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CRI/T/54/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX

V

PULANE
CAROLINE MOKONE

For the
Crown : Mr. H. Louw - instructed by the Director of Public
Prosecutions

For the
Accused : Mr. B. Sooknanan

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 9th day of May
2000.

This was
a summary trial. The Accused who was an adult female and Senior Data
Controller at the Compulsory Savings Section of the Treasury
Department of Lesotho was charged with fourteen (14) counts of the
theft alternatively, of fraud of monies which added to the total sum
of One Hundred and Four Thousand, One

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Hundred
and Six Maloti and Sixty One Lisente (M104,106.61).

The
charge was explained to her and her Counsel confirmed that she
understood the charge of Eleven Counts the three of which (2,8 and
10) had been withdrawn. She pleaded guilty to the theft, as charged.
Mr. Louw outlined the evidence that would have been tendered. This
outline the Accused and her Counsel confirmed as correct. The Court
then entered a plea of guilty to the eleven (11) counts.

The
Compulsory Savings Act 26 of 1974 (the Act) provided for monthly
deduction of an amount equal to 5% from the salary of civil servants
in the employ of Lesotho Government (the Government). Such funds were
to be paid into a special savings account in the name of each
individual Civil Servant by the Accountant General of this country.
Such amounts could only be withdrawn after five (5) years had elapsed
from the date of the first deduction.

Compulsory
Savings Order 18 of 1992 (the Order) amended the Act No.26/74 to
provide that all deductions and interest would be repayable to each
Civil Servant after three (3) years had elapsed from the date of the
first deduction. Early withdrawals were allowed where the participant
to the Compulsory Savings Scheme (the scheme) passed away, was female
and married, became ill or infirm, retired or resigned from the Civil
Service. The scheme was compulsory for all civil servants and
voluntary for employees of parastatal organizations as sampled on
page 45 of compiled bundle of exhibits collectively called Exhibit
"A".

No
separate bank accounts were opened for each individual participant
and all contributions were paid into a single bank account whilst the
Treasury Department maintained a separate ledger, recording amounts
due to participants.

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Contributions
by civil servants automatically deducted from their salaries and
updated in the records of the Compulsory Savings Department
contributions from employees of parastatal organization were paid
over to the scheme by cheque drawn on the bank account of the
relevant parastatal and accompanied by a contributors' list. The
scheme's records were then manually updated in the Computer
Department and which updated information was verified by the
department.

All
claims, whether arriving automatically after three (3) years or
entered manually were verified by the Department. The department then
compiled a list of all claims which then inputted by personnel of the
Computer Department. A transaction list was then printed and reviewed
by the Department. Subsequent to such review, the relevant cheques
were printed out in the Computer Department. The printed cheques were
then returned to the Department for review and despatched to the
Government departments and parastatals/organizations where claimants
were employed.

The
Accused was a Senior Data Controller in the Computer department her
responsibility being, inter alia, the verification of all data inputs
entered by data captive operations. Her duties included the
following: The supervision of data controllers and data captive
operations. Secondly, the development and maintenance of data control
capturing and operating procedures. Thirdly the furnishing of
technical guidance to data controllers. Fourthly, the development and
maintenance of a security system for specialized stationary and
lastly the performance of other duties as required by the Operations
Supervisor.

Within
the scope of her said responsibilities the Accused committed the
offences charged. She procured cheques form the scheme payable to the
names of

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persons
not entitled to received payment from the scheme. The list of such
names, cheque numbers and amounts in all the eleven (11) counts was
contained in Annexure "A" to the indictment. Having handed
the said cheques to such persons, who, after having deposited the
said cheques into the bank account where they met with payment by the
Government, then returned funds to the Accused. The numbers and the
amounts of those cheques were as aforesaid and as stated in Annexure
"A". And or alternatively Accused deposited the said
cheques into her own bank account where they were met with payment
formidably by the Government. The cheques, deposit slips, copies of
bank ledger entries, and entries in pass books were formidably
documented in Exhibit "A".

