Director of Public Prosecutions v Keresiane and Others (C of A (CRI) 3 of 8) [2008] LSCA 18 (17 October 2008)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru C of A CRI ( ) 3/08 In the matter between : DIRECTOR OF PUBLIC PROSECUTIONS and NTABEJANE KERESIANE RESPONDENT KHONTSI KERESIANE RESPONDENT SEHLOHO HLONGOANE RESPONDENT CORAM : RAMODIBEDI P , APPELLANT FIRST SECOND THIRD SMALBERGER JA , MOSITO AJA , Heard : Delivered : October 2008 October 2008 Summary (3) three Criminal suspended for three law Murder charge – Sentence – years imprisonment - homicide on their own plea Respondents convicted of culpable Respondents sentenced to – years of which two and half ½) In addition respondents sentenced to On appeal the appellant taking the point that the trial Judge erred in treating culpable homicide as a minor offence and thereby ordering community service The Criminal Procedure and in addition to custodial sentence community service for a period of six months years (6) (3) – – (2 – , Evidence Amendment Act ) ( 1998 on community service interpreted . JUDGMENT RAMODIBEDI P , [1] On 1 December 2000, and at Ha Belo in the district of Butha Buthe Mamoeketsi Thuube - , “Mamoeketsi” had the ) ( indiscretion to surreptitiously bring her boyfriend Tsetsetso Motsamai ( “the deceased” into the home of her maternal ) cousins namely the first and second respondents who are , , , siblings without their consent Astonishingly as it turned out , . , , she proceeded to bathe while the deceased watched her from the comfort of a chair in the same room As fate would have . it the first respondent burst into the house at that point . , Admittedly incensed he enquired from the deceased what was , going on striking him with a stick even before the latter could , respond . [2] Pursuant to the attack on him by the first respondent the , deceased took to his heels with a whole crowd of villagers , chasing him amidst a hue and cry In the process he was , . severely assaulted He sadly died on the spot . It is common . cause that the respondents took part in the unlawful assault on the deceased . The post mortem report revealed that the - deceased’s cause of death was due to “several bodily injuries including intracranial haemorrhage injuries” . ( ) [3] Consequent upon this incident the respondents were , charged with the murder of the deceased Upon arraignment , . they all pleaded guilty to culpable homicide a plea which was , duly accepted by the Crown The trial court in turn returned a . verdict of guilty of culpable homicide The respondents were . sentenced to three (3) years imprisonment two and half ½) (2 years of which were suspended for a period of six (6) months on condition that they were not found guilty of an offence involving violence to the person of another during the period of suspension On all accounts then so far so good However , . . , and here comes the parting of ways between the protagonists in this case the court , a quo did not stop there It additionally . imposed community service on the respondents for a period of six (6) months It is this latter part of the sentence which is the . subject matter of this appeal . [4] The Crown is aggrieved by the trial court’s imposition of community service following a conviction of culpable homicide . In a nutshell , the Crown contends that the trial court erroneously treated culpable homicide as a minor offence punishable by community service . [5] It will thus be seen from the foregoing that the real question for determination in this appeal is the appropriateness or otherwise of community service following a conviction of culpable homicide involving an assault . Put differently is , culpable homicide a minor offence ? [6] It is convenient to pause at the outset and observe that community service was introduced in this country by the Criminal Procedure and Evidence Amendment Act ) 1998 ( “the ( Act” ). This Act confers jurisdiction on the courts to impose community service as an option to custodial sentences . Section is decisive in the determination of the instant matter . 4 It amends section 314 of the principal law by inserting a new section A in the following terms 314 :- 314“ A (1) than any of other offence other Where a person is convicted of a minor offence or any the offences specified in Schedule IV the court may instead of sentencing that person to imprisonment or detention suspend the sentence and order that person to perform community service , , , . Where the court wishes to impose the punishment of (2) community service it shall proceed in accordance with the Rules , made by the Chief Justice under Section A ” 320 . As can be seen , the section prescribes in plain and unambiguous language that community service applies to minor offences . By simple analogy community service is , decidedly inappropriate for serious offences . [7] For the avoidance of doubt the term “minor offence” is , defined in section of the Act as an offence for which the court 2 may pass sentence not exceeding months with or without an 18 option of a fine and which in the opinion of the presiding officer was committed under circumstances which mitigate the offence . [8] In casu it will be remembered that the trial court imposed , a sentence of three (3) years imprisonment albeit a partly , suspended sentence . Since such a sentence was patently beyond the months sentence stipulated in section 18 of the 2 Act it did not qualify as a minor offence in the first place even , on the trial court’s own approach Nor can anyone seriously . question the fact that in principle culpable homicide attracts a heavier maximum sentence than the months imprisonment 18 stipulated in section 2 of the Act But more fundamentally the . , seriousness or otherwise of the offence of culpable homicide may be gauged from the fact that it is essentially the unlawful and negligent killing of a human being . It is a competent verdict on a charge of murder Needless to stress that murder . is itself a Schedule IV offence for which community service is expressly excluded . [9] It is indeed correct to say that courts of law believe in the sanctity of human life . Section 4(1) of the Constitution of Lesotho ranks the right to life in the forefront of all fundamental human rights and freedoms . That in itself is a measure of the seriousness of offences relating to unlawful killing of human beings such as culpable homicide Viewed in . this context I have not the slightest doubt that in enacting , sections and 2 4 of the Act the Legislature did not intend to , include culpable homicide as a minor offence On the contrary , . I have come to a concluded view that this offence is in fact a serious offence for which community service is decidedly inappropriate That then is the short answer to the question in . this appeal . [10] The result is that the appeal is upheld The court aquo’s . order of community service imposed on the appellants is set aside This leaves each respondent to serve an effective six . (6) months imprisonment . ___________________ . M M RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL . I agree : ____________________ . J W SMALBERGER . JUSTICE OF APPEAL I agree : ____________________ . K E MOSITO . ACTING JUSTICE OF APPEAL For Appellants : For Respondents : Adv A T Fuma . . Adv C J Lephuthing . . 14