CRI/A/54/87

In THE
HIGH COURT OF LESOTHO

In the
Appeal of:-

KHOTO
RAKOBUOA Appellant

Vs

REX
Respondent

JUDGMENT

Delivered
by the Honourable Acting Mr. Justice M. Lehotola on the 30th day of
May; 1988

The
appellant has appealed to this Court against a sentence imposed on
him by the learned magistrate Mokhotlong on 10th February,
1987.

Appellant
pleaded guilty to the two charges preferred against him. These
consisted of (a) contravening section 3 (2) of the Internal
Security
(Arms and Ammunition) Act No. 17 of 1966 and (b) attempted murder.

On count
one appellant was sentenced to pay a fine of M120-00 or in default
thereof to serve a prison term of six months. On count
two he was
sentenced to two years' imprisonment. It was ordered further that the
sentences in both these counts are to run concurrently.

The basis
of the appeal is two-pronged. First, that the sentence is excessive
and creates a sense of shock regard being

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had to
the nature of the crime and the fact that appellant was a first
offender. Secondly that the learned magistrate erred in that
before
imposing the sentence he did not enquire and take into consideration
the mitigating factors in favour of Appellant. It was
argued that had
he borne in mind these factors the learned magistrate would not have
failed to appreciate circumstances which led
to the commission of the
offence of attempted murder and the disadvantage that appellant was
labouring under at trial as an unrepresented
litigant.

The first
ground of appeal is partly self-defeating to the extent that it seeks
to make light of the offence of attempted murder.
Such an offence is
on ail accounts a serious offence. The record shows on page two that
complainant ran away when he saw appellant
hurriedly coming at him.
Appellant was on a mission looking for his missing stock. Appellant
chased after him. Then complainant
started collecting stones and
throwing them at appellant. The latter pointed his firearm at the
complainant and shot him on the
leg whereupon complainant once more
fled but was caught by another bullet on the right buttock.

Further,
Mr. Qhomane for the Crown submitted that the more fact that a man is
a first offender does not entitle him to be treated
leniently by the
courts. I agree with this submission and 1 think it fits in well with
circumstances of this case. Moreover the
learned magistrate made
reference to it thus clearly showing he took it into account in
imposing sentence.

It was
argued that appellant had some reason to shoot while it seems in the
learned magistrate's view he had none. But reference
to the record
shows that in his judgment the learned magistrate

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stated
that appellant did not have a reaonsable excuse for shooting. His
evaluation of the relevant factors in the evidence before
him cannot
be faulted because while conceding that at some stage or another
complainant seemed to pose some danger to appellant
such danger was
not such as would warrant use of the firearm. It has to also be borne
in mind that appellant was not alone. He
was in company of others
whose efforts were directed at questioning the complainant about
their missing stock. But from the manner
in which they rushed at him
he took fright and fled. What reasonable use could have been made of
the firearm against complainant
in such circumstances leaving aside
the fact that even after he had sustained the first injury with a
bullet he was fetched some
more on the buttock - part of the body
which clearly suggests complainant was facing away from appellant and
his company?

It was
further argued that as borne out in his judgment the learned
magistrate was carried away by emotion with the result that
he
indulged in speculation about what would have happened to the
complainant if a more vital organ of his body was hit than the
leg
and buttock. It was submitted that if he had not indulged in such
speculation the sentence imposed might have been much lighter.

My view
is that it is only natural for a judicial officer faced with a case
of this nature to fear for the worst even if he does
not reflect his
fears on record. Regard being had to the sentence imposed and the
fact that the order is that sentences are to
run concurrently I do
not think that even though he reflected his fears on record the
sentence exceeds the gravity of the offence.
I do appreciate that
injuries may as in this case be light and not dangerous to life as
where a cannon ball singes one's ear. But
the

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real and
possible danger to life occasioned by reckless and deliberate use of
firearms cannot be ignored.