The
Accused therefore unlawfully and intentionally stole the said amounts
of money, the property of, or in possession of the Government of
Lesotho and/or the Central Bank of Lesotho.

Counsel
needed to prepare for the addresses on sentence and the matter was
therefore postponed to the 12th May 2000.

T.
MONAPATHI

JUDGE

9th May,
2000

SENTENCE

This is
about the sentence of the Accused who has already been found guilty
on the 9th May 2000.

First of
all I must comment about the degree of efficiency exhibited and the

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manifestly
good preparation made by the two Counsel. It is after a long time
that we have had such preparation in this Court more especially in
criminal proceedings which would such as this one involving a lot of
documentation. This bring in a lot of fresh air which reminds of the
days gone past when things used to be done in this fashion. I wish to
commend Counsel and they can rest assured that the Accused will
benefit through this task of her sentence, having been made easier.

Sentencing
is a very difficult exercise because one will not be assisted by any
guidelines or grid with which one would want to conform. That is why
it is always a matter of judge's discretion. These guidelines where
they have been developed, are formulated in order to promote a set of
prescribed principles, the most important of which is that a sentence
must be proportionate to the offence committed. In determining or
arriving at this proportionality regard must be had to the
seriousness of the offence, the social harm caused depending on the
different offences. The sentence would have to strive towards optimum
combination of restoring rights to victims, protecting society and
rehabilitating the offender.

It is
granted that in the use of the judge's discretion there is and there
can be considerable inconsistency in sentencing decisions. This is
caused by the absence of the guidelines and the fact that each
individual judge's acquires the practice as he goes along on the job
and will invariably follow certain personal inclinations including
prejudices. Hence mistakes made before are perpetrated as judges
normally follow some informal precedents developed by their
predecessors.

I must
say that I have been quite impressed about the personal circumstances
of the Accused person. I am satisfied that despite the poverty in her
upbringing she comes from strong roots and a upbringing that was
intended to bring about an upright citizen of this country. She also
has a school going child and her sister and

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the
sister's child thus perpetuating Accused's "remorseless
struggle" since her childhood. And I felt she may have deviated
late in life when she should not have done so. Her deviation was for
a period of about twenty (20) months up to when her criminal activity
was unearthed.

The
situation, at present, is that the Accused has committed a serious
crime. It is a crime which can fairly be called a crime of
sophistication and organization. Of course she was well placed, as
the judgment recorded, to have been able to marshal what resulted in
no mean loss to Lesotho Government. She had such duties as have been
described in the judgment and she was positioned to organize that
scheme where she dealt with lists of beneficiaries, computer records,
cheques and dispatch of cheques. When she deposited those cheques and
disbursed funds to herself and to undeserving others who were part of
the scheme and who benefited from the proceeds, it was a well thought
out campaign. I was satisfied that the Accused benefited more than
others. This was natural in the circumstances. The particulars of
those eleven (11) counts with which the Accused was convicted have
been outlines in the charge sheet and in the Crown Counsel's outline.
The total sum stolen has amounted to M104,000.00. They money was
stolen over a period of twenty (20) months or so. Indeed the other
moneys were disbursed to the Accused's other friends in the scheme.

I remain
satisfied however that the Accused was the principal thief or one of
the principal thieves. This theft has resulted in a loss to Lesotho
Government which an actual and direct prejudice suffered by the
Government in a trend of thievery which were rampant and involved as
it was suggested other big thieves who have been convicted already
and who were this Accused's superiors. Those could rightly be taken
to have been bad and wrong examples to their subordinates. And that
exposed the soft underbelly of the Treasury's vulnerability which
showed that a lot

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of
planning can make money easy to steal from Government. This Accused
was part of the organization whereby theft has been and it is still a
problem, in which people in whom trust was put have breached such
trust. This Accused was one of them. In which theft people were
mostly motivated by greed. This Accused was one of them.

