R v Richards (CRI/T 6 of 95) [2000] LSCA 37 (2 February 2000)

CRI/T/6/95 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: R EX vs P A LO R I C H A R DS J U D G M E NT Delivered by the H o n o u r a b le M r s. Justice K. J G u ni on the 2 nd day of February 2 0 00 T he a c c u s ed is c h a r g ed w i th three counts. Firstly, this a c c u s ed is c h a r g ed w i th a c r i me of m u r d er of o ne M A M O O K HO S K O Z A N A. It is alleged that on the night of the 5th April 1 9 94 this a c c u s ed s t a b b ed the d e c e a s ed w i th a knife on her left e l b ow joint a nd also on h er right a r m. T he d e c e a s ed died the s a me night f r om those injuries. S e c o n d ly the a c c u s ed is c h a r g ed w i th a t t e m p t ed m u r d er T L H O NG w h om he unlawfully a nd of o ne T L A LA w i th intent to kill he stabbed at the b a ck w i th a knife. Thirdly the a c c u s ed is c h a r g ed w i th assault c o m m on of o n e M O L A H L E HI N Y A I SI In the o p i n i on of the doctor w ho carried o ut the p o s t m o r t em e x a m i n a t i o n, t he d e c e a s ed could n ot h a ve died f r om these w o u n ds if s he received i m m e d i a te m e d i c al treatment. T he a c c u s ed h i m s e lf after stabbing h er left h er to die. He did not bother to l o ok for help for h er or attempt to take h er to the hospital. It is t he finding of the doctor w ho carried out t he p o s t m o r t em e x a m i n a t i on that t he d e c e a s ed died f r om those w o u n ds p e r h a ps d ue to excessive bleeding. It is the c r o wn case that the d e c e a s e d, h er b o y f r i e nd a nd their m a le c o m p a n i o n, T L A LA T L H O NG w e re w a l k i ng together a l o ng t he r o ad that night w h en they p a s s ed this a c c u s ed on the w a y. T h ey w e re f r om a s h e b e en at M O T A M A R A 's w h e re they h ad b e en drinking. T h ey w e re m o d e r a t e ly d r u n k. M ay be n ot exactly to the s a me d e g r ee for all three. All the three p e o p le [deceased, h er boyfriend a nd their c o m p a n i o n] lived in t he village of M A N K O A N E NG w h e re this s h e b e e n, M O T A M A RA is also located. T h is a c c u s ed also live in the s a me village a nd in the n e i g h b o u r h o od of M O T A M A RA shebeen. He is personally k n o wn to the c r o wn witnesses prior to this incident. Shortly after p a s s i ng the a c c u s ed w h e re he h ad r e m a i n ed stationary, the c r o wn witness, M O L A H L E HI T H A BO N Y A I SI heard their c o m p a n i on T L A LA T L H O NG cry out, saying "here! s o m e o ne is stabbing m e. " I m m e d i a t e ly T L A LA T L H O NG ran passed P W 7- M O L A H L E HI T H A BO N Y A I S I, w ho s aw that T L A LA T L H O NG h ad b e en injured as he ran p a s s ed h i m. T h is witness turned b a ck to see w h at w as chasing T L A LA T L H O N G. He noticed it w as this accused w h om they h ad just w a l k ed passed while he w as standing near his h o m e. A c c u s ed did not follow T L A LA T L H O NG passed this witness. W h en this witness turned to see w h at w as chasing after T L A LA T L H O NG the a c c u s ed h ad arrived at this witness a nd he hit h im on the forehead just as this witness tried to grab hold of h i m. M O L A H L E HI fell p e r h a ps u n c o n s c i o us a nd subsequently w e nt into d e ep sleep. He w as a w a k e n ed in the early m o r n i ng h o u rs by the police w ho h ad gathered there at the scene a nd h ad m a de the fire. T h ey invited h im to c o me to the fire a nd w a rm himself u p. He w o ke u p, l o o k ed a r o u nd for his hat w h i ch m u st h a ve fallen off w h en he got a k n o ck on the forehead. He also l o o k ed a r o u nd for his c o m p a n i o n s. He w a l k ed a r o u nd the area searching. He f o u nd his hat a nd s aw his girlfriend w ho w as by then dead. He did not say w h e re T L A LA T L H O NG w a s. He m u st h a ve c o n c l u d ed that as he ran passed t h e m, he left t h em behind. T he accused's defence is a denial. He claims he w as n o w h e re near the s c e ne of the crime at the time of the m u r d er of this deceased. He further claims that M O L A H L E HI has wrongly