CRI/T/121/00.

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

REX
Crown

And

MOKOEPA
MOFILKOANE__________________The Accused

JUDGMENT
ON SENTENCE

Delivered
by the Honourable Mr Justice T. E. Monapathi on 14th day of March,
2007.

The
Accused had been charged with murder. It was alleged in the
indictment that he did on or about the 24th day of April 1999 and
at
or near Ntlholoetsane in the District of Mokhotlong, unlawfully and
intentionally kill one Thusang Lenea (Deceased).

The
Accused pleaded not guilty to the charge but that he killed the
Deceased negligently. He then tendered a plea of guilty to culpable

homicide, which the Crown accepted and the Court

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accordingly
entered it as such. See section 240 (a) Criminal Procedure and
Evidence Act 1981 (CP&E). The requirement of this
sub-section is
that in the High Court, upon acceptance of plea the court shall "
... bring in a verdict without hearing evidence."
I noted on
mature reflection or with hindsight that this should have been fully
complied with. With regard to that admission of
guilt, I have noted
in favour of the Accused that he had filed a timely plea.

Miss
Kanono then outlined the evidence summarized from the preparatory
examination (PE) record. The summary consisted of the statements
of
seven (7) witnesses including a post-mortem report. Virtually there
was no challenge to the summarized statements except that
the Accused
when mitigating gave his own version which was almost the opposite of
the Crown in certain essential respects. I will
refer to this later.

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Excepting
for the background and facts leading to the fight, it appears that
there had not been any quarrel between the Deceased
and the Accused.
PWl's evidence showed that when Accused alighted from his vehicle he
already had a gun. This was also not contested
by the defence
counsel. It is but one example.

The above
shows the extent to which the matter nearly went out of control. This
I say for the following reasons. The statements
in the PE record are
not strictly evidence. See Rex Sehloho Joseph Maphiri 1999 - 2000 LLR
198. I would have accepted that having
accepted the statements
Accused and his Counsel, validated the truth that "may"
have been contained in the statements.
But this appears not to be the
legal position. It is just fortunate that the verdict sought was one
resulting from an admission
of guilt to culpable homicide. Otherwise
a mistrial would have resulted.

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The
further implication was that the Accused then denied crucial aspects
of what he had already admitted for example that he never
originally
had a gun with him because the gun was not his. Indeed most
ironically the gun was never found. All these would, in
proper cases,
go into the credibility of the Accused on reliability of his
statements. Or as the Crown obliquely suggested that
the Accused was
an outright liar. I avoided making any conclusion in that regard or
being led to make a finding.

According
to my own observation, I remained with a verdict of culpable homicide
case as such. This I would however consider as Accused
having nearly
exceeded the bounds of self-defence as he had originally been hit
with a stick. Indeed one witness who testified
at the PE spoke of
Accused and Deceased having struggled. Accused however said he had
been negligent. It appeared to be negligence
that bordered too close
to recklessness. The Accused had however recited the events
surrounding or leading to fight as

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almost
comical or mysterious. He said it was an accident. As said before he
did testify in mitigation to say that he was attacked
for no good
reason having passed a remark in good humour to someone who was in
company of the Deceased.

Accused
said he is a businessman of 29 years of age. He has children and a
wife to support. As Crown Counsel confirmed the Accused
had no
previous convictions. This meant that the Accused had always been law
abiding and most probably had had no "brushes
with the law."
Accused would say that he is a man of good character.

Although
this was not testified to or except by Counsel from the bar, Accused
said that he did finance the whole burial of the Deceased.
I would
consider this as a sign of remorse or contrition. I would also
favourably consider this together with the fact that he
had pleaded
guilty and not wasted the court's time. In a case where some accused
pleaded guilty and the others not guilty, this
factor was

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taken
into account in favour of those who pleaded guilty. See 7? v Mvelase
and others 1958 (3) SA 126 (H). Those who pleaded guilty
were treated
more leniently in their sentences. I also took this into account in
favour of the Accused.

At all
times I was not unmindful of the remarks of Holmes J A in S vRabie
1975 (4) SA 855which acts as guidance. The judgment pronounced
that
punishment must fit the crime as well as the criminal. Secondly, the
interest of the society must be protected. Thirdly, punishment
must
be blended with mercy. Fourthly, the main purposes of punishment are
different preventive, reformative and retributive. Fifthly,
a fair
and balanced attitude must be exhibited towards sentencing. See pages
861 - 864 C - D.

