IN THE HIGH COURT OF LESOTHO
In the matter between:- CRI/T/285/2006
TSELISO STEPHEN DLAMINI ACCUSED
Delivered by the Honourable Madam Justice M. Mahase
On the 21ST October, 2011
The accused has already been convicted of a number of fraud counts and defeating or obstructing the ends of justice. Judgment was delivered on the 28th August 2011.
Sentencing was postponed at the request of the defence counsel who indicated that he would like to study the judgment before he made submissions in mitigation of sentence on behalf of the accused.
The matter was then postponed for sentencing to the 21st October 2011. In the meantime both counsel prepared and filed their submissions or arguments on sentence including argument on mitigation of sentence.
In a nutshell, it was submitted or argued in mitigation of sentence on behalf of accused that:-
The accused has no previous convictions. This Court has therefore been asked to take this factor into consideration in imposing sentence upon the accused; and that as a principle of law the court should be reluctant to impose a custodial sentence upon the accused.
Reliance in support of the above was placed on the case of Mashai Nots’i v. Rex – CRI/A/6/2006 (unreported)
Of course, counsel for accused was quick to indicate that the Court in its discretion should consider the circumstances of each case and that it should also exercise its discretion judicially.
He conceded that even though the court should consider this factor, it is undenied that the crimes of fraud with which the accused has been convicted are serious and would attract custodial sentence.
It was also argued in this regard that the accused has been cooperative with investigators and did not behave in an improper manner after the commission of these frauds.
That in effect, he was greatly and genuinely remorseful such that if it pleases this court, then it should impose a lenient sentence upon the accused. Vide George v. R L.A.C 2000-2004 379 at 384 G-H.
It has further been submitted on behalf of the accused that the court should also take into account and as a mitigating factor on sentence that the accused has been remanded in jail awaiting prosecution to finality of this matter for a period of three years.
Counsel for accused has further submitted that for the reason that this case has been hanging over the head of the accused for about three years, that is a factor which is to be considered in favour of the accused in assessing his sentence. He referred court to a number of authorities in support of this argument to wit see:
- Mofokeng – Criminal Law and Procedure through cases page 132 and other authorities then cited.
- Rex v. Moeketsi Makhetha L.L.R 1980 (2) 332 at 333.
I pause to note that while it is indeed trite that each case should be treated on its peculiar circumstances, and which fact the defence has alluded to, the defence seems to have overlooked the fact that, the accused had absconded to England on the pretext that charges had been withdrawn against him. It is now a matter of common cause that that was never the case.
The accused has himself to blame for the delay in the prosecution of these cases to finality because of the above stated fact. Had he not so absconded, the case against him and Peggy Thakeli, would have been prosecuted at the time when Peggy trial was prosecuted. In brief the accused has brought the demise of having the prosecution of his case delayed upon him.
He cannot therefore rely on the principles of law stated in the case which have been cited in support of his argument in this regard. Put conversely, the facts and circumstances of this case are distinquisheable from those cases upon which the accused relies in support of his argument.
Lastly, it has been argued on behalf of the accused that, in imposing sentence, this Court should strive towards uniformity or consistency or equality of sentences and that the disparity between sentences on matters of similar nature should not be too glaring. Vide:
Nthongoa and Others v. Rex 1980 (1) LLR 196 at 198.
Tsatsane v. R. 1974 – 75 LLR 105 at 115.
R v. Moerane 1974 – 75 LLR, 212
In particular, he relied on the case of Rex v. Peggy Thakeli C of A (CRI) No. 11 of 2009 where, the accused was sentenced to a period of eight years imprisonment on similar charges of fraud as have been preferred against the accused in the instant case.
This Court notes again, that in its argument in support of the uniformity of sentences, the defence as notably refrained from highlighting and or referring, even very slightly to the role that was played by the accused in the commission of these offences from the planning and execution of all the crimes with which he was ultimately convicted.
This now brings me to deal with the submission of the crown on sentence. Indeed and correctly so, it is the argument of the crown that the prosecution carries a duty to assist the court to come to a suitable sentence. This indeed is a new trend which is welcome. In fact, both the crown and the defence have a duty to assist the court in passing a suitable sentence.