identifying h im as their assailant on that night. He c a me h o me at or a little after 22.00 hours that night. This w o u ld bring h im h o me around about the time these people were attacked . He claims he heard the cries of help w h i ch the people in the neighbourhood heard w h en these people w e re attacked. On arrival at h o me he briefly called at T H A BO S E N G O A Ts place w h e re he asked for cigarettes. Immediately thereafter he w e nt straight to bed. Thirty minutes after he had g o ne to bed, the accused heard a cry of help first it w as a m a le voice, followed by a female voice. T h e se sort of noises are c o m m on at night in that area, so the accused w as not bothered by that noise according to his evidence. He continued in his sleep. On his arrival at his h o m e, the accused w as led into the house by T U M E LO w ho o p e n ed the door for him. This T U M E LO according to the accused, slept in the s a me r o om with him. T he accused further claims that the track suit trousers, on w h i ch the blood stains of the s a me blood group and with the s a me characteristics as that of the deceased, w e re found, is also w o rn or used by T U M E LO at times although it belongs to this accused. If the court finds that he w as wearing that pair of track suit trousers at the time it got blood stained, the said blood stains found on the track suit pair of trousers according to the accused, are m a de from his o wn blood. A c c o r d i ng to the accused he h ad bled profusely a nd there w as a big patch of b l o od stain c o v e r i ng almost the w h o le of the front of his thigh. It w as not just a c o u p le of small stains as those seen by the police a nd f o u nd by the forensic w ho carried out the test w h i ch determined the s a me to b e l o ng to the s a me p e r s on as the b l o od s a m p le the doctor took f r om the deceased. T h e re is no Preparatory E x a m i n a t i on record in this case. T he original court record w as destroyed in the burning of the H i gh C o u rt c a u s ed by arsonists during Lesotho's political crisis of S e p t e m b er 1 9 9 8. T he Preparatory E x a m i n a t i on record w as contained in that original court file. T he loss of that court file is of no significant or very little indeed if a ny b e c a u se this court relies entirely on the testimony of those witnesses w ho testified before this court. Fortunately the transcript w as m a de of those proceedings. As regards the m u r d er w e a p o n, the knife very similar to it w as s e em by T H A BO S E N G O AI in the possession of the a c c u s ed during early h o u rs of the night of 5th April 1 9 9 4. T h is T H A BO S E N G O AI a nd the a c c u s ed a nd m a ny other p e o p le w e re at the M O T S O E N E NG B ar w h i ch is still in this M A N K O A N E NG village. T h ey w e re drinking alcoholic beverages. T h ey w e re expecting the local football t e am to return f r om M a s e ru w h e re it h ad w on the football finals in w h i ch it h ad just participated. Presumably as supporters of their local football team, they m u st h a ve started celebrating. T he overall m o od of the c r o wd w as a h a p py one. There w as a delay in the arrival of the awaited football team. S o me supporters w e re beginning to disperse and go h o m e. T H A BO S E N G O A I 's girlfriend enquired from h im as to w h en he will be going back h o m e? S he w as in a w ay intimating to h im that they should also go h o m e. This accused produced the knife [Exhibit 1 Before court] and h a n d ed it over to T H A BO S E N G O AI w h om he asked to stab that girlfriend of his. T H A BO S E N G O AI regarded the offer and suggestion as a sick joke. He did not take the knife. He ignored the accused and his offer and suggestion. R o u nd about 22.30hours, after the three people had been assaulted, o ne of t h em had m a n a g ed to go to report the matter to the police. T he o ne police officer found on duty c a me to look for the accused at his h o m e. In the c o m p a ny of the accused's uncle he entered the r o om in w h i ch this accused w as sleeping. After being questioned by his uncle and the policeman about the stabbing with a knife, of