IN THE HIGH COURT OF LESOTHO
In the Matter Between:
Delivered by the Honourable Madam Justice
on the 31st March 2011
Accused convicted by the Subordinate Court and committed for sentencing before the High Court – undue delay in the prosecution thereof – application for discharge in terms of Section 141(2) of the CP&E – whether prejudice per se warrants discharge– section mandatory but all things considered prejudice mitigated by reduction of period served - application for discharge dismissed and accused duly sentenced
The accused in this matter was charged with and convicted by the Mafeteng Magistrate Court for having committed a sexual offence against the complainant in contravention of Section 8(1) of the Sexual Offences Act 2003. He pleaded guilty to the charge and after his conviction the matter was committed to this Court for sentencing in terms of Section 31(2) of the Act. This was on the 28th December 2009. After I had heard submissions from Counsel, I sentenced the accused to an effective sentence of imprisonment for a period of eight (8) years and nine (9) months and stated that my reasons would follow. I proceed to give those reasons herein below.
The facts and summary of the evidence are common cause and not in issue. It is also common cause that this matter reached the High Court Registry sometime in February 2010. Unfortunately, it was only placed on the roll and heard by this Court on the 28th March 2011, about a year and half since the accused was convicted and committed for sentencing. He has been in custody of the Mafeteng Correctional Services since his conviction. On the date of hearing the accused appeared before me and was represented by Mr. Lephuthing. It was stated on his behalf that the matter should have been forwarded to this Court immediately following his conviction so that he should have been sentenced within six (6) months thereafter.
In his submissions,Mr. Lephuthing made the contention that the unreasonable delay in the prosecution of the accused’ sentence vitiates this Court’s powers to proceed with this case. He added that the protection afforded by Section 12 of the Constitution of Lesotho extends beyond trial related interests and embraces liberty and social interests as well others which have to be taken into account in assessing whether there has been infringement of the protection afforded by the imperative of a speedy trial.
Counsel for the accused added that the provisions of the Sexual Offences Act pursuant to which the accused was committed for sentencing are harmonious with Section 141(2) of the Criminal Procedure and Evidence Act 1981. He made the submission that want of timely prosecution of accused’ sentence and the resultant prejudice to his constitutional right entitle him to be discharged in respect of the offence for which he has been convicted. In this regard he referred the Court to the case of Rex v Kopano Malunga CRI/S/X/2007- CRI/S/X/2009 (unreported).
He added that the accused had no participation in the delay which entitles him to an acquittal because he is not going to get a fair trial due to the inordinate delay in the prosecution of his case. Counsel for the accused also referred this Court to the South African case of Riddock v Attorney General for Transvaal 1965(1) SA 817 and the Lesotho case of Kekeletso Mokokoana v Officer Commanding Police at Robbery & Car Theft Unit CIV/APN/144/94 (unreported) in support of his submission.
Further that even if this Court does not acquit the accused, there is no legislative or other limitation that should be imposed upon it when determining the type of sentence to be meted upon the offender and that in every case the Court has to give due consideration to the triad of factors as have been stated in previously decided cases.
Mr. Lephuthingmade the further submission that in terms of the Court of Appeal’s decision in the case of S v Tsiloane 1973(3) SA 336, each case has to be treated according to its own merits and that the general application and use of laid down sentences create a breeding ground for judicial error and injustice.
In mitigation of sentence Counsel for the accused stated that at the time of the commission of the offence the accused was only twenty years of age and that due to his limited exposure to education, he was of the mistaken understanding that following introduction he and the complainant were ad idem in engaging in sexual intercourse. Further that accused is a first offender and pleaded guilty to the charge which is a sign of remorse on his part.
On behalf of the Crown, Mr. Fuma pointed out that the Court at this stage is not concerned with the correctness or otherwise of the conviction because the accused is at liberty to either appeal or apply for a review as the case maybe. To this end he referred the Court to the case of R. v Paseka Janki C of A (CRI) NO. 11 of 2005 (unreported) as well as that of Thuloane Mohoase v R. C of A (CRI) NO. 7 of 2004 (unreported). However, this was not placed in issue by the defence.
