R v Tsoauoa (CRI/S 8 of 89) [1989] LSCA 59 (26 May 1989)

CRI/S/8/89 IN THE HIGH COURT OF LESOTHO In the matter between: REX v THABISO TSOAUOA Before the Honourable the Chief Justice Mr. Justice B. P. Cullinan on the 26th day of May, 1989. For the Crown For the Accused : In Person : Mr. S. P. Sakoane, Crown Counsel JUDGMENT Cases referred to: (1) S v Magao (1959)1 S. A. 489 (AD) (2) S m i t hy Desmond (1945)1 All E. R. 976 (H. L.) (3) Rv Tebbie & Anor. (1945)3 SA 776 (S. R.) The accused was convicted by the Subordinate Court of the First Class for Thaba Tseka district of robbery. The appellant pleaded guilty. He agreed with a statement of facts and was duly convicted. 'After the accused had spoken 1n mitigation the record reads: -2- "Sentence: Committed for sentence by High Court." The offence was committed on 15th January, 1989* so that I presume the learned trial. Magistrate committed the accused for sentence under section 293(1) of the Criminal Procedure & Evidence Act, 1981, in view of the minimum sentence of 10 years' imprisonment provided by the Revision of Penalties Order 1988. Section 293(1) reads as follows: "293. (1) Where on the trial by a subordinate court a person whose apparent age exceeds 18 years is convicted of an offence, the court may, if it is of opinion that greater punishment ought to be inflicted for the offence than it has power to inflict, for reasons to be recorded in writing (of) on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence." It will be seen that a Magistrate must record his reasons for committing an accused for sentence. In the present case no reasons at all were given. More importantly, it will be seen that (i) The use of the words "opinion" and "may" indicate that the court's power in the matter is discretionary and (ii) the court may commit the accused "instead of dealing with him in any /... -3- other m a n n e r ", but that such d i s c r e t i on may only be e x e r c i s ed if the court (iii) "1s of o p i n i on that g r e a t er p u n i s h- ment ought to be inflicted for the o f f e n ce than it has power to i n f l i c t ." In the p r e s e nt case the learned trial M a g i s t r a te had no power to deal with the accused "1n any other m a n n e r ", nor, as will be s e e n, 1n any m a n n er at a l l. The m a t t er of sentence is not d i s c r e t i o n a ry in the present c a s e, that i s, any sentence less than 10 y e a r s' i m p r i s o n m e n t: the statutory m i n i m um sentence is that of 10 y e a r s' i m p r i s o n m e n t. F u r t h e r, there is no q u e s t i on that "greater p u n i s h m e nt ought to be i n f l i c t e d" than the M a g i s t r a te had power to i n f l i c t: the p o s i t i on was that it was s t a t u t o r i ly m a n d a t o ry that greater p u n i s h m e nt had to be imposed than the M a g i s t r a te had power to i m p o s e. Q u i te clearly the p r o v i s i o ns of section 2 9 3 ( 1) e m b r a ce the situation w h e re the M a g i s t r a te has the power to i m p o se a p u n i s h m e n t, up to the m a x i m um of his p a r t i c u l ar j u r i s d i c t i o n, but c o n s i d e rs that in the c i r c u m s t a n c es of the c a s e, a g r e a t er p u n i s h m e nt should be i m p o s e d. In the case of a statutory m i n i m um sentence which exceeds the M a g i s t r a t e 's j u r i s d i c t i o n, the M a g i s t r a t e 's opinion in the m a t t er as to an a p p r o p r i a te s e n t e n ce (less than the statutory m i n i m u m) is i r r e l e v a n t. In brief I c o n s i d er that section - 4- 293(1) has no application to the present case. Further, the learned trial Magistrate ventured upon a trial when 1t was quite clear to him that 1f the accused were convicted of the offence charged he would have no power to punish him. Section 293(1) provided no answer to the situation. The object of trial is surely to convict and to appropriately punish the guilty, and also of course to acquit the innocent. If there is no power to punish, then I cannot see that there is any power to try and convict. In brief, in my judgment the learned trial Magistrate had no power to enter a conviction in the present case. In the circumstances, the learned trial Magistrate should not have embarked upon the trial. Having done so however, I do not say that he would have lacked for jurisdiction if he, for example, had found a lesser offence to have been proved and had entered a conviction in respect of such lesser offence. Such, I consider, was the situation here. The statement of offence did not reveal the identity of either of two persons who broke and entered the female complainant's house at night. The statement indicated that one of the two stabbed her 1n the hand, whereupon she fled to the house of a neighbour nearby. Thereafter property was stolen from her house. It was not stolen 1n her presence, /... - 5- but it was in her presence when violence was e x e r c i s e d: see S v Magao (1) and S m i t hy Desmond ( 2 ). Hunt in his work South African Criminal Law & Procedure Vol.11 at p.646 is critical of the decision 1n the review case R v Tebbie & A n o r. (3) and comments t h u s: "It 1s accordingly submitted: first, that 'presence' is a matter of degree very much bound up with the particular circumstances. Secondly, that it 1s inaccurate to say that the taking must be in Y's presence: it is the property which must be in Y's presence when X puts his plan of violence into execution. Any other conclusion would be ludicrous. It would involve holding that X is not guilty of robbery if by violence he makes Y run miles away so that X can ransack his house when Y has gone. Thirdly, that the thing 1s outside the limits of Y's perception when Y is assaulted and/or the thing is taken is indecisive, though 1n an appropriate case 1t may be a circumstance relevant to deciding whether 1t is 1n his 'presence'." In my view a robbery was c o m m i t t e d, but the identity of the robbers was not e s t a b l i s h e d. The only aspect to incriminate the accused was that he led the police to where the stolen items were hidden in a field, indicating guilty k n o w l e d g e. The inference of robbery may certainly be d r a w n, but on the facts before the learned trial M a g i s t r a te that was not the only reasonable inference. There was no evidence in particular as to when the appellant led the police to the field: it could have been as much as 3 days after the c r i m e. A n o t h e r, the only other r e a s o n a b le i n f e r e n c e, was that the accused received the stolen goods - 6- knowing them to have been s t o l e n. In such c i r c u m s t a n c es the Court should not have drawn the i n f e r e n ce which had graver c o n s e q u e n c es for the a c c u s e d, as it was clearly u n s a fe to do so. Under the c i r c u m s t a n c es the c o n v i c t i on of the Court below 1s set aside and there is substituted t h e r e f or . a c o n v i c t i on of r e c e i v i ng stolen goods knowing them to have been s t o l e n. As to s e n t e n c e, the accused is a first o f f e n d e r, who pleaded g u i l t y. He has been 1n prison for four m o n t h s, that i s, the e q u i v a l e nt of a sentence of six m o n t h s' i m p r i s o n m e nt with r e m i s s i o n. The value of the goods stolen was c l e a r ly n e g l i g i b l e. In all the c i r c u m s t a n c es I sentence the accused to one y e a r 's i m p r i s o n m e nt with effect from t o - d a y. D e l i v e r ed at M a s e ru This 26th day of M a y, 1 9 8 9. (B. P. C U L L I N A N) CHIEF J U S T I CE