CRI/T/54/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

REX

v

VICTOR
MAKEKA LEFA MOLOI MOKHETHI NKHOMO

SENTENCE

Delivered
by the Honourable Mr. Justice T. Monapathi on the 4th day of May 1995

My
Assessors have told me that this is one of the rare cases in which
this aspect of sentencing has been extensively debated. One
of the
reasons why there had to be such a debate was the fact that Counsels
were very forthcoming in bringing about aspects on
sentencing which I
have found very useful. Indeed even this morning there has been a lot
of submissions which I find very helpful
and which I will consider in
this judgment even though done ex­tempore.

Indeed
this aspect of sentencing is a very problematic one in all the
criminal proceedings because what we do as

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Judges is
not just to mete out a sentence, but we must think about it and give
reasons for it. Because we have to consider the accused
person as an
individual. You also look at the crime and also look at the interests
of the society and the interests of the general
public, because their
interest is that the people who have offended against the law must be
punished. In the crime itself you look
at the seriousness of the
crime. The more serious it is the more the community expect the Court
to demonstrate. When one looks
at the accused himself one looks at
the circumstances of his family, his children, his work and so forth.
That you must consider
because it is out of these things that one may
then be able to reason out how merciful one can be as a Court. These
are mitigating
factors.

This two
Accused people have got different ages. Accused 2 is a fifty two
years old man. He has got so many responsibilities toward
his
children, the number of which has been given at about seven. We have
already discussed the fact that if he was in regular employment
he
would be entitled to retire next year or this year, and would also
have his benefits. Although some of his children have reached

majority but there are still a few he ought to maintain. Accused 1 is
a forty years old man, he is not a youth. He is a mature
person. He
has got dependents. He has had problems to do with his employment and
his wife and

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his
family. These I have considered. Some of these aspect, I have
commented about in my judgment. Some of this he has commented
about
in his evidence in mitigation. This I have taken cognizance of.

These
crimes with which these accused persons are charged with are serious
crimes. They are sophisticated crimes. They are what
is called white
collar crimes. This I have considered. And I must concede that it has
worried me. It is such a crime that the Courts
do not look at with
pleasure. These accused persons have held responsible positions at
work. Both of them have been policemen and
prosecutors. They held
responsible positions in the society. They ought to set examples.
This I have considered in that: "Nothing
upholds the law as the
punishment of persons whose rank is as great as their crimes." -
Cardinal Richeleau. These kind of
crimes with which the accused are
charged and the types of positions that these accused person held
attract the eyes of the community.
That is, the community wants to
see what the Courts will do when seized with cases such as this one.
So that the aspect of what
the Courts do is very important.

I have
considered that the roles of the two accused persons have not been
the same. One has contributed more, one has contributed
less. This is
reflected in the fact

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that with
respect to A 2 I found him guilty of forgery and uttering, whereas
with A1 I found him guilty of uttering. I am persuaded
by the
judgment of P. K. MAHASE CRI/T/75/89, 7/07/92 (Unreported) that this
different charges that is forgery and uttering ought
to be dealt with
separately by way of sentence. There ought to be a sentence for
forgery and there ought to be a sentence for uttering.
But the two
sentences can be considered as one. See generally the illuminating
remarks of Lehohla J in that Mahase's case on sentence
at pages
41-52.

Indeed
both these accused are first offenders. This is a situation in which
Mr. Sethathi has stated that if possible, such first
offenders need
not be imprisoned. It is because a first offender merely by a fact of
being a first offender appears not to be a
person who is prone to
offending against the law. Because for a man to be convicted may have
been caused by so many things. May
be caused by poverty or pressure
of his equals or friends. Or it may purely be of accidental
circumstances. May be a result of
some provocation. But then
sometimes it is a product of sheer greed; where there is absolutely
no need for an accused person to
have been involved in a criminal
enterprise. But the policy of the Courts not to send people to prison
is based on the realization
that at prison these accused persons will
meet hardened people. And

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people
who are likely to change the Accused's good ways, and make them
hardened persons, when it is not necessary. It is the policy
of the
Courts in proper caces not to encourage that always people should be
sent to prison. Prisons are places of punishment.