the people w ho w e re walking along the road near his h o m e; the accused produced from under his pillow the knife [Exhibit ) ]. T he accused appears to deny producing the knife. He claims that the policeman found it himself under the pillow by lifting up that pillow and by so doing revealing the knife. According to the evidence of the police officer, there w e re traces of fresh blood on the letters engraved on the blade of the said knife. This is the s a me knife w h i ch the accused had in his possession earlier on that night, at M O T S O E N E NG B ar w h e re he offered it to T H A BO S E N G O AI a nd s u g g e s t ed to h im to use it to stab his girlfriend. T he a c c u s ed is f o u nd in possession of a m u r d er w e a p on w h i ch still h ad fresh b l o od on it. T he d e f e n ce counsel unsuccessfully objected to the production of this Exhibit 1 on the g r o u n ds that a c c u s ed w as forced to h a nd it over to the police officer. In his e v i d e n ce the a c c u s ed s e e m ed to say that it w as the police officer w ho f o u nd it u n d er his pillow. In short he did not p r o d u ce it u n d er coercion or otherwise. After h a n d i ng over the m u r d er w e a p o n, according to the e v i d e n ce of the police officer, the a c c u s ed t o ok the h im together w i th the accused's uncle to the place w h e re they f o u nd the d e c e a s ed on her b a c k, legs apart a nd dress a nd petticoat rolled up to her chest. H er panties h ad b e en r e m o v e d. T h ey c a me to the b o dy of the d e c e a s ed after following the trail of the b l o od they f o u nd in the p a s s a ge or gravel road by the accused's h o m e. It is this accused's e v i d e n ce that they s aw a trail of b l o od w h i ch they followed. A c c o r d i ng to the e v i d e n ce of the police officer, the a c c u s ed w as m a k i ng the indications. At this stage it really d o es not matter w ho led the w a y. T he a c c u s ed d o es not say w h at kind of light assisted h im to see a trail of b l o od on the g r o u n d, a nd be able to follow it until they arrived at its source. It is this trail of blood w h i ch led t h em to the b o dy of the deceased. T he c r o wn case will fail or s u c c e ed d e p e n d i ng on the e v i d e n ce of the identity of the assailant of the d e c e a s ed a nd her c o m p a n i o n s. On that night of 5th April 1 9 9 4, the d e c e a s e d, her boyfriend M O L A H L E HI T H A BO N Y A I SI a nd their m a le c o m p a n i on T L A LA T L H O NG h ad b e en drinking at the s h e b e en there in their village, M A N K O A N E N G. T h ey w e re m o d e r a t e ly d r u nk a c c o r d i ng to the e v i d e n ce of M O L A H L E HI T H A BO N Y A I S I. He told the court that he w a l k ed steadily a nd that his s p e e ch w as n ot slurred. In short he w as in full control of all his faculties. A l t h o u gh he w as challenged that he c o u ld n ot positively identify this a c c u s ed as their assailant that night of 5th April 1 9 9 4, this witness M O L A H L E HI T H A BO N Y A I SI m a i n t a i n ed his stance that he k n o ws the a c c u s ed v e ry well. T h ey live in the s a me village, M A N K O A N E N G. T he w i t n e ss e m p h a s i s ed the point that he k n ew the a c c u s ed well before this incident, by indicating that if it w as n ot b e c a u se of their difference in a ge they could h a ve b e en drinking together. B ut b e c a u se the a c c u s ed is too y o u n g, he h as not offered to or received an offer h i m s e lf of a cigarette s m o k e, f r om the a c c u s ed person. C o l l e a g u es or m a t es offer e a ch other cigarettes. T h at m e a ns o ne m ay k n ow the other w i t h o ut necessarily b e i ng colleagues or m a t e s. T h is witness k n o ws the a c c u s ed p e r s on by n a me a nd as a child of the o w n er of the s h op in that village. T he three w a l k ed in a line, o ne after the other. T he w i t n e ss M O L A H L E HI T H A BO N Y A I SI w as in front. He w as f o l l o w ed by his girlfriend, the d e c e a s e d, then c a me T L A LA T L H O N G, last of all. T h ey w a l k ed p a s s ed the accused's uncle's shop. This shop a nd the house w h e