CRI/A/62/88

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

PAKI
MPHUTLANE Appellant

V

REX Respondent

Delivered
by the Hon. Mr. Justice M.L. Lehohla

In this
matter the appellant has very properly withdrawn his appeal against
conviction. He however proceeds with the appeal against
sentence
only. The ground he is relying on is that the learned magistrate
didn't take into account his personal circumstances.
Indeed this
complaint is substantiated by absence of any reference to the
appellant's personal circumstances from the record or
judgment
itself.

It would
appear in the main that it wasn't established how much he earns per
month or any such things with a view to finding what
suitable
sentence could be imposed. The accused was convicted of an assault
with intent to do grievous bodily harm on his wife,
committed prior
to the coming into effect of the minimum penalties' order of 1988.
Medical evidence showed that the assault was
savage. Hence the court
below can scarcely be faulted for adopting the attitude that severe
sentence was deserving. It has, of
course, been repeatedly said that
the fact that a man is a first offender doesn't per se entitle

2

him to a
light treatment. But it has also, on the other hand, been stated on a
number of times that sentencing is a different matter
altogether from
the conduct of the trial proceedings preceding it, and; in that
regard therefore the court goes into a completely
new procedure; and
one of the things to be considered for purposes of sentencing is the
accused's personnal circumstances. I call
in mind the appeal of
Phohlo vs Rex CRI/A/22/86 (unreported) among others where this was
considered by this Court and on the basis
of that consideration, I
feel that this Court is at large to investigate even at this stage
the appellant's personnal circumstances.

I have
been told from the bar that he makes about M600 per month. I have
taken into consideration the fact that this man is a first
offender
and therefore is entitled to a second chance to reform. It is also
worth mentioning that, giving a man chance has recently
been
popula­rised as is catching on as is the case with regard to our
neighbouring starts In this view therefore the sentence
imposed by
the learned magistrate is set aside and in its place is substituted
by one of M300 or 6 months' imprisonment.

JUDGE.

1st
September, 1989.

For
Appellant : Mr. Hlaoli

For Crown
: Mr. Mokhobo.