Indeed
the Accused has no formal (previous) convictions. I am satisfied that
she must have been tempted along the way, to have desired these
contributions to the Compulsory Savings Scheme in which people
contributed. And indeed she admitted guilt. The fact that she did not
have any previous convictions and this fact of her having admitted
guilt I have noted. She must have been aware however that her conduct
would occasion loss to government, the state and the people of this
country.

I noted
that there were mitigating factors. The first one was the one that
she has admitted guilt. It is difficult to speculate as to why she
did so except that it is safe to infer that she did so as a result of
contrition and remorse, these which must have motivated her. The
other aspect is that there have been this long period of time over
which the threat of conviction or of this proceedings having hung
over her. That she had to withstand that kind of anxiety. That at
that time or most of that time she was out of work, most of the time
on half pay salary, pending the finalization of these proceedings.

I have
spoken about various factors I would say are aggravating, those that
demand that this accused person must be punished in a demonstrable
way. Because the Courts in punishing people who have been convicted
are performing a social function. It is also a social duty in that
the community would like to see that people are punished in the right
way, that sentences are not nonsensical. As it is said

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sentences
should not be disturbingly inappropriate, unduly lenient or unduly
harsh and merciless, thus risking the bringing of the administration
of justice into disrepute and would incur the indignation of the
society. They must be realistic. That is what the society demands.
But in doing so we must pay attention to the nature of the crime, the
interests of the offender and such circumstances has pointed out the
beginning of his address which I cannot ignore.

There are
certain requirements about punishment or sentencing that is the
intended effect of punishment as I have indicated earlier on. That
there must be deterrence, a certain amount of retribution and then
that an accused person must be seen to be rehabilitated in the end. A
combination or a balance of all those attributes is a useful
combination, but very much difficult to achieve. But any Court would
ideally want to achieve all those things.

It has
been said that according to modem sentencing principles sending
people to prison is to be seriously discouraged. It is suggested that
convicted people who are sent to prison will be contaminated. In that
he or she will meet unsavoury characters in prison, people who are
hardened and who will wrongly influence the convicted person from
good ways It is contended that this risk can be avoided by imposing
other sentences than imprisonment. These include suspensions,
postponements, reprimands and warnings. These further include
Community Service Sentence in petty offences. These all make sense.
But they have to acknowledge that the sentence of imprisonment, its
policy and its motivation are still to be found in the statute book.
It is a sign by which the Courts demonstrate the seriousness with
which they take the crime committed (which are often serious) and how
heavy punishment should be in appropriate cases. So that demonstrably
realistic punishments will be seen to have been imposed or given.

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Coming
back to this Accused. She was at the nerve centre where a severe
damage was done to the property of government. To say that she was
one of the main schemers is appropriate in a rampant kind of crime
which is fashionable in this country. That is why I commented that it
seemed to be easy to steal from government. That the Courts will
punish people who do these things must be demonstrated in the
sentences given to offenders who ought to be sentenced. I repeat that
there are a few things that stand in the stand of this Accused which
I have spoken about earlier and which I need not repeat them. One of
them was about the strong roots of the Accused. If she had made a
sworn statement in mitigation she may have been able to impress me
even further or she may have not able to do so. I have in the result
considered the submissions made by both Counsel both who have
impressed me.

Coming
back to where I begun the neatness with which these proceedings were
conducted continues to impress me. And I have said it will benefit
this Accused. It is some kind of encouragement which I want to convey
to the Director of Public Prosecutions who I commend. In a similar
way I feel encouraged that this kind of work will be with us all the
time in the future as it is a desirable thing.

I
sentenced the Accused to imprisonment for a period of Eight years
without option of a fine on each count. Three (3) of those years I
suspended for five (5) years on condition that the Accused would not
be found guilty of crime involving dishonesty. The sentences are to
run concurrently.

T.
MONAPATHI

JUDGE

12th May
2000