re this accused slept that night are in the s a me yard. According to this witness the accused w as just standing against the fence outside his yard on that road w h i ch these three people w e re travelling on that night. Shortly after passing the accused, this witness heard T L A LA T L H O NG cry out thus:- "Here is a person stabbing m e ." This witness turned to see w h at w as taking place behind him. He s aw that T L A LA T L H O NG w as injured as he ran passed him. He s aw that this accused w as chasing after h i m. T he witness grabbed hold of the accused. According to h i m, he grabbed hold of the accused in order to ask the accused w hy he w as attacking them. Simultaneously as that occurred, the accused hit h im on the forehead with something w h i ch he did not see. This witness fell unconscious until perhaps early hours of the next morning. This is an eye witness w ho identified the accused at the time this accused perpetrated the alleged crime. Another type of evidence w h i ch connects this accused with the alleged crime, is in the form of blood stains found on his pair of trousers. W h i le the accused w as at the C h a r ge Office on 6th April 1994, o ne of the investigators of this case, Detective Sergeant M O S U H LI noticed blood stains on the pair of track suit trousers w h i ch the accused w as wearing. T he accused w as ordered to take t h em off. T h o se trousers together with the blood sample taken from the b o dy of the deceased during post m o r t em examination, w e re sent to the laboratory for forensic tests. T he Forensic scientist, M a j or B U L A RA K H O M O H A KA received the t wo items:- blood sample of ' M A M O O K HO S K O Z A N A, deceased a nd the pair of track suit trousers f r om Detective Trooper K H O B O T LO of Leribe Police. As a result of the test, the scientist c a me to the conclusion that the blood stains on the pair of track suit trousers w o rn by the accused, c a me from the injuries sustained by the deceased M A M O O K HO S K O Z A N A. T he claim by this accused that the blood stains on the pair of track suit trousers w e re his o wn blood is rejected as false. A c c o r d i ng to the accused, there w e re no stains on his trousers but a big patch of blood stain almost covering his w h o le thigh. This claim c a me very late. No c r o wn witness w ho claimed to have seen stains on the accused's trousers w as challenged to s h ow that it w as a big patch not small stains as they told the court. It w as a very belated claim at the end of defence case. It w as clearly a lie. It w as totally unrelated to the cross- examination of the c r o wn witnesses on that point. At first it appeared to be this accused's contention that there w e re no stains at all on his pair of trousers as claimed by c r o wn witnesses. This change of his m i n d, that n ow there w as this big patch of blood stain covering almost the w h o le of his thigh, destroys completely his first explanation. Giving t wo inconsistent versions of the existence or otherwise of the blood stains on his pair of trousers, a m o u n ts to a failure to give satisfactory explanation. S v H U T C H I N S O N 1 9 9 0 ( l ) SA CR 1 49 at 1 5 0 -a This pair of track suit trousers h ad not b e en w o rn by this a c c u s ed in the last t wo w e e ks preceding the attack of the d e c e a s ed a nd h er c o m p a n i o n s. A l t h o u gh the blood stains f o u nd on it m ay be f r om the b l o od of the d e c e a s e d, those stains did not c o me there during the t i me the said trousers w as w o rn by this accused. A l t h o u gh not in so m a ny w o r d s, this appears to be the suggestion m a de by or on behalf of the accused, in the cross-examination of the c r o wn witnesses. A w e ek before the date of the death of the deceased, this a c c u s ed s aw T U M E L O, a p e r s on w ho lives with h i m, w e a r i ng that pair of track suit trousers. A c c u s ed told the court that he p i c k ed up that pair of trousers to w e ar before he slept on 5th April 1 9 94 b e c a u se it w as particularly chilly that night. He denies that he w as w e a r i ng it prior to his g o i ng to bed. T he evidence of T H A BO S E N G O A I, the person