C of A
(CRI) No. 3 of 2005

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

KALI
LENTSO APPELLANT

and

REX
RESPONDENT

Held at
Maseru on the 7th of October 2005

CORAM:
Steyn, P

Kumleben, JA

Peete, J

JUDGMENT

Summary

Appellant
was convicted in the High Court on one count of murder, one of
attempted murder and one count of assault - sentenced to
an effective
period of 30 years' imprisonment, - Appeal noted both against
conviction and sentence - appellant's identity as the
killer proved
conclusively both by eye-witness and ballistic evidence -

convictions
confirmed - sentence startlingly inappropriate in view of both the
circumstances in which the crime was committed and
because of
personal circumstances - sentence reduced to 15 years' imprisonment

STEYN, P

In a
trial in the High Court, Guni J presiding, the appellant -referred to
as the accused - was charged and convicted on the following
counts:

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1. Murder

   
   

2. Attempted
   Murder

   
   

3. Assault.

   
   

The
court, having found extenuating circumstances, sentenced him to 30
years' imprisonment on this count, he was sentenced to 2
years'
imprisonment on the charge of attempted murder and 6 months on the
assault charge. All these sentences were ordered to run
concurrently.
He has appealed both against his conviction and his sentence.

The facts
of the matter are the following. On Christmas eve 2001 one 'Mathabo
Mahlomola Shoetleng woke from her sleep in her house
where she and
her husband were at that time. She says that a shot had been fired at
the door of her house. At the same time the
suffocating effects of
the smoke that had been released by the shot that had been fired
caused her to get up.

She ran
to the door to get fresh air, opened it and found the accused
standing outside the door. She recognized him as a relation
of hers.
He was wearing a blackish blanket and white trousers. It was a
moonlit night and there was, according to her,

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sufficient
light to enable her to recognize her cousin's son, best known and
referred to in the evidence as Kali. He was standing
some 8 paces
from her.

This
witness raised the alarm and the evidence indicates that there was an
immediate and significant response from the villagers.
One of those
who was aroused by his father was a young man of 26, one Melato
Linkoane, PW3. He and his father together with other
villagers
including the deceased, decided to try to find the person who had
fired a shot at the Mahlomola homestead. To this end
they split into
two groups and surrounded the house. They agreed that if the
assailant was seen a whistle would be blown to pinpoint
his locality.
This plan worked and stones were thrown at the person whom the
witness identified as Kali - the accused. He ran away
from them when
they threw stones at him, but the villagers had surrounded the
homestead and he ran straight into an ambush. It
appears from the
evidence of the witness PW4 that he then grappled with the accused
who assaulted him. (This assault is the subject
of the third charge
referred to above.) The accused having freed himself from his captors
then ran away again, now pursued by PW3

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and his
group which included the deceased. The witness says that he threw a
stone at the accused who turned back towards them and
fired two
shots, one of which hit the deceased. PW3 says he picked up another
stone which he threw at the accused, who fired a
third shot and was
wounded on his hand. He confirmed that the deceased was already dead
when he (the witness) left to report to
the police and seek medical
assistance. The shooting of this witness is the subject of the second
charge.

PW4 said
how, after he too had thrown stones at the deceased, the latter ran
towards him grappled with him and overcame him by hitting
him on the
head with an object like a stick. He called out and shouted "he
is Kali". He heard the three gun reports testified
to by PW3 and
when he went to enquire found him wounded and the deceased shot dead.
He testified that he knew the accused and knew
him well.

PW5 is
the father of PW3. He was in a church meeting when a report was made
to him about gun shots at the Mahlomola homestead. He
arrived at the
scene whilst the hot pursuit was

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already
underway. He heard the sound of three gun-shots but could not see the
assailant. However he heard his son cry out that he
had been shot
"and that it was Kali."

It was
common cause that the deceased was killed by a gun shot. It is also
not disputed that the accused handed his firearm to PW6,
a police
officer, for ballistic examination and to determine whether the
bullet which was retrieved from the body of the deceased
had been
fired from the barrel of the deceased's firearm. PW6 also testified
that after the accused had been arrested on the charge
of murder he
asked him for an explanation which he gave to him. The accused
counsel who had questioned every witness extensively,
often on
matters which had no relation to key issue of identity, explored the
question of the explanation in cross-examination
of the witness.
Because of the significance of the evidence, I cite the relevant
passage from the record. It reads as follows:

"DC: As the court pleases. I will pass on to the next point. You
said when he was arrested, he gave his explanation at this
time he
gave his explanation were you there?

PW6: I once been there at the police and the accused was already
arrested.

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DC: You have been there when he was giving his explanation you didn't
answer the question?

PW6: Yes I as well talked to him and he also gave me his explanation.

DC: What type of explanation was that? PW6: Do you want me to explain
it?

HL: Yes witness he is the defence counsel, if he wants a hearsay just
say it but if it is an incriminating evidence the crown is
not
entitled to ask you because you are her witness, he is entitled just
say them?

