CR1\A\17\94

IN THE
HIGH COURT OP LESOTHO

In the
Appeal of :

TELLO
TS'OKOLO Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohle on the 3rd day of February. 1995

This is a
criminal appeal in which Tello Ts'okolo is appealing against sentence
imposed by the learned Magistrate of Class II in
1990. The case
involved theft of eight goats which was the property of and in the
lawful possession of one 'Maletete Nts'onyane.

It has
not been argued that there is irregularity regarding conviction as
the appeal relates to sentence only. The Court has heard
arguments
from both Counsel; and it was contented for the appellant that the
learned Magistrate has misdirected herself in law
by imposing a
sentence of five years' imprisonment when she has no power to impose
the same when the crime was committed prior
to the 14th July 1988.
This ground of appeal has since been resiled from; and properly so
because apart from the fact that the
record

2

doesn't
show that the Magistrate was acting in pursuance of the minimum
penalties order she was entitled in her enhanced jurisdiction
insofar
as stocktheft is concerned, to impose a maximum or five years'
imprisonment. Then what remained to argue on behalf of the
appellant
was whether the learned Magistrate in imposing this maximum penalty
she had exercised her discretion judicially regard
being had to the
fact that the appellant was the first offender; next that the
appellant had restored a good portion of the booty
i.e. six sheep out
of eight; and had made compensation in respect of the two which were
still missing by paying a beast.

I will
assume that this beast was received by the complainant because this
has been borne out in the evidence by the Crown in the
court below
and has been also contented by one of the appellant's witnesses and
this is on record. True enough as was contented
by the Crown the fact
that a man is a first offender doesn't necessarily mean that he is
going to be treated leniently, and this
is the law. There is
abundance of authority in that regard.

It was
also contented by the Crown that the tact that a man has restored
what he has stolen doesn't make him a leaser thief than
he in fact
is; and one can imagine that this sort of situation arises time and
again when there is not much that an accused can
do when he is found
in an embarrassing situation in which the booty is in his hands and
it doesn't belong to him. The only option
he has really is to return
the property. However, the Court having

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listened
to both sides felt it not right to treat each of the matters advanced
by the Crown individually but to adopt the proper
approach which is
to look at them globally or collectively.

An
important aspect relates to the tact that the learned Magistrate has
not stated why she has imposed this rather stiff sentence
which
(otherwise if she had stated her reasons perhaps) this Court would
even if it didn't agree with the sentence she imposed
would have
found something in the reasons to refrain trom interfering. But when
no reasons have been supplied the appellate court
is at large to try
and have a second look at the tacts which have not been laid bare. In
the circumstances as I have stated because
factors have been argued
here which clearly show that it taken cumulatively then would reduce
the sentence imposed in the court
below this Court is obliged
theretore to take them onto account. I have proceeded to do so. In
the result the sentence of five
years' imprisonment is set aside and
in its place that of two and half years is imposed.

JUDGE

For
Appellant : Mr. Teele

For
Respondent: Mr.Qhomane