C of A
(CRI) NO. 10 of 2000

D.P.P.

v

Marabe

SUMMARY

Steyn, P

Grosskopf,
JA

Plewman,
JA

Criminal
Appeal - appeal by the Crown against the inadequacy of the sentence
imposed by the high Court (Maqutu J). Accused convicted
of murder by
shooting his superior police officer who was in charge of security at
a meeting addressed by the Prime Minister. Two
shots fired whilst
deceased was upright and three shots fired into his body after he had
fallen down.

Appellant
unjustly holding the deceased liable for his dismissal from the
police force. Such sense of grievance constituting an
extenuating
circumstances.

Court
finding extenuating circumstances These not specified or recorded.
Failure to do so is an irregularity. Practice of not recording

proceedings post conviction proceedings unacceptable - undertaking
given by the S.P.P. that such practice will cease forthwith.
Sentence
of10yrs imprisonment held to be startlingly inappropriate and
sentence of 15 yrs imprisonment substituted therefor.

C of A
(CRI) No.10 of 2000

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

DIRECTOR
OF PUBLIC PROSECUTION APPELLANT

AND

PETER
MOHAU MARABE RESPONDENT

HELD AT
MASERU

CORAM:Steyn,
P

Grosskopf, J.A.

Plewman, J.A.

JUDGMENT

Steyn, P.

This is
an appeal by the Crown against two sentences imposed by the High
Court.

The
respondent (the accused in the Court a quo and referred to as such
also in this judgement) was convicted on a charge of murder.
The
court found that

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extenuating
circumstances were present. The sentence imposed was one of 10 years
imprisonment. He was also convicted of a contravention
of Section 3
(2)(b) of the Internal Security (Arms and Ammunition Act). On this
charge the accused was cautioned and discharged.

The
grounds upon which the propriety of the sentences were challenged
reads as follows:

1.

"The learned judge a quo misdirected himself by imposing a
sentence which was disturbingly inappropriate as being derisory

regard being had to the totality of the evidence adduced both by the
prosecution and the defence on the two charges faced by the

Respondent.

2.

The learned judge a quo misdirected himself by failing to furnish
reasons for sentence on both counts as required by the law.

3.

The learned trial judge erred in law by meting out a sentence of a
"caution and discharge" on Count II contrary to the
Penal
provision of the Arms & Ammunition Act No.17 of 1966 (as amended)

4.

The learned judge a quo erred in law when he held: "After
hearing Mr Mosito, the court finds extenuating circumstances"

without specifying as enjoined by the law what such extenuating
circumstances were."

The facts
of the matter were largely common cause. They can be

3

summarised
as follows:

The
Respondent was a former member of the Lesotho Mounted Police Service
(L.M.P.S).

It was
established by eye-witness testimony and indeed admitted by the
accused, that he shot and killed the deceased, one Molefi
Kholokholo.
His defence to this charge was that he acted whilst in a state
described as "sane automatism". This defence
was correctly
rejected by the court a quo.

As
indicated above the Crown challenges the propriety of the sentence on
the murder charge, inter alia as being disturbingly inappropriate

regard being had to the gravity of the offence committed by the
accused.

On the
day in question, i.e the 20th of August 1999, the accused went to a
public meeting (Pitso) convened by the Prime Minister.
He was armed
with a loaded, cocked pistol. At the Pitso he saw the deceased, who
was a former senior colleague of his, where the
latter was
responsible for ensuring the security arrangements for the Prime
Minister and other dignitaries who were participating
in, or
attending at the meeting.

4

The
accused walked up behind the deceased and fired two shots at him.

The
deceased fell to the ground, at which the accused fired three more
shots at him. The evidence of one of the witnesses was that
the
accused when asked what he was doing killing a person in this way
replied as follows: "I am killing him, he caused my
expulsion
from work". He added that justice had not been done in his case.
In his evidence when testifying in his defence,
the accused admitted
that he "felt like shooting the deceased."

The
reference to the "injustice" done to him, was a reference
to the accused's dismissal from the police service of which
he had
been a member for nine years. The evidence made it clear, however,
that the deceased had played no part in the accused's
dismissal. He
had, upon enquiry from the accused, and after his dismissal, informed
him that he was powerless to assist him. The
deceased advised the
accused that he should pursue his cause through the conventional
channels and through the courts of law. This
the accused did, however
without success.

No
rational explanation for the accused's selection of the deceased as
the target upon whom he vented his grievance was tendered
in
evidence. It may be that he saw the deceased as the symbol of the
institution that had, in his mind,

5

caused
him an injustice. However that may be, the murder was, as counsel for
the Crown put it - "a public execution" carried
out in the
presence of the Prime Minister and a large number of Lesotho
citizens.