The Crown Counsel added that it would not be right for this Court to discharge the accused in the present case as envisaged under Section 141(2) of the Criminal Procedure and Evidence Act of 1981 and that the decision in Kopano Malunga’s case (supra) in which the Court permanently stayed the proceedings and discharged the accused has to be distinguished from the present one in that therein, not only had the accused spent a period of two (2) years without being sentenced, but that this was due to the unavailability of the record of proceedings which was not traceable so that it was impossible to proceed with the matter. Further that it was the Crown that had moved the Court for the permanent stay of the proceedings and the discharge of the accused.
Mr. Fumastated that in the present case, the record of proceedings is available so that it is not impossible to proceed with the matter. Further that the Court should bear in mind that the statute under which the accused was convicted prescribes only a custodial sentence so that there is no prejudice that the accused can say he has suffered as whatever sentence is imposed can be made to start from the date of conviction which will remedy whatever delay that may have occurred.
Further that on the basis of the Court’s sentiments in the case of R v Mphafolane Tonya & 2 others CRI/S/12/07 (unreported) if the accused is discharged due to the delay only, the criminal justice system would be brought into disrepute as vulnerable people such as women and children need to be protected by the Courts against people like him.
Mr. Fumamade the contention that at the time of the commission of the offence, the accused was twenty (20) years old and the complainant was fourteen (14) years old and that in terms of the provisions of Section 8(1) of the Sexual Offences Act which falls under Part three thereof the relevant penal provision is Section 32(a))(iv) which prescribes imprisonment for offences falling under section 8 to be imprisonment for a period not less than ten (10) years and that the Court has to impose a custodial sentence for a period not less than the prescribed one.
I now proceed to deal with the question whether in terms of the undisputed delay in the prosecution of sentence in this case I should invoke the provisions of Section 141(2) in terms of which I should discharge the accused.
The section reads as follows:-
“If the person committed for trial or sentence before the High Court is not brought to trial at the first session of that court held after the expiry of 6 months from the date of his commitment, and has not previously been removed for trial elsewhere, he shall be discharged from his imprisonment for the offence in respect of which he has been committed.”
It is inarguable that in the light of the word shall, the above provision is mandatory. However, I pause here to consider whether the section should be understood to mean that the accused should be discharged and proceedings be permanently stayed against him, or whether it means that his liberty should be restored with respect to the charge for which he has remained in incarceration without prosecution. It is my opinion that the latter is the case because nowhere do I read the words, ‘and permanently stay the proceedings against him’.
However, assuming that the provision means that the matter should be permanently stayed, this poses the question whether the Court should simply apply it without first considering all the prevailing circumstances of this case and the fairness or otherwise of such a decision. As a starting point, I find it apposite to mention that it is trite that rules of procedure, irrespective of whether the Court is dealing with a civil or criminal matter are meant for the Court and not vice versa. Simply put, rules are there to properly guide and assist the Courts to attain a smooth running of the administration of justice. They are thus only the means to an end and not the end itself. In my view this means that they cannot and should not be clinically applied sans other compelling considerations.
Having said this I should mention at this stage that for quite a considerable period of time now, the judicial administration system has been bogged down by a serious backlog of cases inter alia, the result of which it is common that a great deal of cases are only heard on average, five (5) or so years after they have been enrolled for hearing. This is a notorious fact of which I take judicial notice of. Factors that have contributed to this unsavory state of affairs are many and varied and I find it unnecessary for purposes of this judgment to list and/or delve into them.
However, suffice it for me to say that most of them are neither a result of fault on the part of the accused persons nor of the victims and/or society as a whole. Bearing this unfortunate factor in mind, I do not think that it would be fair and just for the Courts to casually apply the above provision and discharge all accused persons and permanently stay proceedings against them solely on the strength thereof without considering all the other factors that are in play.
