R v Khetha (CRI/S 7 of 89) [1989] LSCA 44 (28 April 1989)

CRI/S/7/89 IN T HE H I GH C O U RT OF L E S O T HO In the matter o f: R EX v LEJONE PASCAL IS KHETHA Before the H o n o u r a b le the Chief J u s t i ce Mr Justice B. P. C u l l i n an on the 28th day of April 1989 For the Crown : Mr S. P. S a k o a n e, Crown Counsel For the Accused : Mr W. C. M. Maqutu J U D G M E NT Cases referred to : (1 ) R v L e b u a j o a ng R a n k h e be C R 1 / S / 1 3 / 86 ( U n r e p o r t e d) (2) R v Jankie and Others C R I / R E V / 75 and 8 1 / 88 (Unreported) The accused was charged before the S u b o r d i n a te Court of the First Class for the Maseru D i s t r i ct with the rape of a t e n - y e a r - o ld girl. The accused pleaded guilty. He agreed with a s t a t e m e nt of facts which revealed a clear prima facie case The accused was a n e i g h b o u r, on f r i e n d ly terms with the child's f a t h e r, so that there is every likelihood that he was aware of the child's a g e, that is, as being less than 12 years of a g e, there being a p r e s u m p t i on of n o n - c o n s e nt at such an a g e: see the case of R v Lebuajoang Rankhebe (1 ). In any e v e n t, the statement of facts clearly revealed that the little girl did not consent to the gross a s s a u lt The - 2- accused raped the child t w i c e. She was m e d i c a l ly examined the f o l l o w i ng d a y. The d o c t or who c o n d u c t ed the medical e x a m i n a t i on was of the o p i n i on that t h e re w as "no strong e v i d e n ce of the use of f o r c e ". I m u st o b s e r ve that that o p i n i on is c o m p l e t e ly c o n t r a ry to the recorded d e t a i ls of the physical e x a m i n a t i on c o n d u c t ed by the d o c t o r. The s t a t e m e nt of facts leaves one in no doubt that force was u s e d. The learned trial M a g i s t r a te d e l i v e r ed a reasoned j u d g m e n t. Where an accused pleads guilty and agrees with a statement of facts r e v e a l i ng a prima facie c a s e, t h e re is no need for a M a g i s t r a te to d e l i v er a reasoned judgment as s u c h, but simply to enter a finding and c o n v i c t i o n. 1 imagine that the learned trial M a g i s t r a te d e l i v e r ed the j u d g m e nt in the present c a s e, in view of the c o m p l i c a t i o ns in the i n t e r - r e l a t i o n s h ip between the two o f f e n c e s, namely rape and d e f i l e m e n t. Having s u m m a r i z ed the s t a t e m e nt of facts the learned trial M a g i s t r a te recorded as f o l l o w s: "Legally a qirl under s i x t e en years of age has no consent to sexual i n t e r c o u r s e. I have t h e r e f o re got to the c o n c l u s i on that the Crown has proved that the accused is guilty of c o n t r a v e n i ng section 3(1) of t he P r o c l a m a t i on 14 of 1949. Women and Girls P r o t e c t i on P r o c l a m a t i o n. I c o n s i d e r ed the p r o v i s i o ns of section 187(1) (e ) t h a t; " (1) Any person c h a r g ed with rape may be found guilty of...(e) the s t a t u t o ry o f f e n ce of unlawful carnal k n o w l e d ge of a girl - 3- of or under a specified a g e ;" Verdict : Guilty of contravening section 3(1) of Proclamation 14 of 1949. Women and Girls protection P r o c l a m a t i o n ". When it came to p u n i s h m e n t, however, the learned trial Magistrate observed that the offence of rape attracted a minimum sentence of five y e a r s' imprisonment, but that the accused had been "convicted under a more serious offence in that it is unlawful carnal connection with defenceless young g i r l s ". The learned trial Magistrate then referred in careful detail to the case R v Jankie and Anor (2) wherein this Court advocated a "starting p o i n t" of a punishment of five y e a r s' imprisonment in dealing with the offence of rape, and indeed that Magistrates should commit to the High Court for sentence where their sentencing powers were inadequate. The learned trial Magistrate then very properly and carefully set out the reasons for committal t h u s: "I am of the opinion that six y e a r s' I took into imprisonment is inadequate punishment for the accused, as that is my maximum imprisonment j u r i s d i c t i o n. consideration that the accused was a first o f f e n d e r, a married man with three children; that he is a b r e a d w i n n er for his family. Court with its inherent powers to give this accused a suitable punishment if the conviction is in accordance with real and substantial j u s t i c e ". I therefore ask the High There seems to be some confusion here and it proves convenient to refer the learned trial Magistrate to the / ... - 4- Rankhebe (1) case. Statutory defilement is not more serious than rape. The maximum punishment for the former is six years's imprisonment: for the latter offence it is death. Having convicted the accused of defilement,the maximum punishment therefore was six years' imprisonment. That was within the learned trial Magistrate's jurisdiction and I do not appreciate therefore why the accused was committed to the High Court. For that matter, I do not understand why the learned trial Magistrate entered a conviction for a lesser offence. The accused was clearly guilty of rape. The question now arises as to whether this Court can substitute a conviction for the offence charged. The learned Counsel for the accused Mr. Maqutu submits that the Court has no such power. The learned Crown Counsel Mr. Sakoane concedes that such is the case. I am inclined to agree. The Court has power, of. course, to substitute a conviction for a lesser offence. But I doubt if it can substite a conviction for a more serious offence, even if the accused was originally charged therewith. The position is, therefore, that the accused stands convicted of the statutory offence of defilement, for which the maximum punishment is one of six years' imprisonment. Mr. Maqutu submits that the accused was very drunk. The offence was committed not once, but twice and there was a good deal of premeditation in the accused's actions. The learned trial Magistrate fully addressed herself to the question of drunkenness,and I do not see what I can add to what she said, I take into account, however, the fact that -5- the accused is a first o f f e n d e r. Nonetheless this is a bad case of d e f i l e m e n t, as M r. Sakoane s u b m i t s. The child was but ten years of a g e, intercourse took place not once but t w i c e. The accused was fortunate that he was not convicted of r a p e. Nonetheless I am confined by the restrictions of section 3 of the Women and Girls Protection P r o c l a m a t i o n. I take into account in p a r t i c u l ar that the accused has been in prison for some five m o n t h s. In all the c i r c u m s t a n c es I sentence him to imprisonment for four (4) years with effect from the date of this o r d e r. Delivered at Maseru This 28th day of A p r i l, 1 9 8 9. (B. P. C U L L I N A N) CHIEF JUSTICE