be
reflected in the variation that I will order.

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The
variation is as follows: The Accused is given an option of a fine of
Four Thousand Maloti (R4,000). It should however be reduced
in
proportion to the number of months he has already spent in prison.

T.
Monapathi

Judge