R v Thejane (C of A (CRI) 4 of 8) [2008] LSCA 31 (17 October 2008)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru In the matter between : REX and C OF A CRI ( ) 4/08 APPELLANT LETSEMA THEJANE RESPONDENT CORAM : RAMODIBEDI P , SMALBERGER JA , MOSITO AJA , Heard : Delivered : October 2008 October 2008 SUMMARY Criminal Law Sentence following a murder conviction – The trial – years sentence imposed to court backdating the whole of the August 1995 31 as a means to compensate for inordinate delay in Accordingly the respondent not The propriety or , ordered to serve any custodial sentence at all bringing the respondent to trial 10 – – otherwise of the sentence . JUDGMENT RAMODIBEDI P , [1] This appeal pertinently raises the question of the propriety or otherwise of backdating the whole of the 10 years imprisonment imposed on the respondent following a murder conviction as a means in the learned trial Judge’s , words , “to compensate for the unconstitutional delay” in bringing the respondent to trial . [2] The respondent was indicted on a charge of murder . It was alleged that upon or about 31 August 1995, and at or near Ha Mpalipali in the district of Mafeteng the respondent , did unlawfully and intentionally kill his wife namely one , , Masekoati Limakatso Thejane “the deceased” ( ). [3] The circumstances leading up to the deceased’s senseless killing are in my view as disturbing as the history of the case itself as will become apparent shortly . Spurred on by a mere rumour the respondent suspected the , deceased of infidelity When the latter “disappeared” for . three days and failed to return from a trip which she had undertaken by mutual consent the respondent took this as , confirmation of his suspicion of her infidelity . Upon the deceased’s return on 31 August 1995 he mercilessly murdered her using an iron rod and repeatedly stabbing her with what , the respondent himself referred to as a “long” knife in the process . The respondent was arrested and remanded in custody It is common cause that he was released on bail . after six months . [4] At his trial which only commenced on , January 22 2008, an unconscionable delay of twelve (12) years after the alleged murder of the deceased the respondent pleaded guilty to , culpable homicide The Crown however rejected this plea , , . , insisting that the facts disclosed murder . Thereafter , the defence admitted all the depositions of witnesses taken at the preparatory examination in 2003. Since these depositions admittedly disclosed the commission of murder , the learned trial Judge had no difficulty in returning a verdict of guilty of murder with extenuating circumstances There is . no challenge directed at that finding . [5] On 25 January 2008, the learned trial Judge sentenced the respondent to 10 years imprisonment . Acting on the recommendation of both counsel for the Crown and the respondent respectively he backdated the sentence to , 31 August 1995. This as stated previously was “to compensate , , for the unconstitutional delay” in bringing the respondent to , trial The effect of this was that the respondent did not . serve any custodial sentence at all following his conviction for murder . [6] That the learned trial Judge was justifiably perturbed by the inordinate delay in the matter admits of no doubt . This case demonstrates the ugly side of the failure of our criminal justice system in graphic terms . There is no acceptable explanation from all those concerned why an incident which took place in 1995 was only brought to trial in a period spanning twelve 2008, (12) years To make matters . worse the preparatory examination was only held in , 2003. The indictment itself is dated 30 January 2004, a period of nine (9) years after the commission of the alleged offence . The trial court was duly informed by the Crown that the indictment was “received” by the High Court on May 6 2004 for “enrolment” and that “it was only sent back to the DPP’s office for trial this year [ ] 2008. ” [7] Once again there is no explanation to show why the matter took four years to come to trial after the indictment had been filed with the High Court All of the aforegoing . undoubtedly serve to bring our criminal justice system into disrepute . If it will help as I think it should it is of , , fundamental importance to remember the salutary remarks of this Court per Smalberger JA in Nomoro Edwin Ketisi v The Director of Public Prosecutions C of A CRI No ( ) . 9/06 , namely :- 18.“ , , . . I return to the problem of unreasonable delays in the prosecution of cases The causes of the problem and how it is ultimately to be resolved are matters that fall beyond the scope of this judgment Suffice it to say that it would seem that there are deficiencies at all levels of the criminal justice system contributing to the problem that the problem needs to be addressed and that steps should be taken towards its resolution or at least amelioration as a matter of urgency . the As a Court of Appeal we are concerned about consequences of the delays and what can be done by the infringement of an accused’s courts to guard against constitutional right to a fair hearing within a reasonable time involved in the a concern that should be shared by all , , , – judicial process ” . [8] I turn then to determine the appropriateness or otherwise of backdating the whole of the 10 years imprisonment imposed on the respondent A good starting . point is to recognise that the imposition of sentence is a matter which lies within the discretion of the trial court An . appellate court is reluctant to interfere with the exercise of such a discretion in the absence of a misdirection resulting in a miscarriage of justice . It must be recognised however , , that section 9 (4) of the Court of Appeal Act 1978 confers additional power on this Court to quash the sentence imposed by the trial court and pass such other sentence warranted in law if it thinks that a different sentence should have been passed . See for example Ramaema v R 2000 – LAC at 710 733 ; Molikeng Ranthithi Another v Rex In ; & the Cross Appeal of - Rex v Molikeng Ranthithi Others C of & A CRI No ( ) . 