Counsel
referred me to the following cases. (1) S vShepardard

others
1967 (4) SA 170 () at 180, (2) R v Jacobs 1958 (3) SA 414 (), (3) R v
Motenin 1949 (2) SA 547 at 550, (4) R v Von Zell (2)
1953 (4) SA 552
AD at 561, (5) S v Joelson 1971 (2) SA 135.

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I agreed
that it is those facts which are placed before court which regard
shall be had thereto which have the effect of influencing
the court
to pass a lesser sentence.

When
there is any reasonable doubt on the question of the gravity of the
offence it should benefit the Accused. See SvShepard and
Others (1)
at page 180. Without disregarding any factors I have already remarked
that this was a serious borderline case of culpable
homicide.

A trial
court such as the present is bound to consider, when sentencing an
accused, evidence appearing in the record of a preparatory

examination. See R v Jacobs (2) and R v Motenin (3). I have already
made my remarks earlier about the summary made by the Crown
Counsel.

It is
indeed trite that an accused is expected to give a reasonable and
probable story in mitigation. See S v Shepard and

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Others
(1). While I have expressed my own doubts over areas on which the
Crown's and Accused's story differed, I accepted the Accused's
story
on areas that were purely mitigatory. I have had to take into account
all the factors that redounded to Accused, for example,
that he
contributed into the funeral expenses of the Deceased. Indeed in our
culture this is very weighty and is an aspect of restorative
justice.

In the
above spirit I had to consider that the Accused and the Deceased came
from a semi-rural background. That is why the cause
of the fight was
somehow perplexing. This would probably have not been the case if
both versions in the case were tested. By analogy
the CP&E
directs at section 296 (2) that;

"In deciding whether or not there are extenuating circumstances
the High Court shall take into consideration the standards
of
behaviour of an ordinary person of the class of the community in
which the Accused belongs."

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In my
view the Accused did not exhibit any amount of sophistication above
that of his own community.

I agreed
that it was trite that a trial judge has to weigh the variety of
factors which make impression regarding the Accused's
character and
probable reaction to clemency when passing sentence if such factors
exist See R v Von Zell (4) 561E-H

I did do
also consider factors that were aggravating. It was serious crime.
Although the circumstances were perplexing I did not
think that
necessarily weighed against the Accused. In a case where facts
surrounding the crime were much clearer the court considered
the
question of extreme provocation by the Deceased as a key factor. See
S v Khumalo 1973 (3) 697 (ADP) for example. Another factor
had been
that it was a long time that accused had been out of trouble and had
already served his sentence for the first murder.

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The
seriousness of the crime committed by the Accused meant that a
precious life had been lost to family and friends. Deceased will
not
come back. Hence the tragedy.

In
considering the sentence on the Accused, I was mindful that the right
approach in sentencing is that there should be reasonable

consistency, predictability and transparency. I was also keen to
acknowledge that the courts have an overriding quest to demonstrate

the importance of maintaining law and order, and protecting and
upholding civilized standards as far as possible.

One of
the requirements is uniformity in sentences. This quest and manifesto
outweighs any possible inconvenience or humiliation
to an individual
or his personal circumstances. However, in substantial and compelling
circumstances, a sentence can be made to
differ from others. That is
why, despite that a

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sentence
was prescribed by a statute and I would imagine even where strict
adherence is sought to a sentencing guidelines:-

"It is wrong, notwithstanding the circumstances particular to
each separate contravention, " to lay down" a particular

sentence for a particular sort of offence and to apply it to all
convictions and in addition to apply the "laid down sentence"

as the yardistick for the sentence to be imposed for other crimes.
Such a wide and general application and use of a "laid
down"
sentence creates a rich breeding ground for judicial error and
injustice. Each particular case must be treated on its
own merits"
is apposite. See Headnote in - SvTsiloane 1977(3) SA 336.

I was
persuaded that due to the circumstances of this particular case an
option of a fine or a suspension or postponement of sentence
would
fit the circumstances of a first offender and sole

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breadwinner
while not ignoring other factors especially those which are
aggravating. With regard to the courts powers or discretion,
I was
referred to section 314 of the CP&E (postponement and suspension
of sentences) I also took cognizance of the provisions
of section 305
(4) of the CP&E (recovery of a fine paid as option to
imprisonment).

I
concluded therefore that there were no aggravating factors as a
result of which imprisonment without option of a fine would not
be
justified. See S vMokhethi 1971 (3) SA 227 (O),

The
Accused is sentenced to pay a fine of Seven Thousand Maloti
(M7,000.00) in default of such payment to a term of imprisonment
of
seven (7) years. The fine to be paid between today and the first day
after Easter Monday. In the meantime the Accused is released
from
prison forthwith.

T.
Monapathi

Judge