CRI/APN/174/2008
IN THE HIGH COURT OF LESOTHO
In the matter between:
THABISO MOTOLO Applicant
andMAGISTRATE – BEREAMAGISTRATE’S COURT 1st RespondentSENIOR CLERK OF COURT 2nd RespondentTHE DIRECTOR OF PUBLIC 3rd RespondentPROSECUTIONS
Judgment
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 2nd June, 2008.
The Applicant approached Court seeking for review of the proceedings by the Senior Magistrate – Berea in CR217/07. He wanted the Court to review, correct and set aside those proceedings as being irregular.The Application was opposed but the Crown however never filed any opposing affidavit and the matter proceeded on the Applicant’s papers. The Applicant advanced three grounds for review, namely:
Failure by the Court to make enquiries as to the mitigating factors. Effect of such a failure.
- Proof of existence of previous convictions.- Failure to give reasons for sentence and the effect thereof.
Applicant argued that the Court a quo failed to make the necessary enquiries about the existence of the mitigating factors in favour of the accused. He said the Court was duty bound to have made such inquiries by putting the relevant questions to the accused who was not legally represented. But my reading of the proceedings by the trial Court showed that in fact the accused had something to say in mitigation of sentence. He prayed the Court to consider that he had pleaded guilty to the charge and that he was a married man with a minor child aged 1 year 2 months, and that he and his wife were not employed. He even expressed how sorry he was for his actions.According to the record, what the magistrate failed to do was to reflect on the record that in passing sentence he in fact did consider the mitigating factors advanced by the accused. The fact that the accused did plead guilty to the charge proved how remorseful he was and he even said he was sorry for his actions. He never wasted the Court’s time in calling Crown witnesses to prove the case. That procedure for mitigating factors has not been introduced for fun but for a reason. The Magistrate has to consider the mitigating factors in deciding on the appropriate sentence to be imposed. So that if the Court on review discovered that such factors were not considered as in the present case, has to order a re-trial or remitting case to the trial Court for consideration of those factors and thereafter imposing a fresh sentence.The record also reflected that the Public Prosecutor stated that the accused had a previous conviction relating to a firearm. Whether or not he had stolen a firearm or used it without licence was not clear. The question that one would ask would be, what of the firearm?
Section 233 of the Criminal Procedure and Evidence Act 7 of 1981 contemplated tendering in Court proof of previous convictions. This would be done by calling of the Clerk of Court by the Prosecutor to come and produce documentary proof of such convictions from the Court’s records in his custody. In casu, this was never done, but the magistrate seemed to have taken the Prosecutor’s word on the previous convictions and sentenced the accused. This was irregular and had prejudiced the accused.The Court therefore on the 7th April, 2008 considered that ordering a re-trial in a case of housebreaking where a lot of items were stolen and that which was recovered having been returned to the complainant, would not be a practical exercise. The accused in the re-trial may choose to plead not guilty and once that is the position there would no longer be any exhibits to produce before Court. Even the damage to the building where accused gained entry may have already been repaired. So that the prosecution would not have it easy to prove its case.I therefore ordered that since the procedure up till the stage of the verdict had been proper, that the case be remitted to the Magistrate to consider the mitigating factors in his judgment. Also that the Public Prosecutor should show proof of previous conviction which he said related to a firearm by handing in by the Clerk of Court, a certificate as proof of such previous conviction and show in his judgment that it had an impact in passing sentence. Thus the sentence had to be passed afresh after having considered both the mitigating factors and the previous conviction.A time limit was given within which to pass sentence afresh, but when the time came the Magistrate had yet not complied. This raised a great concern to this Court. The concerned Magistrate was called by this Court to come and explain, only to find that the order after it had been served on the Clerk of Court was never taken before the trial Magistrate. The Court on review confirmed the conviction but set aside the sentence of M7000.00 or seven years imprisonment and was substituted by one of four years imprisonment, half of which is suspended for a period of two years on condition that the accused during the period of suspension is not found guilty of a similar offence. The sentence to start running from the date that the accused was sentenced, which was the 13th June, 2007.
A. M. HLAJOANEJUDGE
For Applicant: Mr MokokoFor Respondents: Ms Makholela