R v Mokone (CRI/T 54 of 2000) [2000] LSCA 89 (9 May 2000)

1 C R I / T / 5 4 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter between R EX v P U L A NE C A R O L I NE M O K O NE For the C r o wn : M r. H. L o uw - instructed by the Director of Public Prosecutions For the Accused : M r. B. Sooknanan J U D G M E NT D e l i v e r ed by t he H o n o u r a b le M r. J u s t i ce T. M o n a p a t hi on t he 9th d ay of M ay 2 0 00 This w as a s u m m a ry trial. T he Accused w ho w as an adult female a nd Senior D a ta Controller at the C o m p u l s o ry Savings Section of the Treasury D e p a r t m e nt of Lesotho w as charged with fourteen (14) counts of the theft alternatively, of fraud of monies which added to the total s um of O ne H u n d r ed a nd F o ur T h o u s a n d, O ne H u n d r ed a nd Six Maloti a nd Sixty O ne Lisente ( M 1 0 4 , 1 0 6 . 6 1 ). T he c h a r ge w as explained to her a nd her C o u n s el c o n f i r m ed that she u n d e r s t o od the c h a r ge of Eleven C o u n ts the three of w h i ch (2,8 a nd 10) h ad b e en w i t h d r a w n. S he pleaded guilty to the theft, as charged. M r. L o uw outlined the evidence that w o u ld h a ve b e en tendered. T h is outline the A c c u s ed a nd her C o u n s el c o n f i r m ed as correct. T he C o u rt then entered a plea of guilty to the eleven (11) counts. T he C o m p u l s o ry Savings A ct 26 of 1 9 74 (the A c t) provided for m o n t h ly deduction of an a m o u nt equal to 5% f r om the salary of civil servants in the e m p l oy of L e s o t ho G o v e r n m e nt (the G o v e r n m e n t ). S u ch funds w e re to be paid into a special savings a c c o u nt in the n a me of e a ch individual Civil Servant by the A c c o u n t a nt G e n e r al of this country. S u ch a m o u n ts could only be w i t h d r a wn after five (5) years h ad elapsed f r om the date of the first deduction. C o m p u l s o ry Savings O r d er 18 of 1 9 92 (the O r d e r) a m e n d ed the A ct N o . 2 6 / 74 to provide that all deductions a nd interest w o u ld be repayable to e a ch Civil Servant after three (3) years h ad elapsed f r om the date of the first deduction. Early withdrawals w e re allowed w h e re the participant to the C o m p u l s o ry Savings S c h e me (the s c h e m e) passed a w a y, w as female a nd married, b e c a me ill or infirm, retired or resigned f r om the Civil Service. T he s c h e me w as c o m p u l s o ry for all civil servants a nd voluntary for e m p l o y e es of parastatal organizations as s a m p l ed on p a ge 45 of c o m p i l ed b u n d le of exhibits collectively called Exhibit " A ". No separate b a nk accounts w e re o p e n ed for e a ch individual participant a nd all contributions w e re paid into a single b a nk a c c o u nt whilst the T r e a s u ry D e p a r t m e nt m a i n t a i n ed a separate ledger, recording a m o u n ts d ue to participants. Contributions by civil servants automatically d e d u c t ed f r om their salaries a nd u p d a t ed in the records of the C o m p u l s o ry Savings D e p a r t m e nt contributions f r om e m p l o y e es of parastatal organization w e re paid o v er to the s c h e me by c h e q ue d r a wn on the b a nk a c c o u nt of the relevant parastatal a nd a c c o m p a n i ed by a contributors' list. T he s c h e m e 's records w e re then m a n u a l ly u p d a t ed in the C o m p u t er D e p a r t m e nt a nd w h i ch u p d a t ed information w as verified by the d e p a r t m e n t. All claims, w h e t h er arriving automatically after three (3) years or entered m a n u a l ly w e re verified by the D e p a r t m e n t. T he d e p a r t m e nt t h en c o m p i l ed a list of all claims w h i ch then inputted by personnel of the C o m p u t er D e p a r t m e n t. A transaction list w as t h en printed a nd reviewed by the D e p a r t m e n t. S u b s e q u e nt to s u ch review, the relevant c h e q u es w e re printed out in the C o m p u t er D e p a r t m e n t. T he printed c h e q u es w e re t h en returned to the D e p a r t m e nt for review a nd despatched to the G o v e r n m e nt d e p a r t m e n ts a nd parastatals/organizations w h e re claimants w e re e m p l o y e d. T he A c c u s ed w as a Senior D a ta Controller in the C o m p u t er d e p a r t m e nt h er responsibility