It is my opinion that the consequences of adopting such an attitude are too ghastly to contemplate because not only would it mean that most accused persons are not brought to trial and/or committed for sentencing and discharged, but that very fact would encourage the ever-present danger of people resorting to self-help thus promoting a culture of anarchy amongst other potential ills. Further, the whole justice administration system would be brought into disrepute and rendered impotent. While accused persons are undoubtedly entitled to a fair and speedy trial, this is not the only consideration that the Court is faced with. Other factors which I am going to deal with in this judgment definitely have to be considered.
I however hasten to add that I should in no way be understood to be suggesting that the delay in the prosecution and finalization of cases is not in itself a serious problem that should be tolerated and ignored because indeed, justice delayed is justice denied, but that for as long as this remains a problem, Courts should be very wary when dealing with applications of this nature when everything is considered.
Therefore, I entirely agree with the Court’s sentiments in the case of Riddock v Attorney General (supra) and wish to add that each case has to be dealt with according to its own particular circumstances. This is trite. Some of the factors that have to be considered include but are not limited to, the nature of the offence, the interests of the victim, those of society as a whole and the duty of the Courts to protect and promote the rule of law.
I now proceed to deal with the question whether for the fact that the present accused has spent the period of one (1) year and three (3) months in prison without having been sentenced, that delay alone is enough to warrant his discharge and permanent stay of the proceedings against him. It must be borne in mind that the accused was convicted for an offence of a sexual nature against a minor child, he pleaded guilty and he admitted the summary of the evidence. As Mr. Fuma correctly stated, the section under which he has been committed is to be read together with the penalties section of the Act namely Section 32(a)(iv) in this case.
“Where the offence is committed under Parts III, IV and V by a person who is 18 years or above, to imprisonment for a period less than 10 years;”(emphasis provided)
While it was not suggested that the offence does not fall under the section, I have already shown above that Mr. Lephuthing raised the issue of prescription of penalties and the unconstitutionality thereof. Without dwelling much on this issue, suffice it for me to say that this Court as it is presently constituted is not the proper forum for the challenging of the alleged unconstitutionality of the provisions in question and/or the entire Act. I need say no more in this regard.
While I do accept that by spending one (1) year and three (3) months in prison while awaiting his trial the accused did suffer prejudice, I am also of the opinion that in the light of the seriousness of the offence, the prescribed sentence and the fact that sexual offending is one of the worst scourges of abuse against the vulnerable section of society especially young children, the prejudice can be mitigated in the sense that the custodial sentence to be imposed should be less the period of time already spend in prison.
As shown above, the penalty provision prescribes imprisonment for a period of not less than ten (10) years without the option of a fine. This means that the ten (10) years is only the minimum sentence to be imposed and the Court is at liberty to impose a much higher sentence when everything is considered. Thus, even if the accused had started serving his sentence immediately after his conviction he would still be far from the half way mark of the prescribed minimum so that it is my view that when all is said and done, the prejudice he may have suffered is far outweighed by all these other factors.
Indeed in the case of Malunga (supra) which Mr. Lephuthing sought to rely on in this application the accused was discharged on the basis of Section 141(2) of the CP & E. However, there is a distinction to be drawn between the two in that in that case, not only had the accused spend two (2) years without his sentence being prosecuted, but the record was not traceable and the Crown itself instituted the application for his discharge. Therein the learned Lehohla CJ stated as follows in relevant parts at p5 of the record:-
“The DPP’s reaction to the above state of affairs concerning the importance of security of records was that, a committal is by its nature a continuation of a trial and that it goes without saying that, the fact of the Accused having spent two years in custody without being sentenced was no doubt against his constitutional right to a fair trial. He submitted further that on account of non traceability of the records, want of prosecution for Accused’s sentence and the resultant prejudice to the constitutional right of the Accused, he prays that the matter be permanently stayed.” (my emphasis)
At any rate, Mr. Lephuthing’s suggestion that that decision is binding on this Court is absolutely wrong. At best, I could be persuaded by it on the basis of sound reasons.
