CRI/S/7/89

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

LEJONE
PASCAL IS KHETHA

Before
the Honourable the Chief Justice Mr Justice B. P. Cullinan on the
28th day of April 1989

For the
Crown : Mr S. P. Sakoane, Crown Counsel

For the
Accused : Mr W. C. M. Maqutu

JUDGMENT

Cases
referred to :

1. R v
   Lebuajoang Rankhebe CR1/S/13/86 (Unreported)

   
   

2. R v
   Jankie and Others CRI/REV/75 and 81/88 (Unreported)

   
   

The
accused was charged before the Subordinate Court of the First Class
for the Maseru District with the rape of a ten-year-old
girl.

The
accused pleaded guilty. He agreed with a statement of facts which
revealed a clear prima facie case The accused was a neighbour,
on
friendly terms with the child's father, so that there is every
likelihood that he was aware of the child's age, that is, as
being
less than 12 years of age, there being a presumption of non-consent
at such an age: see the case of R v Lebuajoang Rankhebe
(1 ). In any
event, the statement of facts clearly revealed that the little girl
did not consent to the gross assault The

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accused
raped the child twice. She was medically examined the following day.
The doctor who conducted the medical examination was
of the opinion
that there was "no strong evidence of the use of force". I
must observe that that opinion is completely
contrary to the recorded
details of the physical examination conducted by the doctor. The
statement of facts leaves one in no doubt
that force was used.

The
learned trial Magistrate delivered a reasoned judgment. Where an
accused pleads guilty and agrees with a statement of facts
revealing
a prima facie case, there is no need for a Magistrate to deliver a
reasoned judgment as such, but simply to enter a finding
and
conviction. 1 imagine that the learned trial Magistrate delivered the
judgment in the present case, in view of the complications
in the
inter-relationship between the two offences, namely rape and
defilement. Having summarized the statement of facts the learned

trial Magistrate recorded as follows:

"Legally a qirl under sixteen years of age has no consent to
sexual intercourse. I have therefore got to the conclusion that
the
Crown has proved that the accused is guilty of contravening section
3(1) of the Proclamation 14 of 1949. Women and Girls Protection

Proclamation.

I
considered the provisions of section 187(1) (e ) that;

"(1) Any person charged with rape may be found guilty of...(e)
the statutory offence of unlawful carnal knowledge of .....
a girl

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of or under a specified age;"

Verdict : Guilty of contravening section 3(1) of Proclamation
14 of 1949. Women and Girls protection Proclamation".

When it
came to punishment, however, the learned trial Magistrate observed
that the offence of rape attracted a minimum sentence
of five years'
imprisonment, but that the accused had been "convicted under a
more serious offence in that it is unlawful
carnal connection with
defenceless young girls". The learned trial Magistrate then
referred in careful detail to the case
R v Jankie and Anor (2)
wherein this Court advocated a "starting point" of a
punishment of five years' imprisonment in
dealing with the offence of
rape, and indeed that Magistrates should commit to the High Court for
sentence where their sentencing
powers were inadequate. The learned
trial Magistrate then very properly and carefully set out the reasons
for committal thus:

"I am of the opinion that six years' imprisonment is inadequate
punishment for the accused, as that is my maximum imprisonment

jurisdiction. I took into consideration that the accused was a first
offender, a married man with three children; that he is a
breadwinner
for his family. I therefore ask the High Court with its inherent
powers to give this accused a suitable punishment
if the conviction
is in accordance with real and substantial justice".

There
seems to be some confusion here and it proves convenient to refer the
learned trial Magistrate to the

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Rankhebe
(1) case. Statutory defilement is not more serious than rape. The
maximum punishment for the former is six years's imprisonment:
for
the latter offence it is death. Having convicted the accused of
defilement,the maximum punishment therefore was six years'

imprisonment. That was within the learned trial Magistrate's
jurisdiction and I do not appreciate therefore why the accused was

committed to the High Court.

For that
matter, I do not understand why the learned trial Magistrate entered
a conviction for a lesser offence. The accused was
clearly guilty of
rape. The question now arises as to whether this Court can substitute
a conviction for the offence charged. The
learned Counsel for the
accused Mr. Maqutu submits that the Court has no such power. The
learned Crown Counsel Mr. Sakoane concedes
that such is the case. I
am inclined to agree. The Court has power, of. course, to substitute
a conviction for a lesser offence.
But I doubt if it can substite a
conviction for a more serious offence, even if the accused was
originally charged therewith. The
position is, therefore, that the
accused stands convicted of the statutory offence of defilement, for
which the maximum punishment
is one of six years' imprisonment.

Mr.
Maqutu submits that the accused was very drunk. The offence was
committed not once, but twice and there was a good deal of
premeditation in the accused's actions. The learned trial Magistrate
fully addressed herself to the question of drunkenness,and
I do not
see what I can add to what she said, I take into account, however,
the fact that

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the
accused is a first offender. Nonetheless this is a bad case of
defilement, as Mr. Sakoane submits. The child was but ten years
of
age, intercourse took place not once but twice. The accused was
fortunate that he was not convicted of rape. Nonetheless I am

confined by the restrictions of section 3 of the Women and Girls
Protection Proclamation. I take into account in particular that
the
accused has been in prison for some five months. In all the
circumstances I sentence him to imprisonment for four (4) years
with
effect from the date of this order.

Delivered
at Maseru This 28th day of April, 1989.

(B. P.
CULLINAN)

CHIEF
JUSTICE