This is moreso in the instant case because the seriousness of these crimes is a matter of common cause. The crown has most ably also spelt out authorities in support for its argument that this court should consider in passing sentence. It has cited a plethora of such authorities to which; but to mention a few are:
S v Zinn 1969 (2) S.A 537 (A) at 540G; where the court remarked that:
“It then becomes the task of this Court to impose the sentence which it thinks suitable in the circumstances. What has to be considered is the triad consisting of the crime, the offender and the interests of society”.
- Rex v. Matehen 1949 (2) S.A. 547 (A) 550where the court per Centlivres J.A remarked that:
“It is the duty of the crown to place all such facts before the trial court as are necessary to enable the court to pass an appropriate sentence”.
There is no doubt that in the execution of its duties in this regard, the court should also pass sentence and or impose punishment which fits the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances
Vide – S. V. Rabie 1975 (4) S.A 855 (A) at 862 G.
Of course, the court should guard against imposing severe sentences as to sacrifice the accused on the alter of deterrence –
Vide: S. v. Sobandla 1992 (2) SA CR 613 at 617 G.
See also the case of
S v. Khumalo 1984 (3) S.A. 327 (A) at 330 D and
S.v. Mhlakaza 1997 (1) S.A. CR 515 (SCA) at 518B.
It has been submitted on behalf of the crown that by having induced Magistrates to attempt to defeat the ends of justice, the accused did strike at the very heart of the administration of justice, as such this crimes entails inducing a magistrate to disregard the very job he/she is paid to perform and to disregard the interests of the community a Magistrate is employed to serve.
This Court agrees entirely with the argument/submissions in this regard and as contained in its heads of arguments need no further elaboration lest its impact and correctness be diluted. There is no doubt in the mind of this Court that the crime of attempting or that of attempting to defeat the ends of justice is unquestionably serious. This is particularly so in cases where among others public officials concerned with the administration of justice are involved.
- S. v. Mane 1988 (3) S.A. 641 (A) at 666A
- S. v. W 1995 (1) SACR 606 (A)
See also other cited cases at page 9 of the crown’s head of argument on sentence.
The sentence to be imposed upon the accused with regard to all the fraud charges:- In a nutshell, one cannot ignore the fact that the frauds in questioned were, for a considerable length of period very carefully planned and ultimately executed. These are all very serious criminal offences. It is difficult to imagine anymore serious incidence of fraud in the history of this country where giant institutions such as the LHDA and ABSA were hard hit at the very heart of their operational systems. The crown has perfectly summed up the seriousness, the far reaching consequences and the role that was played by the accused in the very beginning stages of the plans to commit these crimes. Indeed there is no denying the fact that the accused was actually not only a participant in this saga. He was in fact the master-mind and a ring leader in all of these.
This makes him far more blameworthy than Peggy and the two telecom officials who has corrupted. The accused was no doubt, a driving force and the brain behind commission of these crimes. Worst still, he has never, and contrary to what was argued on his behalf, shown remorse for having planned, and committed these offences.
The saddest part of the whole episode in this case is that some people have been adversely or negatively affected by his involvement with them and by his having corrupted them.
Of course there is no denying that they too, are to blame for having allowed themselves to be corrupted.
It is the considered view of this Court that having regard to all the surrounding circumstances of this case; as well as having regard and taking into considerations all submissions made in mitigation of sentence by both counsel herein, the appropriate sentences to be and which are imposed upon the accused are the following:-
Count 1:- He is sentenced to imprisonment for fifteen years.
Count 2:- He is sentenced to fourteen years imprisonment.
Count 3:- He is sentenced to thirteen years imprisonment.
Count 4:- He is sentenced to ten years imprisonment
Count 5:- He is sentenced to five years imprisonment and
Count 6:- He is sentenced to five years imprisonment
Sentences are to run concurrently. This means that the accused has to serve a term of fifteen years imprisonment.
My assessor agrees
For Accused - Adv. L. A. Molati
For Crown - Adv. H.H.T. Worker S.C. assisted by
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