being, inter alia, the verification of all data inputs entered by data captive operations. H er duties included the following: T he supervision of data controllers a nd data captive operations. S e c o n d l y, the d e v e l o p m e nt a nd m a i n t e n a n ce of data control capturing a nd operating procedures. T h i r d ly the furnishing of technical g u i d a n ce to data controllers. Fourthly, the d e v e l o p m e nt a nd m a i n t e n a n ce of a security system for specialized stationary a nd lastly the p e r f o r m a n ce of other duties as required by the O p e r a t i o ns Supervisor. W i t h in the scope of h er said responsibilities the A c c u s ed c o m m i t t ed the offences charged. S he p r o c u r ed c h e q u es f o rm the s c h e me payable to the n a m es of persons not entitled to received p a y m e nt f r om the s c h e m e. T he list of s u ch n a m e s, c h e q ue n u m b e rs a nd a m o u n ts in all the eleven (11) counts w as c o n t a i n ed in A n n e x u re " A" to the indictment. H a v i ng h a n d ed the said c h e q u es to s u ch persons, w h o, after having deposited the said c h e q u es into the b a nk a c c o u nt w h e re they m et with p a y m e nt by the G o v e r n m e n t, then returned funds to the A c c u s e d. T he n u m b e rs a nd the a m o u n ts of those c h e q u es w e re as aforesaid a nd as stated in A n n e x u re " A ". A nd or alternatively A c c u s ed deposited the said c h e q u es into h er o wn b a nk a c c o u nt w h e re they w e re m et with p a y m e nt formidably by the G o v e r n m e n t. T he c h e q u e s, deposit slips, copies of b a nk ledger entries, a nd entries in pass b o o ks w e re formidably d o c u m e n t ed in Exhibit " A ". T he A c c u s ed therefore unlawfully a nd intentionally stole the said a m o u n ts of m o n e y, the property of, or in possession of the G o v e r n m e nt of L e s o t ho a n d / or the Central B a nk of Lesotho. C o u n s el n e e d ed to prepare for the addresses on sentence a nd the matter w as therefore p o s t p o n ed to the 12th M ay 2 0 0 0. T. M O N A P A T HI J U D GE 9th M a y, 2000 S E N T E N CE This is a b o ut the sentence of the A c c u s ed w ho has already b e en f o u nd guilty on the 9th M ay 2 0 0 0. First of all I m u st c o m m e nt about the degree of efficiency exhibited a nd the manifestly g o od preparation m a de by the t wo C o u n s e l. It is after a l o ng t i me that we h a ve h ad s u ch preparation in this C o u rt m o re especially in criminal p r o c e e d i n gs w h i ch w o u ld s u ch as this o ne involving a lot of d o c u m e n t a t i o n. T h is bring in a lot of fresh air w h i ch r e m i n ds of the d a ys g o ne past w h en things u s ed to be d o ne in this fashion. I w i sh to c o m m e nd C o u n s el a nd they c an rest assured that the A c c u s ed will benefit t h r o u gh this task of h er sentence, h a v i ng b e en m a de easier. S e n t e n c i ng is a very difficult exercise b e c a u se o ne will n ot be assisted by a ny guidelines or grid w i th w h i ch o ne w o u ld w a nt to c o n f o r m. T h at is w hy it is a l w a ys a m a t t er of judge's discretion. T h e se guidelines w h e re they h a ve b e en d e v e l o p e d, are f o r m u l a t ed in o r d er to p r o m o te a set of prescribed principles, the m o st i m p o r t a nt of w h i ch is that a sentence m u st be proportionate to the offence c o m m i t t e d. In d e t e r m i n i ng or arriving at this proportionality regard m u st be h ad to the seriousness of the offence, the social h a rm caused d e p e n d i ng on the different offences. T he sentence w o u ld h a ve to strive t o w a r ds o p t i m um c o m b i n a t i on of restoring rights to victims, protecting society a nd rehabilitating the offender. It is granted that in the use of the judge's discretion there is a nd there c an be considerable inconsistency in sentencing decisions. T h is is c a u s ed by the a b s e n ce of the guidelines a nd the fact that e a ch individual judge's acquires the practice as he goes a l o ng on the j ob a nd will invariably follow certain personal inclinations including prejudices. H e n ce mistakes m a de before are perpetrated as j u d g es n o r m a l ly follow s o me informal precedents d e v e l o p ed