The matter dealt with an appeal against the decision of the magistrate to sentence the first appellant and second appellant to 15 months and ten months imprisonment respectively, for theft of diamonds. The appellants had pleaded guilty to the charge but appealed against their sentences.
The main issue for the court’s consideration was whether the trial magistrate had erred in passing the respective sentences. The court found that the court below placed too much emphasis on the value of the diamonds and the deterrent nature of the sentences to the exclusion of the personal circumstances of the appellants. Further, it was held that the magistrate did not take into account the cooperation of the appellants or the fact that they were first offenders. The court went on to hold that the magistrate made an unjustified differentiation between the appellants’ sentences.
Accordingly, the court set aside the sentences and substituted them for the payment of a fine amounting to M250 and in default of payment of the fine, imprisonment for two years.
CRI/A/29/80
IN THE HIGH COURT OF LESOTHO
In the matter of:
MOROKE LEBITSA ) Appellants
JOHANNES SHESHE)
v REX Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M. P. Mofokeng on 17th day Of October, 1980
The appellants were charged in a subordinate Court with the crime of theft of a diamond the property or in the lawful possession of Machache Diamond Works where I am informed, they are still employed. They pleaded guilty to the charge and in terms of section 235(1)(b) the prosecutor stated the evidence in his possession as follows:-
" The accused work for Machache Diamond Works. They are responsible for polishing the diamonds and cutting them. Each of the accused has a locker where he keeps the diamonds.
Accused 1 lost the key for his locker a few days ago. When accused 1 went for lunch, he had to hand over the diamonds to his foreman. On the 3.9.79 accused 1 did not hand over the diamond to his foreman and explained that the diamond was missing. The foreman reported this matter to the Police. When the Police interrogated accused 1 he led them to accused 2 where the diamond was found in the leg of a kitchen table.
L/Sergeant Makara charged both accused with the theft of the diamond. The diamond was identified by the complainant as his property. The value of the diamond is about R15,000.
2/The accused
- 2 -
The accused admitted these facts. Then their counsel addressed the Court in mitigation of sentence. Quite a number of telling factors were indicated in favour of the appellants, however, the learned magistrate remained unpersuaded and passed prison sentences of fifteen (15) and ten (10) months respectively. It is against these sentences that the appellants have appealed to this Court
It is trite law that the question of sentence is pre-eminently a matter for the trial Court. However, where the trial Court has misdirected itself or imposed an unreasonable sentence in the circumstances, the appellate tribunal will be at large and set aside the sentence and either remit the matter to the trial Court to pass sentence or do so itself.
In the present case the trial Court:
placed too much emphasis on the value of the stolen diamond and the deterrent aspect of the sentence to the total exclusion of the personal circumstances of the appellants;
did not consider sufficiently the importance of the co-operation the appellants gave to the police in the recovery of the stolen diamond;
consider that the appellants were first offenders and what is most important, that by pleading guilty and admitting the role they played they showed contrition, remorse and peni tence;
erred, in my view, in making the unjustified differentiation in regard to sente nces on the two appellants
As it was further submitted by both counsel for the appellants and the Crown, the theft of the diamond appears to have happened impulsively and it was such a foolish and clumsy act that it was doomed to failure from its inception. I entirely agree.
If the trial Court did not misdirect itself on the above-mentioned factors by totally overlooking or not
3/according them
- 3 -
according them their proper importance it would not have passed custodial sentences on the appellants. This Court, therefore, finds itself at large and it sets aside the sentences imposed by the learned magistrate. It is always a serious matter for an employee to steal from an employer. The two appellants were employed in a position of trust and it must be brought home to them that if that trust is abused then such an abuse will be heavily punished. However, in this particular matter the Court will give the appellants an option of paying a fine. For the learned magistrates sentences which have been set aside it is substituted the following:
"Each accused is to pay a fine of M250 and in default of payment of the said fine to undergo imprison-ment for a period of 2(two) years."
JUDGE 17th November, 1980
For Appellants: Mr. K. Sello For Respondent: Mr. S Mdhluli