w ho w as earlier on that e v e n i ng of 5th April 1 9 94 offered a knife [Exhibit 1] a nd advised by this a c c u s ed to u se it to stab his girlfriend, told the court that the a c c u s ed w as w e a r i ng a d a rk bluish pair of track suit trousers. This is the very s a me pair he w as f o u nd w e a r i ng by the police officer w ho f o u nd h im sleeping on that night of the 5th April 1 9 9 4. T he a c c u s ed w as taken to the c h a r ge office, w h e re in the early m o r n i ng h o u rs of 6th April 1 9 9 4, that very s a me pair of track suit trousers w as o b s e r v ed to h a ve b l o od stains a nd taken off h im by Detective Sergeant M O S U H L I. T he police officer w ho arrested the accused, P W9 also testified to the effect that he s aw blood stains on accused's trousers that night of his arrest. T he determination of the identity of the assailant of the deceased and her c o m p a n i o ns is helped to a great extent by the finding of fresh blood from the victim on the assailant. S v H U T C H I N S ON 1 9 90 (1) SA CR 1 49 at 1 5 0 -a T he blood stains on this accused's pair of trousers w as the s a me blood g r o up as that of the deceased. It w as proved by the forensic scientist by tests he carried out, to h a ve exactly the s a me characteristics as the blood s a m p le taken from the deceased. It must, therefore be held to be the stains m a de by the deceased's blood at the time of her attack m o re especially considering their freshness w h en they w e re first observed by the police officers w ho investigated this case. T he identification of this accused by P W7 is disputed on the grounds that it w as dark that night. T he witness persisted in his testimony that there w as light. He s aw that the accused w as wearing a hat. This the accused accepts. T he evidence of the c r o wn witness s h o ws that at the accused person's uncle or father's s h op they use gas light. This light aluminates the w h o le area in the neighbourhood of that s h op according to the witness. This w as not disputed. T he accused told the court that those w o r k i ng in the s h op r e m a i n ed counting the m o n ey after the s ho w as closed at about 8 p m. T he only suggestion m a de against this factor w as that the s h op w as closed. It w as put to the witness that the s h op w as closed. T h is witness did not dispute the fact of closure. He could not say w h e t h er the s h op w as closed or o p e n. All he s aw w as the light. It e m e r g ed f r om the evidence of the a c c u s ed that e v en t h o u gh the s h op w as closed, the light w as not put out. T h o se w o r k i ng in the s h op according to this accused r e m a i n ed counting the day's takings. T h e re is no evidence before this court that the light w as actually put out T he suggestion w as m a d e, to the effect that w h en the s h op closes, the light is put out. C o u ld the m o n ey be counted with the light out? It is m o st probable that the light w as there. T he accused w as w e a r i ng a hat w h i ch covered h a l f o r w h o le of his forehead. It w as put to the witness that he could not identify the p e r s on w h o se forehead w as c o v e r ed by the hat. T he witness indicated that although his forehead w as covered, his face w as not covered a nd he s aw clearly that it w as this accused. M u ch later, the accused, his uncle a nd the police officer w ho arrested this accused, f o l l o w ed along the very s a me route the trail of b l o od trail w h i ch led t h em to the deceased. T he time of the assault of these three people w ho h ad b e en to the s h e b e e n, the deceased a nd her c o m p a n i o n s, is put r o u nd a b o ut 1 0 . 