R v Letsela (CRI/A 1 of 98) [1998] LSCA 41 (11 May 1998)

IN T HE H I GH C O U RT OF L E S O T HO CRI/A/1/98 In the matter between:- M O T S E A RE L E T S E LA vs R EX R E A S O NS F OR J U D G M E NT Delivered by the Honourable Acting Mr Justice S. N. Peete on the 11th May 1998 T he appellant hereinafter referred to as the accused had originally appeared before the Leribe Subordinate Court charged with theft of Ml 4,423 the property or in the lawful possession of Standard Bank Maputsoe, it being alleged that during the period 26th January 1994 to September 1997 the accused withdrew several monies from the Standard Bank Maputsoe. T he accused pleaded guilty to the charge. The outline of facts by the Senior Public Prosecutor - Mr Lebeta - indicated that the accused had realized that he and one Sebota Motseare shared a c o m m on n a me - Motseare. This Sebota Motseare used to work in the Republic of South Africa at N A M P AK P E N S I ON under the Old Mutual Insurance C o m p a n y. U p on retirement he had to receive his retirement pension cheques through Standard bank, Maputsoe. It w as stated by the prosecutor that whereas Sebota Motseare's account n u m b er w as 049014689831, the cheques were paid into the account of one Malomile Letsela w h o se account w as 049015545291. Malomile Letsela w as thereafter influenced by the accused to withdraw the said monies whose depositing into her account has mysteriously not been explained. It could have been a mistake or a fraud involving the bank employees. T he accused is stated by the prosecutor to have told Malomile Letsela that such deposits were god-sent by their ancestors! Since no evidence w as led, one can only surmise that Malomile w as going to be called as an accomplice. The total monies thus illicitly withdrawn amounted to M14.423.00. Subsequent inquiries mounted after the lawful recipient Sebota Motseare complained revealed the complicity of the accused and Malomile Letsela. They k n ew that they were not entitled to receive such monies from the Standard B a nk Maputsoe. The accused admitted all these facts as outlined by the prosecutor and the Magistrate M. Moahloli found h im guilty as charged (S.240 of the Criminal Procedure and Evidence Act of 1981). Prosecutor informed the Court that the accused had no previous convictions. T he accused, w ho w as unrepresented, mitigated on his o wn behalf. The learned Magistrate imposed a 6 years imprisonment sentence. He has appealed to this court only against sentence. The learned Magistrate did not give reasons w hy he imposed six years imprisonment on the accused w ho had pleaded guilty thus showing remorse. He had no previous convictions. Whilst it is trite law that sentence is pre-eminently a matter of judicial discretion of the trial court, and the appellate court will only interfere where the discretion has not been judicially exercised for example where the sentence is excessive or too lenient or where the it is otherwise inappropriate ( Matiea and Another vs R ex - 1979 (1) L LR 139 at 144 - 6; S vs Anderson 1963 (3) SA 494 at 495 R vs Rabie - 1975 (4) SA 855) the Court must always state its reasons for the sentence it imposes.. In the case of Mathabo Moiela vs R ex 1977 L LR 321 at 324 the late M o f b k e ng J. states as follows:- "In this particular case, this court is totally in the dark as to h ow the court a quo arrived at the sentence it did because no reasons have been filed. This court has said before that it is of paramount importance that the accused person should k n ow the reasons for the imposition of his sentence. These reasons must not be stated after the accused has noted an appeal but w h en the sentence is actually being imposed." (See also R ex vs Kalake 1977 L LR 224). I am of the opinion that though the amount embezzled by the accused and his accomplice is quite substantial, a sentence of imprisonment would not suit the justice of the case; rather restitution of the stolen monies to Sebota Motseare would serve the interests of the case better. Imprisonment, bad as its effects are, would defeat restitutive measures. I therefore reduce the sentence of six years imprisonment to three years imprisonment which are wholly suspended for three years on condition that the accused is not convicted of an offence involving dishonesty during the period of suspension and in terms of Section 8(1) (c) of the High Court, I send this case back to the learned Magistrate with the following instructions:- "That in terms of the provisions of Section 324 (2) of the Criminal Procedure and Evidence Act of 1981, Sebota Motseare or his representative must be subpoenaed to appear before the trial Magistrate and to apply for the restitution of the stolen monies. I m a ke this order because as it w as decided by Huggard CJ in the old case of R ex vs Liau M o h a pi Gadebe, 1926 - 53 H C T LR III where he stated that the Court has no power to order compensation (restitution) unless applied for by the injured party or to order imprisonment in the event of failure to pay compensation." The learned Magistrate is ordered to s u m m on the accused and Sebota Motseare for the purpose of this aspect of restitution. S . N . P E E TE ACTING JUDGE