IN THE HIGH COURT OF LESOTHO
In the Appeal between
(Duly assisted by her Appellanthusband
Emmanuel Monyeke) Applicant
Delivered by the Honourable Mr. Justice J.L. Kheola on the 28th day, 1988
The appellant and another person who has not appealed were convicted of the theft of the sum of M1,767-00 by a first class magistrate at Butha Buthe. They were sentenced to eighteen (18) months' imprisonment without the option of a fine. The appellant is unhappy with the sentence only and she is appealing on the following grounds
The appellant was not represented in the action since it was heard within thirty-six (36) hours of appellant being taken into police custody.
The applicant nurses an eight months old baby who is breast-fed. Admittedly appellant did not invoke this mitigating factor before the sentence was passed because she was frightened -it being her first appearance in court,
The sentence causes a sense of shock since it does not give appellant the option of a fine taking into consideration the minor role she played in this crime
Before considering the grounds of appeal in detail it will be necessary to give a summary of the facts of the case which were admitted by the appellant and her friend before they were convicted and sentenced. On the 24th day of November, 1987 the complainant withdrew from the bank the sum of Ml,767-00. During the same evening he went to Pholosa night-club where he met the appellant's co-accused. He proposed love to her and she accepted his proposal. They made arrangements for the booking of a room at the night-club so that they could sleep together. They found a room and went to bed together. The complainant was very drunk and fell asleep.
While he was asleep appellant's co-accused searched complainant's luggage and took the sum of Ml,767-00 and left the room while the complainant was still fast asleep. She took the money to the appellant. They bought beer and drank it together till small hours of the following day. Before they parted the balance of the money was given to the appellant and she was told that the money was stolen and she was asked by her friend to hid, it at her place. The appellant agreed and hid it under some bricks outside her house.
When the appellant woke up he noticed that his money was missing He reported the matter to the police who made some investigations and finally arrested the appellant and her friend. them The appellant led,them to her house and pointed out the stolen money. The money recovered was M1,018-30 and the appellant's co-accused explained how she had used the balance of the money which was nut recovered (M 748-70). It is not clear from the record whether the appellant was involved in the use of the money which was never recovered. It is a fairly large amount which could not be used to buy the beer they drank for the few hours they were together.
The first ground of appeal may be disposed of by showing that an accused person is not bound to have legal representation and if he or she does not inform the court that she or he would like to have legal representative in the trial the court has a right to assume that he or she has decided to appear in person. The appellant in the present case did not indicate to the trial court that she intended to instruct an attorney to appear on her behalf. The first ground of appeal must fail.
The second ground must also fail because it is admitted by the appellant herself that she never informed the court that she had an eight month old baby who was breast-fed. The trial ocur. could not have guest this fact. In any case, I doubt if this factor could be taken as a mitigating factor entitling the appellant to an option of a fine. The child was old enough to remain with its father or other relatives when the appellant went to gaol.
The third ground of appeal is the one that has to be given some serious thought. It has been pointed out in a number of decisions of this Court that before passing sentence magistrates must give their reasons. Those decisions have been deliberately ignored by almost all magistrates The tendency is to give reasons for sentence when the accused person lodges an appeal. repeat that reasons for sentence must be given before the sentence is passed. The accused person must know why he is sent to prison without the option of a fine.
In the present case the appellant is a first offender and should be informed why she was not given the option of a fine
considering that in addition to that she played a smaller role in the theft than her co-accused. There was no proof that she was involved in the use of the balance of the money which was never recovered. I agree with the trial court that this was a serious case involving a substantial amount of money, and that deceit and cunning were involved in the perpetration of the crime, but there were other factors which had to be considered, such as, the appellant is a first offender and pleaded guilty and thereby showed remorse (Nthongoa and another v. Rex, 1980 (1) L L.R 196 a p. 197, Thabo Monne and another v. Rex, CRI/A/110-111/84 (unrepoted) that a greater part of the money was recovered and the appellant, co-operated with the police in their investigations
In the case of Rabuka v. Rex, CRI/A/67/37 (unreported) specifically informed magistrates that I regard it as an irregular procedure to pass sentence without giving any reasons and without considering mitigating factors advanced by the accused. Since that decision the appellants who appear before this Court invar. refer to it and claim that the reasons filed by the magistrate after the appeal was lodged are an afterthought and should be ignored.
I have come to the conclusion that because of the irregular stated above this Court is at large as to what sentence to impose. The appeal is upheld. The sentence imposed by the court a quo s ... aside and I substitute a sentence of M200-00 or 6 months' imprisonment.
J U D G E
28th March, 1988.
For the Appellant - Miss Lelosa
For the Respondent - Mr. Mokhobo.