C OF A
(CRT) NO.S OF 1995

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

NOZABALESE
'MOSO

v

REX

HELD AT:

MASERU

CORAM:

STEYN JA,

LEON JA,

v.d.
HEEVER A.J.A.

JUDGMENT

STEYN JA:

Appellant
was convicted in the High Court on a charge of murder. The Court
imposed upon her a sentence which reads as follows:

"The sentence of the Court is that the accused is sentenced to
detention in juvenile training

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centre subject to Prisons Proclamation 30 of 1957."

She
appeals only against the sentence. Counsel for the Crown had in his
heads of argument supported the sentence imposed, but when
questioned
by the Court con­ceded that a custodial sentence was
inappropriate in all the circumstances. This certainly is also
our
view for the reasons set out below.

Appellant
was 14 years old when she fell pregnant. She killed her child a day
after her 16th birthday. Appellant had a series of
traumatic
experiences. Apart from the fact that she had an unwanted pregnancy
at the age of 14 years, she was abandoned by her
lover who declined
to support her or the child. Members of the community interviewed by
the probation officer, confirmed that appellant
was abused, both
physically and mentally by her grandmother in whose care she was. He
goes on to say:

"She was at times even denied food for herself and her baby.
They further reported that the client was pushed to commit this

offence because of her grandmother's unforgiving attitude towards her
and the baby. They also reported

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that the client is not a delinquent although she has committed a
serious offence."

In his
remarks the Probation Officer summarised his findings as follows:

1. The
   client is not regarded as a delinquent by all the interviewees but
   her grand­mother.

   
   

2. From
   what some of the interviewees and the client said it is clear that
   the client who is of tender age, lived under very stress­ful

   conditions of which the incident that led to the offence was the
   last straw.

   
   

3. The
   client lacked parental protection against her grandmother's
   aggression towards her and the baby.

   
   

4. She
   is sorry and upset about what she has done.

   
   

5. The
   client is aware of how she has upset her mother, the community and
   how she has

   
   

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violated the law. ,

6. Her
   mother has returned back home and she will live with her at Ha -
   Lekete, Quthing."

   
   

He then
recommends as follows:

"In accordance with the above information it is clear that the
client is not a delinquent. She is still of very tender age
and needs
to be given a second chance to build up her life and start afresh in
the community. She is not a difficult person to
deal with and she
could benefit from community based treatment.

Her mother is capable of controlling her. This is the first offence
she has committed. This family is acceptable in the community.

I would therefore recommend that the client be placed under Probation
Order with supervision by the Probation Officer for a specified

period."

In his
judgment on extenuating circumstances and

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preceding sentence, the Judge a quo says the following:

"In view of accused's age and hence her immatu­rity and her
unhappy upbringing there are, in this case extenuating circumstances

and counsel was spared the trouble of addressing the court on this
question.

The court is much indebted especially to the Probation Officer who
presented a well prepared and reasoned document regarding
circum­stances
of the accused and what might be best for her. The
invaluable arguments in mitigation of sentence by both counsel were
also seriously
considered but nothing said has changed this court's
mind that the accused, circumstanced as she is, requires strong,
effective
and hopefully enlightened supervision to place her on
course to take her rightful place in society as a responsible and
caring
mother."

It is, of
course, perfectly proper for a Judge to depart from the
recommendations of a Probation Officer. In view, however, of the

carefully reasoned approach and well motivated recommendations we
have here, one would have expected the trial Judge to have recorded

why he felt that a custodial rather than a non-custodial form of
punishment was necessary. It must always be borne in mind that
a
non-custodial sentence can contain punitive elements. Moreover, in
the present case it would be possible to structure the sentence
in
such a manner that deterrent elements can be built into it, and that
can give evidence of the Court's strong disapproval of
her conduct

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whilst
avoiding the risk of a non-delinquent being crimi­nalised by her
exposure to genuine juvenile delinquents.

Whilst
the Judge not only mentions but praises the Probation Officer's
report, his failure to give a single reason in motivation
of his
departure from its cogent and prima facie sensible recommendations,
suggests that the sentence was arbitrary. We were informed
by Counsel
for the Appellant that the Appellant had been released and we were
also given the assurance in Court by the Probation
Officer that
regular supervision of the Appellant would take place.

With
reliance on the report of the Probation Officer and on the assumption
that the supervision of the Appel­lant will be conscientiously

implemented, we conclude that an appropriate sentence would be the
following:

The
sentence in this case is postponed for 3 years from the date of her
convict ion i.e. the 7th August, 1995, on the following
conditions:

1. That
   she subjects herself to the supervi­sion and control of a duly
   appointed proba­tion officer.

   
   

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2. That
   she complies fully with all reasonable instructions given by the
   said probation officer, and

   
   

3. that
   she does not commit any offence in­volving violence during the
   period of the postponement.

   
   

The
Respondent's right to indict the appellant before the High Court for
purposes of the imposition of sentence is specifically
reserved.
However, should it fall to do so either during the period of three
years aforesaid, or immediately thereafter, the appellant
will be
discharged from sentence for this offence.

The
conviction is confirmed. The appeal against sentence succeeds. The
sentence imposed by the Court a quo is set aside. In place
thereof,
the sentence set out above is imposed.

J.H.
STEYN

I agree

R. LEON

JUDGE OF
APPEAL

I agree

van den
HEEVER

ACTING
JUDGE OF APPEAL

Delivered
this 19th day of January, 1996.