0 0 p . m. P W7 w as not quite certain of the exact time. He felt that it m u st h a ve b e en after 8 or 9 p.m. T h ey w e re chased a w ay f r om the shebeen. P r e s u m a b ly b e c a u se it w as late. T he police officer to w h om the report of assault w as m a d e, h ad just c o me on duty at ten (10.00 p . m . ). He estimated the time he got to the scene of the crime to be at a b o ut ten-thirty (10.30 p.m.). T he accused suggests that he arrived at his h o me after 10.00 p . m. T h at b e i ng the case, the deceased a nd his c o m p a n i o ns h ad already b e en assaulted or the assault w as just about to take place, since they w e re assaulted r o u nd a b o ut 10.00 p . m. Strangely e n o u gh the a c c u s ed claims to h a ve n ow h e a rd the cries of help by first the m a le voice w h i ch should be T L A LA T L H O N G 's a nd then the f e m a le voice, w h i ch should be the deceased's voice w h en he w as already in b ed a nd asleep. T h at is not true. He w as out there c o m m i t t i ng the alleged crimes. T he tune he suggests he arrived at his h o m e, is approximately the s a me time w h en the alleged crimes w e re being c o m m i t t ed in the n e i g h b o u r h o od of his h o m e. As regards the cause of death there is no dispute. T he d e c e a s ed according to the evidence of the doctor w ho p e r f o r m ed the p o s t m o r t em e x a m i n a t i on died f r om the stab w o u nd on her left e l b ow joint a nd another w o u nd on the right a r m. A c c o r d i ng to the doctor's evidence h ad the deceased received i m m e d i a te m e d i c al treatment, s he w o u ld h a ve survived. It s o u n ds incredible that this d e c e a s ed died f r om stab w o u n ds on the e l b ow joint a nd a r m. T he other victim of that attack, did not fall d o wn a nd die. He ran a w ay a nd later w e nt to report the matter to the police. F r om the police station he w as s e nd to the doctor. He died m u ch later, after the Preparatory E x a m i n a t i on in respect of this case, w as conducted. T h e re is is no evidence that s he h ad b e en falling all along the w ay d ue to her drunkenness. T he degree of d r u n k e n n e ss of the deceased a nd her c o m p a n i o ns d o es not e x c u se the accused or a n y w ay f r om respecting t h em a nd their rights. T h is court is satisfied that M O L A H L E HI T H A BO N Y A I SI w as moderately drunk. He w as in full control of his faculties until he w as k n o c k ed out by the b l ow on his forehead f r om this accused. E v en although T L A LA T L H O NG w as the first victim of that vicious assault by this accused, he got a w a y. H is cries for help w e re the first o n es to be heard by M O L A H L E HI T H A BO N Y A I S I, T H A BO S E N G O AI a nd the accused. Thereafter according to T H A BO S E N G O AI a nd this a c c u s ed followed the cry of help f r om a female voice, w h i ch should be of the deceased. Quite a lot s e e ms to h a ve h a p p e n ed to her. T he m a n n er in w h i ch her b o dy w as f o u nd indicates clearly that s he w as in addition sexually assaulted. E v i d e n ce s h o ws that, there w as s o me whitish substance on her private parts a nd legs. T h at whitish substance could h a ve b e en s o me s e m e n. T he doctor w as not asked to investigate the possibility of a c r i me of rape having b e en c o m m i t t ed u p on her despite the a b u n d a n ce of other indications to that effect. T he charges put to this accused are (1) m u r d er (2) A t t e m p t ed m u r d er and (3) assault. Count 1 is murder of M A M O O K HO S K O Z A N A. Count 2 is attempted murder of T L A LA T L H O N G. Count 3 is assault of M O L A H L E HI T H A BO N Y A I S I. To all three charges the accused is found guilty. In respect of the murder charge the accused is found guilty of murder with direct intent. S E N T E N CE T he accused has been convicted of the crime of m u r d er with extenuating circumstances. This accused is n ow (25) twenty five years old. At the time of the c o m m i s s i on of this crime this accused w as said to be u n d er the a ge of ( 1 8) eighteen years. There is a law, w h i ch prohibits the sending to jail, of y o u ng offenders under the age of (18) eighteen years. T h o se y o u ng offenders should be released into the care and custody of their parents or guardians. T he apparent intention of the legislator by enacting as it did, this piece of legislation, w as to protect such juveniles from being put a m o n g st criminals. T h e re are no special juveniles detention centres or training institutes here in Lesotho, w h e re the y o u ng offenders could be rehabilitated. This enactment s e e ms to p r e s u me that every