I might also add at this stage that Counsel’s suggestion that by not acquitting the accused I would not be deprecating the undue delay is a flawed, misplaced and baseless one. Deprecation of something does not necessarily translate into what an individual thinks and/or believes the Court should and must do under any given circumstances. Any delay in the administration of justice does not affect one person, namely the accused but the complainant and every law-abiding citizen as well as the Court itself. Thus, to merely agree to acquit an accused person who has been convicted for such a serious offence these other factors notwithstanding would in my opinion be a serious travesty of justice. There are other ways in which that can be done. I therefore undertake to deal with this matter administratively in order to help avoid mistakes such as this occurring again in the future.
I now proceed to consider the factors that were pleaded on the accused’ behalf in mitigation of his sentence to wit, that he is a first offender, he showed his remorse by pleading guilty to the charge and thus saving the Court’s time, he is uneducated thus his distinction between right and wrong differs from that of a more educated person. I do accept that all these should count in the accused’s favour. However, as I have stated, I also have the duty to strike a proper balance between those factors and others such as the nature of the offence, the interests of the victim and those of society at large.
It has been shown that the victim was very young, merely fourteen (14) years old when the accused defiled her. The traumatic effects of victims of sexual abuse, especially young ones are legion. The ever-present risk of STIs on innocent victims, HIV/AIDS being the most serious one in this era is a matter of serious concern. Further, the culture of disrespect of the fairer sex and young children and the tendency by some men to violate them with impunity without so much as a thought towards their basic rights and dignity has to be discouraged at all costs. Needless to mention, oftentimes, victims of sexual abuse carry the burden of stigmatization from society as opposed to the perpetrators. Such is the bizarre and ironic nature of sexual violence, double victimization.
In addition, while it may hold true that a person who has not had the benefit of education such as the present accused cannot always be expected to appreciate the potentially deleterious effects of his wrongful actions in the same way as would his more educated counterparts, it is my view that every normal person, whether literate or un-alphabetic, is blessed with the basic sense to can distinguish between right and wrong. This is why these kinds of deeds are normally done under the cover of darkness or in remote places where there will be no eye-witnesses.
Thus, even as I am ready to accept the suggestion that the fact of his lack of education and sophistication might have the effect of lessening the moral blameworthiness of the accused herein, it is my view that he and others like him, need to be taught that there are always consequences to hurtful and indeed hateful actions that are committed against innocent and often defenceless people often in pursuit of satisfaction of pure unadulterated lust and nothing else. To this end, I can only echo the sentiments of my brother Monapathi J in Tonya’s case (supra) where he had this to say in relevant parts:-
“The rampancy of sexual offences is indicative of the need for sentences on the culprits which will serve as lessons (not only to them but also to potential offenders) of the social monstrosity of these offences.”
Further, it is my view that it does not take education for one to know that to use force and violence against other human beings is a terrible and unjustifiable thing. I have already stated that every member of society looks up to the Courts for the protection of the vulnerable and to censure and punish crime. I most certainly have the duty to fiercely guard and promote the rule of law, not to mention winning back the confidence of the public in the criminal justice system which has steadily been eroded over time.
It is on the basis of all these reasons that I found that the accused should be sentenced to imprisonment for a period of ten (10) years. This is the minimum prescribed by the statute. Had I not taken the mitigating factors into account I would have definitely imposed a much higher sentence because sexual offending deserves the most serious of punishments with or without any prescribed minimum sentences.
In my opinion, incarceration for a year and three (3) months which he has already spent in gaol is far too lenient and not commensurate with the offence for which he has been convicted. His discharge is therefore definitely out of the question. However, it is also my view that it is only fair that this period should be deducted from the ten (10) years of his sentence so that effectively it will be reduced to that of imprisonment for a period of eight 8 years and nine (9) months. I so order.
For the Crown : Mr. Fuma
For the Defence : Mr. Lephuthing
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law