IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
V
MONAKOE TAOLANA
Review Case No.6/07 In Maseru District
C.R. No. 1929/06 Review Order No.2/2007
REVIEW ORDER
21/03/07
This case is before me for automatic review. The accused, a 38 years old man, appeared before a magistrate with second class powers? charged with the offence of contravening Section 8(1) of Sexual Offences Act, 2003, it being alleged that on or about 1st November 2006 and at or near Tsautse, Qoaling, in the district of Maseru, he committed an unlawful sexual act with his seven (7) years old daughter, Mosa Taolana, by inserting his penis into her vagina.
When it was put to him, the accused pleaded guilty to the charge. The public prosecutor accepted the plea of guilty
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tendered by the accused person and the provisions of Section 240 (1) (b) of the Criminal Procedure and Evidence Act 1981
were invoked. The section reads in part:-
"240 (1) If a person charged with any offence before any court pleads guilty to that offence or to an offence of which he might be found guilty on that charge, and the prosecutor accepts that plea, the court may -
(a)
(b) if it is a Subordinate Court, and the prosecutor states the facts disclosed by the evidence in his possession, the court shall, after recording such facts, ask the person whether he admits them, and if he does, bring in a verdict without hearing any evidence."
The facts (and these were admitted as correct by the accused) outlined by the public prosecutor were that if the accused had not pleaded guilty to the charge, the crown would have called witnesses to testify that the complainant, Mosa Taolana, is seven (7) years old. Her parents are the accused person and his wife, 'M'amosa Taolana.
On 1st November 2006, 'M'amosa Taolana left home for a place called Ha Thamae, leaving the complainant at home with
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the accused. On the afternoon of the same day, the complainant was playing with other children whilst the accused was drinking home-made
beer at the house of one 'M'atseko. Later on the afternoon of the same day, the accused returned to his house and on arrival called the complainant into his bedroom where he ordered her to get on the bed. The accused then removed complainant's panties. He too removed his trousers, got on top of the complainant and inserted his penis into her vagina. When the complainant started screaming, the accused covered her mouth to stop her from screaming or making noise. Thereafter the accused put on his trousers and went out of the bed-room leaving the complainant crying therein.
Later on, the complainant also went out of the house to play with other children outside. She then noticed that the accused had returned to the beer drinking house of 'M'atseko.
When later on that day, 1st November 2006, her mother returned home, the complainant reported to her what the accused had done to her (complainant). Complainant's mother 'M'amosa Taolana, then questioned the accused about what he had allegedly done to the complainant. In reply, the accused asked for forgiveness and said he had been possessed by an evil spirit he did not know.
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'M'amosa Taolana then called a neighbour, by the name of 'Mefa Ntobo, with whom she examined the child, Mosa Taolana. Their findings were that the child's vagina had been torn, some sperms could be detected and there was offensive smell.
On the following day, 2nd November 2006, 'M'amosa Taolana reported the incident at Thamae Police Station, in Maseru, where she and the complainant were given a medical form and referred to Queen Elizabeth II hospital. At the hospital, the complainant was medically examined by a doctor who compiled a report by completing the medical form. The medical report was handed in evidence and marked exh. 1 (sic).
According to "exh.l" the complainant was examined by the medical doctor two (2) days after the alleged rape had occurred. No vaginal smear was taken for it was too late. No bleeding was detected; the examination was normal except that there was redness around the vagina; and the vagina was open as an indication of the possibility of penetration.
It is worth mentioning that although, in his outline of the facts, the public prosecutor said the evidence would have shown that, on 2nd November 2006, the complainant and her mother went to Thamae Police Station from where they were given the medical form and referred to the hospital, "exh.l"
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shows that the medical form bears the police date rubber stamp impression of 6th November 2006 thus suggesting that it was given out by the police on that date and not on 2nd November 2006. Again, although the outline of the facts says the complainant was examined by a medical doctor on 2nd November 2006, the medical report (exh.l) bears the hospital date stamp impression of 10th November 2006 thus suggesting that the date on which the complainant was medically examined was 10th November 2006 and not 2nd November 2006 as the outline of the facts would like the court to believe.
Be that as if may, in his outline of the facts of the evidence he had in his possession, the public prosecutor continued to tell the trial court that if the accused had not pleaded guilty, Sgt. Posholi would have been called as a witness to testify that he was a member of the Lesotho Mounted Police Service. On 7th November 2006, he received a certain report following which he immediately mounted investigations. On 9th November 2006, the accused was brought to him (Sgt. Posholi) by some police officers. He introduced himself to the accused and demanded an explanation from him. According to him, Sgt. Posholi found the accused's explanation unsatisfactory. He therefore, cautioned and charged the accused as aforesaid.
