CRI/A/72/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between -

Makhala
Tsatsi Appellant

and

REX

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L Kheola on the 30th day of November,
1987.

The
appellant was employed as a clerk by a firm of lawyers called Nthethe
& Co. She was stationed at Mafeteng. One of her duties
was to
receive monies from the clients of the firm and to deposit them in an
account at the Lesotho Bank at Mafeteng. During the
period from the
4th June, 1986 to the 8th March, 1987 the appellant had a general
deficiency of M9,260-00.

In terms
of section 129 of the Criminal Procedure and Evidence Act 1981 the
chrage sheet was in order because it provides that in
a charge for
theft of money or for the theft of any property by a person entrusted
with the custody or care thereof, the accused
may be charged and
proceeded against for the amount of a general deficiency,
notwithstanding that the general deficiency is made
up of a number of
specific sums of money or of a number of specific articles, the
taking of which extended over a space of time.

The
appellant pleaded guilty to the charge and was sentenced to two (2)
years' imprisonment. The evidence was that when her

2

employer
discovered that there was something amiss, the appellant did not
waste any time but admitted or confessed that she had
been pocketing
monies which she received from her employers clients Her modus
operandi was that when she received money from a
client she pocketed
for herself a bigger amount than what she deposited in the bank on
behalf of her employer. She was arrested
and taken to a magistrate
where she made a formal confession in which she stated that she took
the money which is the subject matter
of this charge and used it for
her own benefit. She bought furniture, clothing for herself, opened a
savings account in which she
deposited M120-00 and bought some other
articles such as a wrist-watch and shopping bags.

The
appellant was a young woman of nineteen (19) years of age at the time
of the commission of the offence, she is unmarried and
has no
children. She is a first offender. The appeal is against sentence
only on the single ground that it is too harsh and induces
a sense of
shock. Mr. Mda, counsel for the appellant submitted that in passing
sentence the Resident Magistrate failed to take
into account a number
of mitigating factors One of such factors is that the appellant
showed contrition from the onset by telling
the truth to the
complainant that she had used the money for her own benefit, and by
making a confession to a magistrate and by
finally pleading guilty to
the charge.

He
further submitted that the court a quo failed to take into account
that the appellant was a first offender. I agree with this
submission
because in her reasons for sentence the learned Resident Magistrate
took into account only three personal circumstances,
namely, that the
appellant was not working, that she was not married and that she was
nineteen years old. The fact that the appellant
is a first

3

offender
ought to have been taken into account and to have been given a
weighty consideration. (See S. v. Muller, 1962 (4) S.A.
77 (N), S. v.
Pillay, 1968 (3) S.A. 21 (N) at p.24, Mojela v. Rex, 1977 L.L.R.
321). It was a misdirection on the part of the Resident
Magistrate
not to give any consideration to the fact that the accused was a
first offender. As Van Winsen, A.J.A said a S v. Fazzie
and others,
1964 (4) S.A. 673 (A.D.) at p. 684

"It is trite law that the determination of a sentence in a
criminal matter "is pre-eminently a matter for the discretion
of
the trial Court" In the exercise of this function the trial
Judge has a wide discretion in deciding which factors - I here
refer
to matters of fact and not of law - he should in his opinion allow to
influence him in determining the measure of the punishment.
See R. v.
S , 1958 (3) S.A 102 (A.D.) at p 106. This Court will not readily
differ from the court a quo in its assessment either
of the factors
to be had regard to or as to the value to be attached to them where,
however, the dictates of justice are such as
clearly to make it
appear to this Court that the trial Court ought to have had regard to
certain factors and that it failed to
do so, or that it ought to have
assessed by value of these factors differently from what it did, then
such action by the trial
court will be regarded as a misdirection on
its part entitling this Court to consider the sentence xxxxx

I am of
the opinion that in addition to the misdirection I stated above the
court a quo ought to have assessed the factor of age
of the appellant
differently from what it did. The appellant is only nineteen years
old and the degree of temptation ought to have
been taken into
consideration. She apparently manned that office alone and was
occasionally visited by someone from Maseru The
amount of money she
received was subtantial and made the temptation very great.

For the
reasons stated above the appeal partially succeeds to the extent that
the sentence imposed by the court a quo is set aside
and I substitute
therefor a sentence of Twelve (12) months' imprisonment.

J.L.
KHEOLA

J U D G
E.

30th
November, 1987.

For
Appellant - Mr. Z. Mda

FOR
Respondent - Mr. N. Qhomane