Khoptjoa v R (CRI/A 16 of 2001) [2002] LSCA 10 (3 April 2002)

CRI/A/16/2001 IN T HE H I GH C O U RT OF L E S O T HO In the matter between J A BU K H O P T J OA A P P E L L A NT and R EX R E S P O N D E NT J U D G M E NT Delivered by the Honourable M rs Acting Justice A . M. Hlajoane on 3rd D ay of April, 2002 T he Appellant had been tried at the Magistrate's Court Leribe, charged with three counts of Housebreaking with intent to steal and theft. He pleaded guilty to the first two counts and not guilty to the third count. T he Public Prosecutor accepted the pleas to the first t wo counts and outlined the facts. T he accused admitted the facts and w as found guilty as charged on both counts. T he accused happened to be a first offender and w as thus given chance to put his plea in mitigation of sentence. A sentence of two years imprisonment for each count w as given and both sentences were to run consecutively. It is against that sentence that the appeal is lodged. T he m a in ground for appeal has been that the Magistrate has failed to give reasons for the stiff sentence she imposed, thus resulting in a grave irregularity. Counsel for the Respondent concedes that in fact an irregularity occurred as Magistrate gave no reasons for her sentence. T he question n ow that has to be asked is whether such irregularity w as so grave as to warrant the acquittal of the appellant? To answer this question one has to look at the facts of the case and other factors surrounding the sentences that have been imposed. T he Appellant w as charged with three counts of housebreaking with intent to steal and theft. He pleaded guilty to the first two and w as convicted and sentenced. On count one the following property w as stolen after the accused had broken the door and gained entry; (i) Television set (ii) Tempest Radio (iii) 5 Litres of Relaxer (iv) Watch. Out of that property only the television and watch were recovered. No explanation w as given about the remaining items not recovered. In count two , the door and the back w i n d ow were opened to gain entry and the following property stolen; (i) Tempest Radio (ii) 9 pairs of shoes (iii) 1 pair of trousers and only one pair of shoes w as recovered as the Appellant w as wearing them w h en he w as arrested and the complainant identified them. Also the Tempest Radio w as found. No explanation w as ever given about the remaining property which has not been recovered. T he offences were committed to two different complainants at different dates and places. N ot all the property has been recovered and Appellant volunteered no information according to the record, as to what in fact happened with the other property. T he Appellant w h en so sentenced to two years on each count, and sentences being m a de to run consecutively, w as aged but 20 years. There are numerous decisions of this Court which s h ow that, in passing sentence on a relatively youthful accused, there are factors which have to be taken into consideration; 1. That sentence is pre-eminently a matter for the trial Court. 2. That an appellate Court should not lightly interfere with the discretion of the trial Court if judicially exercised. 3. That the youth of an offender is only one of m a ny factors that should be taken into account in assessing sentence. 4. That a first offender should not expect a guarantee that a custodial sentence will not be imposed. See M a k h e t ha M p h u t l a ne vs R ex 1980 (2) L LR 338. It used to be the practice obtaining at the Magistrate's Courts that where an accused has pleaded guilty to the charge and accepted an outline of facts in passing sentence it w as not mandatory to give reasons for sentence. Reasons would only be given where such accused person has noted an appeal. E v en at present, the practice still stands. But in our present appeal the Magistrate gave no reasons for her sentence even after the appeal has been noted. T he case of Matia and Another vs R ex 1979 (1) L LR 139, is for the proposition that, there is no rule of law that a first offender is entitled as of right to special privileges. Being his first offence is merely one factor amongst others that the Court ought to take into account. That his individual interest must be weighed against for example the nature of the offence, protection of the public and the prevalence of the crime of which he has been convicted. I have already s h o wn that I subscribe to the principle that the question of sentence is pre-eminently a matter within the.discretion of the trial Court, but it would be hard to believe that such discretion has been judicially exercised in the absence of any reasons for the sentence given. Regard being had to given relevant considerations, the Court would be in a position to say yes, the discretion has been judicially exercised, and this must ex facie appear on the record. S. vs A n d e r s on 1963 (3) S. A. 494 T he Appellant at the trial stage in his plea in mitigation of sentence showed that, he w as a student at Maputsoe and doing F o rm C. That both his parents were still alive but unemployed. He is the eldest and has three other siblings after him. T he one coming after him w as the only one attending school, whilst the other two born 1987 and 1997 respectively have never been to school. His grand mother is the one paying for his fees. Appellant w as 26 years old last year. He had also pleaded guilty thus saving the Court's time. T he Magistrate never indicated on the record whether she considered the plea in mitigation by the accused. T he Court of Appeal also showed its displeasure in the case where the trial Judge failed to take into account s o me of the relevant considerations in passing sentence. See M o t e n a t e na vs R ex 1995-96 L LR a nd LB 267. T he trial Judge in passing sentence had only remarked thus "drinking having been found to contribute extenuating circumstances, the accused is sentenced to 16 years imprisonment." There had been no indication on record that the trial Judge considered s o me t wo relevant considerations of accused in exercising his discretion, that of being a first offender and also his tender age. T he sentence w as altered by suspending six years conditionally. T he C r o w n, being the Respondent conceded that it w as irregular for the Magistrate to have disregarded the plea in mitigation in her sentence but shows that no miscarriage of justice resulted therefrom. On the other hand the Respondent submits that the Magistrate took all the circumstances of the case into consideration, I don't k n ow where the Respondent gets the idea that there w as such a consideration, yet the record is silent. He is making a naked assumption. In the absence of an indication from the record that the trial Magistrate considered the mitigation by the accused, I am not loathe to say that there has been a miscarriage of justice. It w as the fundamental entitlement of the appellant to have k n o wn w hy such sentence w as given, and w hy such sentences were m a de to run consecutively. In the result, the sentences in count 1 and 2 are altered to read; T wo years imprisonment on each count and the sentences to run concurrently. There has been one other important aspect of this case. T he charges against the appellant were three and after pleading guilty to the first two and not guilty to the third, no separation of trials w as ordered nor any pronouncement on that count. T he Appellant never raised that on appeal except by just making a remark in passing through his counsel without persuing it any further. I will mero motu deal with that aspect and remit the case on that count alone to the trial Court to m a ke a pronouncement on it. A . M. H L A J O A NE A C T I NG J U D GE For Appellant: Mr Nathane For Respondent: Mr Molokoane