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The trial court considered the evidence outlined by the public prosecutor and found the accused guilty as charged. A sentence of five (5) years imprisonment, with no option of a fine, was imposed.
On the basis of the evidence outlined by the public prosecutor and admitted as correct by the accused, I have no quarrel with the verdict of "guilty as charged" returned by the trial court. I, however, have difficulty with the sentence of five (5) years imprisonment imposed by the court.
It is significant to bear in mind that the accused was charged and convicted with contravention of Section 8 (1) of Sexual Offences Act 2003 which section is under Part III of the Act. The section reads:-
"8 (1). A person, who commits a sexual act with a child, commits an offence."
As for the definition of "child", see Section 2 of Sexual Offences Act, 2003. The section reads, in part:-
"2. In this Act, unless the context otherwise requires — ----------------"child" means -.
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for the purpose of Part III a person who is below the age of 16 years; and
--------------------------------."
The accused, a 38 years old man, admittedly had sexual intercourse with the complainant who was, at the time, a seven (7) years old girl and, therefore, a child.
In passing the sentence of five years imprisonment, on the accused, the trial court took the view that the sentence was permissible under Section 31 of Sexual Offences Act 2003. The section provides, in part:-
"31 (1). Save for the Central and Local Courts, the sentences under Section 32 shall apply and be enforced by all courts unless extenuating circumstances or the proper consideration of the individual circumstances of the accused or lawful intimate relations between the perpetrator and the victim dictate otherwise.
(2) -------------------------------------.»
With all due respect to the learned trial magistrate's view, I am unable to agree that the sentence of five years imprisonment is permissible under Section 31 of Sexual Offences Act, 2003. On the contrary, the section clearly
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stipulates that "save for the Central and Local Courts, the sentences under Section 32 shall apply and be enforced by all courts-----"
In my view, the only occasion, where a sentence of five years imprisonment is permissible, is where the offence committed by the accused is that of exposure or display of genital organs to another person - see Section 32 (b) (i) which provides, in part:-
"32. .......................................................................
(a) .........................................................
(b) ..........................................................
(i) Where the offence committed is exposure or display of genital organs by one person to another, to imprisonment for a period of not less than five years.
In the instant case, the offence committed by the accused is not that of exposure or display of genital organs to another person. The sentence prescribed under Section 32 (b) (i) of Sexual Offences Act 2003 cannot, therefore, apply. Instead, the offence committed by the accused is contravention of Section 8 (1) of Sexual Offences Act 2003 which is the offence under Part III of the Act. That being the case, the sentence
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that applies is clearly the minimum sentence prescribed under Section 32 (a) (vi) of Sexual Offences Act 2003. The section reads, in part:-
"32 ............................................................
(a) ..............................................................
(vi) Where the offence is committed under Part III, IV and V by a person who is 18 years or above, to imprisonment for a period of not less than 10 years."
As it has been stated, earlier in the judgment, the trial magistrate before whom the accused was tried, had only second class powers. The trial magistrate had, therefore, no jurisdiction to impose upon the accused the penalty prescribed under Section 32 (a) vi) of the Sexual Offences Act 2003 which penalty was clearly beyond the ceiling of he trial magistrate's penal powers. The only course open to the trial court, in the circumstances, was to invoke the provisions of Subsection (2) of Section 31 of Sexual Offences Act 2003. The Subsection reads:-
"31 (2). Where the appropriate penalty is beyond the ceiling of penal powers of the trial court, it shall, after conviction, send the case to the High Court for sentence."
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In the light of the aforesaid, the following orders are made, on review: -
The verdict of "guilty as charged", returned by the trial magistrate, is confirmed as being in accordance with real and substantial justice.
The sentence of five (5) years imprisonment imposed by the trial magistrate is, however, set aside; and
The proceedings are returned to the trial magistrate who, for want of penal jurisdiction, should cause the accused to appear before the court and commit him, in terms of the provisions of Sections 293 (1) and 294 (2) of the Criminal Procedure and Evidence Act, 1981, for sentence by the High Court.
B.K. MOLAI
JUDGE
Copy:
The Director of Public Prosecutions
All Chief Magistrates
All Magistrates
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All Public Prosecutors
The Magistrate - Maseru
The Director of Prisons
O/C Police - Maseru
O/C Central Prison - Maseru
CID Headquarters - Maseru
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