12/07 . [9] As this Court has repeatedly held sentence must have , regard to the triad consisting of the offence the offender , and the interests of society See for example . Basia Lebeta v Rex C of A CRI No ( ) . 1/08; Molikeng Ranthithi ’s case supra S ; v Zinn 1969 (2) SA 537 ( A . ) [10] There can be no doubt in the instant matter that in backdating the whole of the 10 years imprisonment the trial court understandably angered by the unconscionable delay , previously alluded to considered only , the personal circumstances of the respondent . In so doing the court clearly erred It failed to attach due weight to the brutal . nature of the offence as well as the interests of society . In this regard I discern the need to repeat the following apposite remarks which I had occasion to make in Molikeng Ranthithi ’s case supra :- “ [36] , Zinn 1969 (2) In determining a proper sentence in this case it is necessary to have regard to the triad consisting of the offence the , S v offender and the interests of society See for example As regards the consideration relating to the crime committed there can be no doubt that murder is a very serious offence indeed This Court believes in the sanctity of human life It is in the interests of society . that people convicted of murder be put away for a long time . A ). 537 ( SA . . , . , This is so in order to protect society itself against such There must also be a distinction drawn between people sentences for murder and sentences for culpable homicide . Viewed in this way I accept that the sentences in this case , ranging as they do from “a sentence to a period until the rising of the court” in respect of the third sixth and eighth years respondents the second respondent are conviction in the Such sentences in my view , imprisonment inadequate for a murder circumstances of this case , sentence in respect of effective woefully 4 an to of , . amount to a travesty of justice ” . [11] Furthermore I find no difficulty in concluding that the , trial court misdirected itself in effectively equating the pre - trial delay in the matter to a period of imprisonment I draw . attention to the following apposite remarks of this Court in Sehloho Monatsi Others v Rex C of A CRI No ( ) . 4/05:- & [5]“ Both counsel also pointed out that the learned Judge in back dating the sentence in the manner reflected in the , - Case sited above had applied the wrong principle , Section . a of the Criminal Procedure and Evidence Act 1981 376 (2) ( ) the Act provides ) ( insofar as relevant that – : – ‘ (2) …. When the accused – )a ( is ultimately sentenced to imprisonment , the time during which he is released on bail shall be excluded in computing the term for which he is so sentenced ’ …. It is common cause that all the three appellants were out on bail from the time of their arrest until the date of their conviction by the trial court No fault can be found with a . court taking into account the period of detention an accused it is person has undergone whilst awaiting trial However not proper and indeed unlawful to back date a sentence to allow the period of pre trial delay whilst out on bail to be It would have the equated to a period of imprisonment sentences of imprisonment being reduced because they were out on bail It is pending their trial intended each appellant to serve a This was a patent misdirection absurd result of accused ‘s three . . . . ] all , , , - - [ clear that the Court aquo sentence of years imprisonment However by back , . 25 1996 ( January or December dating the sentence to 1 sentences by some - without stating whether it was the court effectively reduced their years One can only assume that the trial court had laboured under the misconception that until the date of the Appellants had been in gaol from This Court was therefore 31), or December judgment ; . . 14 2004. 1996 9 8 i e . obliged to reconsider the sentences imposed by the High Court ” . [12] It follows from the foregoing considerations that the appeal succeeds The following order is made : . (1) The appeal is upheld . (2) The trial court’s order backdating sentence to August 1995 is set aside . (3) 10 years confirmed The sentence of . reckoned from imprisonment imposed on the respondent by the trial court Such sentence shall be is taking into 25 months period which the respondent spent in custody while awaiting trial . account 2007, July 6 the __________________ . . M M RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL I agree : __________________ . J W SMALBERGER . JUSTICE OF APPEAL I agree : __________________ . K E MOSITO . ACTING JUSTICE OF APPEAL For Appellant For Respondent : : . Adv R R Rammina . Adv N K Lesuthu . .