by their predecessors. I m u st say that I h a ve b e en quite impressed a b o ut the personal circumstances of the A c c u s ed person. I am satisfied that despite the poverty in h er u p b r i n g i ng she c o m es f r om strong roots a nd a upbringing that w as intended to bring a b o ut an upright citizen of this country. S he also h as a school g o i ng child a nd h er sister a nd the sister's child thus perpetuating Accused's "remorseless struggle" since her childhood. A nd I felt she m ay h a ve deviated late in life w h en she should not h a ve d o ne so. H er deviation w as for a period of about twenty (20) m o n t hs up to w h en her criminal activity w as unearthed. T he situation, at present, is that the Accused has c o m m i t t ed a serious crime. It is a crime w h i ch c an fairly be called a crime of sophistication a nd organization. Of course she w as well placed, as the j u d g m e nt recorded, to h a ve b e en able to marshal w h at resulted in no m e an loss to Lesotho G o v e r n m e n t. S he h ad such duties as h a ve been described in the j u d g m e nt a nd she w as positioned to organize that s c h e me w h e re she dealt with lists of beneficiaries, c o m p u t er records, cheques a nd dispatch of cheques. W h en she deposited those cheques a nd disbursed funds to herself a nd to undeserving others w ho were part of the s c h e me a nd w ho benefited f r om the proceeds, it w as a well thought out c a m p a i g n. I w as satisfied that the Accused benefited m o re than others. This w as natural in the circumstances. T he particulars of those eleven (11) counts with w h i ch the A c c u s ed w as convicted have b e en outlines in the charge sheet a nd in the C r o wn Counsel's outline. T he total s um stolen has a m o u n t ed to M 1 0 4 , 0 0 0 . 0 0. T h ey m o n ey w as stolen over a period of twenty (20) m o n t hs or so. Indeed the other m o n e ys w e re disbursed to the Accused's other friends in the s c h e m e. I remain satisfied h o w e v er that the Accused w as the principal thief or o ne of the principal thieves. This theft has resulted in a loss to Lesotho G o v e r n m e nt w h i ch an actual a nd direct prejudice suffered by the G o v e r n m e nt in a trend of thievery w h i ch w e re r a m p a nt a nd involved as it w as suggested other big thieves w ho h a ve been convicted already a nd w ho w e re this Accused's superiors. T h o se could rightly be taken to have been b ad a nd w r o ng examples to their subordinates. A nd that exposed the soft underbelly of the Treasury's vulnerability w h i ch s h o w ed that a lot of planning c an m a ke m o n ey easy to steal f r om G o v e r n m e n t. T h is A c c u s ed w as part of the organization w h e r e by theft has b e en a nd it is still a p r o b l e m, in w h i ch people in w h om trust w as put h a ve breached such trust. T h is A c c u s ed w as o ne of them. In w h i ch theft people w e re mostly motivated by greed. This A c c u s ed w as o ne of t h e m. Indeed the A c c u s ed has no formal (previous) convictions. I am satisfied that she m u st h a ve b e en tempted along the w a y, to h a ve desired these contributions to the C o m p u l s o ry Savings S c h e me in w h i ch people contributed. A nd indeed she admitted guilt. T he fact that she did not have a ny previous convictions a nd this fact of her having admitted guilt I h a ve noted. S he m u st h a ve b e en a w a re h o w e v er that her conduct w o u ld occasion loss to g o v e r n m e n t, the state a nd the people of this country. I noted that there w e re mitigating factors. T he first o ne w as the o ne that she has admitted guilt. It is difficult to speculate as to w hy she did so except that it is safe to infer that she did so as a result of contrition a nd remorse, these which m u st have motivated her. T he other aspect is that there h a ve b e en this long period of time over w h i ch the threat of conviction or of this proceedings having h u ng over her. T h at she h ad to withstand that kind of anxiety. T h at at that time or m o st of that time she w as out of w o r k, m o st of the time on half p ay salary, pending the finalization of these proceedings. I have spoken about various factors I w o u ld say are aggravating, those that d e m a nd that this accused person m