PW6: He explained that he went there to shoot Mahlomola, he said that
has been told by his father that Mahlomola is stealing his
cattle so
he just wanted him to reprimand Mahlomola that this the only
explanation he gave and any others.

DC: Did he just volunteer to give you this information?

PW6: That is so and 1 was asking him as to why had those happened."

There was
no suggestion that this statement was not made voluntarily and there
was no cross-examination directed at impugning or
contesting the
veracity of this verbal exchange. However, when the accused testified
he asserted that he had been tortured and
forced to make this
statement. I will comment on this aspect of the matter below.

The Crown
also produced expert testimony to prove that the firearm found in the
possession of the accused and handed over to

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them by
him was the firearm that discharged the bullet found in the body of
the deceased. The ballistic expert called by the Crown
testified that
this was indeed the case. The acceptability and reliability of this
evidence was not challenged by the accused counsel
in his argument
before us and no reasons were advanced why this evidence should not
have been accepted by the Court a quo as indeed
it was.

This, in
broad outline, was the evidence adduced by the Crown. As can be seen
from a reading of the above narrative the Crown case
was a compelling
one and called for an answer from the accused. Indeed he did testify.
His version was that he was wrongly identified
by the Crown
witnesses, that he was not the person who shot at the house of
Mahlomola, shot at and wounded PW3, grappled with and
assaulted PW4
and although he made the statement attributed to him by PW6 was
intimidated and tortured to do so.

As
indicated above the contention that he was tortured was never put to
the police witness. Neither was the independent ballistic
evidence
challenged. However, more importantly, members of the

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accused's
family who shared the house where he alleged he spent the night of
the shooting were not called to support his evidence
that he did so.

It is our
view that the Court a quo was right in finding beyond a reasonable
doubt that the Crown had established that the accused
was the person
who fired a shot or shots at the Mahlomola homestead, also attempted
to kill PW3, assaulted PW4 and shot at and
killed the deceased. It
was therefore also justified on the evidence before it to find the
accused guilty as charged on the three
counts on which he was
indicted. It follows that the appeal against his conviction on these
three counts must be dismissed.

The
appeal against the sentence has to be considered. In her reasoning
for imposing a sentence of 30 years1 imprisonment the learned
Judge a
quo referred to the following matters:

1. She
   said that she took into account all the personal circumstances of
   the accused. She does not mention any of those other than
   the fact
   that he was married and had two children.

   
   

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2. She
   took into account that he took the law into his own hands and went
   to the village to punish Mahlomola. (She had found that
   this fact
   was an extenuating circumstance).

   
   

The rest
of her comments can only be described as an emotional condemnation of
the accused's conduct. The learned Judge appears
to have failed to
have due regard to the following facts:

1. The accused was at the age of 49, a first offender.

2. There is no evidence that he intended anything more than to fire
the two shots at the house to scare the person who was alleged

responsible for the theft of the family's cattle. It should be noted
in this regard that he did not attempt to shoot PW1 or enter
the
house to shoot her husband who had been asleep inside the house and
was to me the person to be "punished".

3. When he was encircled by the villagers he did not attempt to use
his firearm on the first occasion when he was confronted by
them, but
used a stick to ward PW4 off.

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4. It was only when he was trapped and encircled by the villagers
that he fired the shots that wounded PW3 and killed the deceased.
The
use of his firearm, reprehensible as it was, was employed as a means
of securing his escape from his pursuers and not with
a deliberate
focused intention to kill any particular person.

Whilst
the accused was therefore correctly convicted of very serious crimes,
I am satisfied that this did not merit anything like
the excessively
severe sentence of 30 years' imprisonment imposed on him. As a first
offender of 49 years and in the circumstances
referred to above, we
are of the view that a sentence of 15 years imprisonment would have
been a proper sentence, bearing in mind
the triad of factors which a
court has to consider when sentencing an accused.

I have
not referred to the decision of this Court in Monaleli and Ano., C of
A (CRI) 6/2004, (unreported) because this judgment
had not been
delivered when the accused was sentenced. However, our view of the
excessive nature of the sentence is confirmed by
our comments when we
said:

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".........sentences in excess of 25 years' imprisonment have
been described as 'exceptionally long and as' only appropriate
in
very exceptional circumstances."

The Crown
very responsibly and correctly conceded that the facts of this case
did not qualify it as falling within the ambit of
"very
exceptional circumstances". We are indebted to the Crown for
adopting this commendable approach.

For these
reasons the Court finds:

1. That
   the appeal against the conviction is dismissed.

   
   

2. The
   sentence is reduced to one of 15 years' imprisonment, the 3 counts
   to be taken as one for purposes of sentence.

   
   

JH Steyn

PRESIDENT

I agree:

M.E.
Kumleben

JUDGE OF
APPEAL

I agree:

SN Peete

EX
OFFICIO JUDGE OF APPEAL

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Delivered
at Maseru on 20th October 2005

For
Appellant : Mr. Shale

For
Respondent : Ms. Ntene (Assisted by Ms Ngcobo)