Indeed
the modern trend is to say, if this man has gone to prison he must be
rehabilitated. But then, prison serves as a deterrent,
because we are
still settled in our ways that if that man is sent to prison he will
serve his punishment and he will improve his
ways. Indeed in some
countries there are some alternatives to prison. There are these
things called community services, and in
those countries, this
different types of punishments are legislated for. So that when you
sent a person to prison as a Court you
are actually demonstrating to
the community that Courts will punish offenders, you give them an
assurance that Courts will not
standby when there is criminality
around. And indeed you are not neglecting the man himself, because
you are thinking that he is
going to be punished and he will improve
his ways.

So that
coming back to this question of an accused persons being a first
offenders. Counsel has conceded that one of the considerations

whether or not to send a person to prison depends on the seriousness
of the offence. So

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that in
my mind that is one of those things that I have spoken when I spoke
about the Accused and the crime. These accused persons
have committed
a serious crime. This Court cannot close its eyes to that. Indeed I
suppose in their favour, the prejudice to the
complainant was
potential. I mean their intention was to get hold of the funds. This
they did not succeed in doing. But the law
strictly speaking does not
view that fact as being of lesser consequence. No, the Court does not
say you have committed a lesser
crime. But the Court can safely say,
just for the purpose of sentence, this ought to be considered. I am
not persuaded by one of
the judgment that this lawyers have spoken
about, that because these people are white collar criminals they
ought to be punished
less. That judgment has completely not persuaded
me. Because I would say if that is to consider it would amount to
class justice.
The lesser man in the society deserves as much and the
same as the highest man, because there must be equality before the
law.

I do
agree that generally speaking these two accused stand to lose a lot
of benefits. Some of the benefits such as pensions. If
this occurs,
it is unfortunate; because the Courts do not intend to mete out more
punishment than is necessary. Where a man has
had a case hanging over
his head, and where it takes a long time to hand down judgment,

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he
anxiously expects that there will be justice meaning that there will
be finality to the charge. We cannot ignore that, that this
matter
has taken a long time hanging over the Accused's heads. This we must
consider. Indeed Mr. Sethathi has made very good submissions

concerning this aspect of a fine or a suspended imprisonment or
suspended part fine. Indeed he has spoken very well about where

certain sentences or part of those sentences ought to be suspended. I
have found that much as suspending a whole sentence can be
beneficial
and lenient, sometimes it can be irresponsible for the Court to do
so. I have also found that imposing an alternative
or option of a
fine is equally lenient, where a sentence of imprisonment with an
option of a fine is imposed. That in itself shows
leniency. Where
having imposed such sentence you also suspend part of it is even more
lenient. The aspect of whether these accused
persons are able to
afford fines when imposed need not unduly excercise the Court's mind.
It has not therefore prevented me from
imposing a fine in the
sentences, because I have decided to give these two accused persons
very lenient sentences.

One must
understand that in dealing with social problems such as this one you
cannot always be as accurate as a mathematician would
be. The law
operates by way of estimating human behaviour. The law deals with
estimates.

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Human
behaviour is never accurate. You have to make assessments made on
pure estimates. I have considered some of the judgments
referred to
by Counsel, because this aspect of sentence was strongly debated,
including the elegant heads of argument which Mr.
Sethathi has
submitted this morning, and some of the concessions the Crown Counsel
has made, all in the assistance of this Court.
I found this exercise
extremely helpful.

I have
underlined this aspect that have been committed serious offences for
which the accused have been found guilty. Accused 1
Mr. Moloi has
been found guilty of uttering. I will send him to three years
imprisonment. I give him an option of a fine in the
sum of Three
Thousand Maluti (M3,000.00). Half of this I suspend. I have found the
Second Accused guilty of forgery and uttering.
For this I sentence
him to four years imprisonment. However, I give him an option of a
fine. That he may pay Four Thousand Maluti
(M4,000.00). The second
crime of uttering, I sentence him to four years imprisonment. I give
him an option of a fine, that he may
pay a fine of Four Thousand
Maloti (M4,000.00). For the purpose of sentence these must serve as
one. Half of this I suspend. The
sentences are very lenient.

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T.
MONAPATHI

JUDGE

For the
Crown ; Mr. Sakoane

For the
Accused : Mr. Sethathi

Gentlemen
Assessors : T. Moletsane and G. Motsamai