u st be punished in a demonstrable w a y. Because the Courts in punishing people w ho have b e en convicted are performing a social function. It is also a social duty in that the c o m m u n i ty w o u ld like to see that people are punished in the right w a y, that sentences are not nonsensical. As it is said sentences should not be disturbingly inappropriate, u n d u ly lenient or u n d u ly harsh a nd merciless, thus risking the bringing of the administration of justice into disrepute a nd w o u ld incur the indignation of the society. T h ey m u st be realistic. T h at is w h at the society d e m a n d s. B ut in d o i ng so we m u st p ay attention to the nature of the crime, the interests of the offender a nd such circumstances has pointed out the beginning of his address w h i ch I cannot ignore. T h e re are certain requirements about p u n i s h m e nt or sentencing that is the intended effect of p u n i s h m e nt as I h a ve indicated earlier on. T h at there m u st be deterrence, a certain a m o u nt of retribution a nd then that an accused person m u st be seen to be rehabilitated in the end. A combination or a balance of all those attributes is a useful c o m b i n a t i o n, but very m u ch difficult to achieve. B ut a ny C o u rt w o u ld ideally w a nt to achieve all those things. It has b e en said that according to m o d em sentencing principles sending people to prison is to be seriously discouraged. It is suggested that convicted people w ho are sent to prison will be contaminated. In that he or she will m e et unsavoury characters in prison, people w ho are hardened a nd w ho will w r o n g ly influence the convicted person f r om g o od w a ys It is contended that this risk c an be avoided by imposing other sentences than imprisonment. T h e se include suspensions, postponements, reprimands a nd warnings. T h e se further include C o m m u n i ty Service Sentence in petty offences. T h e se all m a ke sense. B ut they h a ve to acknowledge that the sentence of imprisonment, its policy a nd its motivation are still to be found in the statute book. It is a sign by w h i ch the Courts demonstrate the seriousness with w h i ch they take the crime c o m m i t t ed (which are often serious) a nd h ow heavy p u n i s h m e nt should be in appropriate cases. So that demonstrably realistic punishments will be seen to have been i m p o s ed or given. C o m i ng b a ck to this A c c u s e d. S he w as at the n e r ve centre w h e re a severe d a m a ge w as d o ne to the property of g o v e r n m e n t. To say that she w as o ne of the m a in s c h e m e rs is appropriate in a r a m p a nt kind of c r i me w h i ch is fashionable in this country. T h at is w hy I c o m m e n t ed that it s e e m ed to be easy to steal f r om g o v e r n m e n t. T h at the C o u r ts will punish p e o p le w ho do these things m u st be d e m o n s t r a t ed in the sentences given to offenders w ho o u g ht to be sentenced. I repeat that there are a f ew things that stand in the stand of this A c c u s ed w h i ch I h a ve s p o k en a b o ut earlier a nd w h i ch I n e ed n ot repeat t h e m. O ne of t h em w as a b o ut the strong roots of the A c c u s e d. If she h ad m a de a s w o rn statement in mitigation she m ay h a ve b e en able to impress me e v en further or she m ay h a ve n ot able to do so. I h a ve in the result considered the submissions m a de by b o th C o u n s el b o th w ho h a ve impressed m e. C o m i ng b a ck to w h e re I b e g un the neatness w i th w h i ch these proceedings w e re c o n d u c t ed continues to impress m e. A nd I h a ve said it will benefit this Accused. It is s o me kind of e n c o u r a g e m e nt w h i ch I w a nt to c o n v ey to the Director of Public Prosecutions w ho I c o m m e n d. In a similar w ay I feel e n c o u r a g ed that this kind of w o rk will be with us all the time in the future as it is a desirable thing. I sentenced the A c c u s ed to i m p r i s o n m e nt for a period of Eight years without option of a fine on e a ch count. T h r ee (3) of those years I s u s p e n d ed for five (5) years on condition that the A c c u s ed w o u ld not be f o u nd guilty of c r i me involving dishonesty. T he sentences are to r un concurrently. T. M O N A P A T HI J U D GE 12th M ay 2000