From this
brief summary of the facts it is clear that the murder committed by
the accused was a callous, premeditated killing of
an innocent
police-officer by one of his former subordinates. An aggravating
feature is the fact that the accused had been a trained
police
officer, who knew and understood the unacceptability of anyone, leave
alone an official charged with maintaining law and
order, taking the
law into his own hands and killing a fellow member of the L.P.M.S.

At the
conclusion of the hearing as to the guilt or innocence of the accused
the court convicted the appellant on the charge of
murder. The record
then reads as follows:

"After hearing Mr. Mosito counsel for the accused, the court
finds extenuating circumstances. Accused has no previous
convictions."

The
sentence of 10 years imprisonment on this count is then recorded.

6

Both in
the grounds of appeal and in his argument before us, the Director of
Public Prosecutions contended that the failure of the
court a quo to
record what the extenuating circumstances were, was an irregularity.
He accordingly contended that the court was
at large to re-consider
the sentence imposed by the Judge a quo.

In an affidavit Mr Mosito alleged that the record was incomplete,
inasmuch as it failed to record that the Judge had in fact referred

to the perceived "maltreatment" the accused had suffered
"in the hands of his employers" as an extenuating

circumstance. He also alleged that, when passing sentence, the court
had "for not less than 10 minutes ... explained to the
accused
in extenso why he was punishing him."

It
appears from an affidavit by Mr. Thetsane that he interviewed the
officer who was responsible for the transcription of the record.
The
response to the question as to whether the record correctly reflects
what occurred at this stage of the proceedings, is reflected
as
follows in the affidavit of the Director of Public Procecutions:

"In the presence of both of us (Mr. Mosito and the deponent)

7

the said recorder stated further that ordinarily such matters as
submissions and judgment on extenuation and sentence are not
mechanically recorded, unless otherwise specifically directed by the
trial court, which eventually did not take place in casu."
(Own
emphasis)

It is
obvious that such an approach to the recording of court proceedings
is patently misguided and is calculated to prejudice the
accused and
the Crown in an appeal. I will return to this matter later in this
judgment.

In my
opinion a court is obliged to record not only what the extenuating
circumstances are, but also, whether it finds that such
circumstances
are or are not present and, by what process of reasoning it arrived
at its decision.

Mr.
Mosito pointed out that Section 296 (1) of the Criminal Procedure and
Evidence Act 1981 provides that the court convicting a
person of
murder "shall state whether in its opinion there are such
circumstances, .... (and) (then) it may specify them."
(my
underlining). He also pointed out that the statute provides that a
failure to comply with the requirements of sub-section (1)
shall not
affect the validity of the verdict or any sentence imposed as a
result thereof." He went on

8

to submit
that for these reasons a trial judge is in law not bound to specify
extenuating circumstances, but rather that he is permitted
or
empowered by law to do so.

Mr
Thetsane in a well-reasoned argument referred us to several judgments
in this court as support for his proposition that there
was an
obligation on the trial court when it makes a finding that there are
extenuating circumstances, to specify and to record
these. He
referred us inter alia to the following decisions of this court.

In
Matsoai v Rex 1967 -1970 L.L.R. 70 at 75 (D) the court, per Maisels
J.A., said:

"......... we are bound to say that in our opinion when
extenuating circumstances are found, it is advisable that these
should
be specified. The nature of the extenuating circumstances may
have a bearing on the proper sentence to be imposed and, if for that

reason alone, the appeal court should have the benefit of the trial
court's reasons for finding extenuating circumstances. Moreover
on
grounds of public policy it seems desirable that the public should be
informed what the extenuating circumstances were".
See also Mona
and Another v. Rex 1985 -1989 LAC 364 and Molata v Rex 1985 - 1989
LAC 229. See also S v Ngoma 1984 (3) S.A. 666
(A) and S v. Masuku
1985 (3) S.A. 908 (A) at 912 for

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the South African practice in this regard.

The
findings by the trial court concerning the presence or absence of
extenuating circumstances are almost invariably premised on
findings
of fact. It is clear law that factual findings must be recorded. See
in this context the long line of decisions in the
South African Court
of Appeal commencing with the decision in Rex v Majerero and Others
1948 (3) S.A. 1032 (A). This decision was
followed in R v van der
Walt 1952 (4) SA. 382 (A) and in S v Immelman 1978 (3) 726 (A) at 729
(C).