The only
thing that has caused me some unease is the order that sentences
should run concurrently where under one count there is
an option of a
fine. If appellant has paid the fine imposed instead of serving the
six months' jail sentence it appears to me that
his effort would be
worthless because the six months would be subsumed in the two years
that he would have to serve. In this regard
the option of a fine
imposed is illusory. It is not proper to impose a sentence or give a
judgment that is illusory.

Section 301 of the C P & E Act 1981 (1) (a) says when

"a person is convicted of two or more different offences; or (b)
a person under sentence or undergoing punishment for one
offence is
convicted of another offence,

the court may sentence him to such several punishment for such
offences or for such last offence, as the case may be, as the court

is competent to impose.

" Subsection (2) provides that:

"The punishment under this section, when consisting of
imprisonment shall commence the one after the expiration.....-----of

the other, in such order as the court may direct unless the court
directs that such punishments shall run concurrently."

It is
clear that what this section provides is that if punishments are to
run concurrently it should be punishments consisting of
imprisonment,
not partly fines and partly terms of imprisonment.

Regard
may also be had to the observation of Rooney J in Mohapi and others
vs. Rex 1981 (1) LLR at 7 et seg that

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"I do not know how the practice arose of taking more than one
count together for purposes of sentences. There is nothing in
the
Criminal Procedure and Evidence Proclamation which authorises the
practice and a reading of Section 295 {now 301 of the CP&E
Act
1981) suggests that the proper course when a person is convicted at
one trial of two or more different offences is for the
court to
sentence him to such several punish­ments for such offences as it
is competent to impose. It is clearly inappropriate
to lump toge­ther
different offences for the purposes of sentences, when the type of
punishment or the maximum punishment which
may be imposed for one
offence differs from another."

See
Review Order No 22/87 Rex vs Makiba (unreported) at 3 and 4. See also
Review Order No. 4/87 Rex vs Poll (unreported) where Kheola
A.C.J. as
he then was said at page 2

"It is abundantly clear.........that it is only in respect of
sentences of imprisonment that the court may order that the
sentences
must run concurrently."

In Review
Order 24/87 R. vs Sekhela and another (unreported) at 2 this court
observed that :

"A quick look at South African case law throughout ages
abundantly shows illogical consequences which flow from adopting the

procedure followed by the court below. Hence I am of the view that it
should not be adopted. See Rex vs Setibe 1934 AD 56, R. vs
Sitole
1955 (1) P.H. H84 (N) and R. vs Keizer 1955 (4) S.A. 204,"

In Setibe above at page 58 Gardiner A.J.A. said:

"The magistrate directed the alternative periods of imprisonment
to run concurrently and in that he was quite justified. As
to the
fine, however, it is a little difficult to know what the magistrate
had in mind because the section does not speak of fines,
and, even
apart from the section, fines can hardly be conceived of as 'running
concurrently'. The effect, however, of the deletion
of the words 'to
run concurrently1 is to double the period of imprisonment imposed by
the magistrate ....." (my underlining).

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It seems
to me that in count 1 the magistrate intended that appellant should
not serve the six months prison term if he paid the
fine as an
alternative penalty. But because it was incompetent to maka such fine
run concurrently with the two year term of imprisonment
in count 2,
it is fitting to delete the words to run concurrently". But
because this will have the effect of extending the
prison term by six
months whereas the magistrate intended appellant to serve only two
years the sentence in count 2 is reduced
by six months. Mindful of
the fact that appellant pleaded guilty and did not waste the time of
the court the order made by the.
court below on sentence is set aside
and substituted by the following :-

In count
1 accused is sentenced to pay a fine of M120 or in default serve six
months' imprisonment,

In Count
II accused is sentenced to one and half years imprisonment.

N.B.
Exhibit 1 is forfieted to the Crown.

M.L.
LEHOHLA

ACTING
JUDGE.

28th May,
1988.

For the
Appellant - In person

For the
Respondent - Mr. Qhomane