juvenile has a parent or guardian w ho has full control over h im or her. T he parent or guardian is expected to exercise the full control a nd supervision over the juvenile. It is also important that the juvenile m u st be a m e n a b le to be subjected to the control a nd supervision of the parent or guardian w ho m u st be able to correct a nd rehabilitate the juvenile. L o o k i ng at the present case, we find that the a c c u s ed c o m m i t t ed the c r i me of w h i ch he h as b e en convicted at the time w h en he w as reported to be u n d er the a ge of eighteen ( 1 8) years. He h as since b e c o me a m a j or of ( 2 5) twenty-five years. T he senior probation officer h as pointed out, in his report presented before this court, the objectives of the policy of the Probation Unit. It is primarily intended to rehabilitate the juvenile w ho h a ve c o m m i t t ed petty offences. Therefore the policy applies with s o me relevancy w h e re the crimes c o m m i t t ed by the y o u ng p e r s o ns are petty offences. T he a c c u s ed in this case, is no longer a juvenile b e c a u se he is n ow twenty five years of age. F u r t h e r m o r e, the c r i me he h as b e en convicted of, is n ot a petty o n e. T h e se factors r e m o ve h im out of the a m b it of the l aw w h i ch protects juveniles f r om b e i ng sent to prison. L e a r n i ng is a lifetime process, but there is an a ge limit as regards the length of the period during w h i ch the fruits of a person's learning m ay be of s o me use for his or her benefit. T h is a c c u s ed left schooling at an early a ge w h en he w as only d o i ng Standard { 4} four. He h as b e en out of school for m a ny years n o w. T h is m u st be an a d d ed h a n d i c ap on this a c c u s e d, in his e n d e a v o ur to benefit f r om that statutory provision for the protection of y o u ng offenders. T he a c c u s ed has not only b e c o me a m a j o r, but he is presently in prison - w h e re he is serving a sentence after h a v i ng b e en convicted of o ne of the very serious offences. T h is offence for w h i ch he is serving a term of i m p r i s o n m e n t, m u st h a ve b e en c o m m i t t ed while he w as awaiting this trial after he h ad attained the majority a g e. T he p u r p o se for w h i ch he w as to be k e pt out of prison h as fallen a w a y. He is n ow m i x i ng in prison with other criminals. It w o u ld not serve a ny useful p u r p o se to try a nd k e ep h im out of jail. By leaving school at that early a g e, by c o m m i t t i ng these serious offences, h o u se breaking with intent to steal a nd theft a nd this m u r d er this a c c u s ed h as indicated that he has e m a n c i p a t ed himself f r om minority status a nd therefore d o es no longer n e ed the protection provided by this act P R O T E C T I ON OF M I N O RS A C T. T he present m u r d er c r i me w as very callously c o m m i t t e d. He w as b r a g g i ng in a public place s h o w i ng off the m u r d er w e a p on w h i ch he offered to his friend w h om he urged to stab his girlfriend for no g o od reason. H a v i ng b e en ignored by his friend w ho f o u nd the offer to stab his girlfriend a very sick j o k e, the a c c u s ed s h o u ld h a ve b e en restrained. It w as thereafter that he attacked a nd stabbed the d e c e a s ed a nd her friends. T he probation officer's report s h o ws he is a p e r s on w ho is a l w a ys striving to impress other m i s g u i d ed older b o y s. He s h o u ld be r e m o v ed f r om those older b o y s' b ad influence. He d o es n ot s e em to accept to be u n d er the control of his uncle w ho should be the father figure to h im since his father h as left h im w i th his m o t h e r. H is m o t h er appears to h a ve no p o w er to control n or supervise h i m. W e i g h i ng this accused's interest against those of the society at large, there s e e ms to be a great n e ed to k e ep h im in prison than outside. He is sentenced to six m o n t hs on e a ch c o u nt of assault. He is sentenced to 12 years on a count of m u r d e r. Sentences to r un concurrently. K. J. G U NI J U D GE 2nd February 2 0 00 For Defence: M r. Putsoane For C r o w n: M r. L e n o no