In the
latter judgment one of the compelling reasons for a court to state
its findings is expressed by Corbett J.A. (as he then
was) in the
following terms at the page cited:

"The absence of such reasons may operate unfairly, as against
both the accused person and the State. One of the various problems

which may be occasioned in the Court of Appeal by the absence of
reasons is that in a case where there has been a plea of guilty
but
evidence has been led, there may be no indication as to how the

10

Court resolved issues of fact thrown up by the evidence or on what
factual basis the Court approached the question of sentence."

For these
reasons I am of the opinion that, irrespective of the meaning to be
ascribed the provisions of the Criminal Procedure
and Evidence Act,
the failure of a court to specify what the extenuating circumstances
are when it so finds, is an irregularity.

However
as indicated above, Mr. Mosito has stated under oath that the trial
court did in fact state that the alleged " maltreatment
that the
accused has managed to establish in the hands of his employer"
was a factor that constituted an extenuating circumstance.
This
statement has not been challenged and there is in my view no reason
why we should not accept Mr. Mosito's evidence in this
regard.

The
propriety of the sentence must therefore be determined only on the
ground of appeal No.1 cited above, i.e. that the sentence
was
disturbingly in -appropriate having regard to the totality of the
evidence.

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Even if
due allowance is made for the fact that the appellant believed that
he had been unjustly treated by those in command of
the L.M.P.S., his
crime falls into the most serious category of murder. He had a
settled determination and subjective intention
to kill the deceased
as is evidenced by his firing three shots into the prostrate body of
the deceased. He was a police officer
himself and he killed a fellow
police officer who had, as a matter of fact, done him no harm.

I am of
the opinion that the factors outlined above outweigh such extenuation
as would be attributable to the accused's belief that
he had been
unjustly treated. In my view a sentence of 10 years imprisonment is
clearly inadequate and indeed startlingly inappropriate.

Mr.
Thetsane referred to several decisions of this court in which
sentences passed in similar cases were increased on appeal. See
in
this regard Phaloane v Rex 1980 -1984 LAC 72 and Motlatsi v The
Director of Public Prosecutions C of A (CRI) No.6/97 (unreported)

where Gauntlett J.A. says the following at p.6 of the judgment.

"Any sentence, it is well-established, must balance the personal
circumstances of an accused, the nature of the

12

crime and the interests of the community. It is not evidenced to me
that the trial court did this. Even allowing for each of the
personal
factors set out above, in my judgment the brutality of the offence
and the need both to protect the community and to give
effect to its
repugnance against such abuse of power as we have here, require a far
heavier sentence. Lesotho's Constitution entrenches
(in s.5) the
inherent right to life of every human being. It is founded on the
principle of legality. The depredations of heavily
armed servants of
the State on defenceless citizens is inimical to both, and must be
dealt with severely."

A
sentence of 10 years imprisonment was accordingly increased to 15
years.

It is my
view that, after giving due weight to both the mitigating and
extenuating circumstances, also in this case a sentence of
15 years
imprisonment would be appropriate on count 1.

13

It was
common cause that the sentence of a caution and discharge passed on
Count 2 was unlawful. The offence committed was however
one of
negligence -the accused had failed to renew the licence of his
firearm. He is unable to pay a fine, and it was suggested
that any
period of imprisonment imposed should run concurrently with the
sentence imposed on count 1.

On Count
2 the accused is sentenced to imprisonment for a period of 6 months.
This sentence is to run concurrently with the sentence
on count 1.

In
summary the court orders as follows:

The
appeal by the Crown against the sentences imposed by Maqutu J is
upheld. The sentence of 10 years imprisonment on count 1 is
set
aside. In its place a sentence of 15 years is imposed.

On Count
2 the appeal is upheld and the sentence is set aside. In its place a
sentence of 6 months imprisonment is upheld. This
sentence is to run
concurrently with the sentence imposed on count 1.

In regard
to the practice of not recording proceedings post conviction, the

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Crown has
through the offices of the appellant undertaken that this practice
will cease forthwith and that the findings, reasons
and judgment of
the Court on issues post conviction will also be recorded. The court
trusts that the Director of Public Prosecutions
will ensure that all
necessary steps are taken to achieve this objective without delay.

J.H.STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree

F.H.
GROSSKOPF

JUDGE OF
APPEAL

I agree

C.PLEWMAN

JUDGE OF
APPEAL

Delivered
in open Court at Maseru this 12th day of October, 2001.

For Crown
- Mr. Thetsane

For
Respondent - Mr. Mosito